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Thursday, April 25, 2019

Castro v Renteria, 2019 WL 1761546 (D. Nevada, 2019)[Mexico]`[Wrongful removal][Petition denied]

          In Castro v Renteria, 2019 WL 1761546 (D. Nevada, 2019) before the Court was Respondent Bertha Hernandez Renteria’s Objections to the Magistrate Judges First Report and Recommendation (“First R&R”), and “Second Report and Recommendation”. The Court denied the petition for return.

          This case concerned a petition to return an eight-year old child to Mexico Z.F.M.Z, presently resided in the United States with Respondent (her grandmother). Petitioner was Z.F.M.Z.’s half-sister. Z.F.M.Z. was born in Las Vegas, Nevada on November 23, 2009, to Rusia Michel Zamora (“Rusia”), her mother, and Raul Flores Hernandez (“Raul”), her father. Rusia and Raul thereafter returned to Mexico with Z.F.M.Z. In Mexico, Z.F.M.Z. lived primarily with Rusia, and part of the time with Raul. In April of 2014, however, Rusia disappeared. After Rusia’s disappearance, Raul and Respondent both cared for Z.F.M.Z. through an informal arrangement. Respondent cared for Z.F.M.Z. on the weekdays, and Raul cared for her on the weekends. Z.F.M.Z. would also spend time with Petitioner. In May of 2017, Raul and Petitioner initiated custody proceedings against Respondent before a judge in the Sixth Judicial District Court of the State of Jalisco, Mexico (“Jalisco court”). Raul received custody over Z.F.M.Z, on May 8, 2017, for the pendency of those custody proceedings. Nevertheless, Z.F.M.Z. resided with Petitioner and her family on the weekends and some weekdays, and other times with Raul. That arrangement ended when Raul was arrested upon allegations of drug trafficking, after which, according to Petitioner’s testimony, Raul informally gave Petitioner custody over Z.F.M.Z. As the custody proceedings continued in the Jalisco court, Respondent received short-term “provisional custody” allowing her to take Z.F.M.Z. to be interviewed by a psychologist. That term of provisional custody was initially set for August 11, 2017, to August 18, 2017, when another custody hearing was to take place.  However, after Respondent appeared at the August 18, 2017 hearing without Z.F.M.Z. and without a psychological report, Respondent received an extension of provisional custody to September 8, 2017.  Respondent was not allowed to leave the State of Jalisco or Mexico with Z.F.M.Z. during those times.

 On August 30, 2017, Petitioner informed the Jalisco court that Respondent had left Mexico with Z.F.M.Z. That same day, the Jalisco court entered an Order prohibiting Respondent from leaving Mexico with Z.F.M.Z., set a hearing for September 8, 2017, and authorized a warrant for Respondent’s arrest. Respondent, however, failed to appear at the September 8, 2017 hearing. The Jalisco court then received a letter on September 13, 2017, from Respondent, stating that she would be staying in the United States indefinitely with Z.F.M.Z. Moreover, as of August 31, 2017, Respondent had enrolled Z.F.M.Z. in a Las Vegas, Nevada elementary school. On July 4, 2018, Petitioner filed an initial application for the return of Z.F.M.Z. with the Jalisco court, naming the Jalisco court judge as the petitioner. That application was returned, however, as needing more information. Petitioner then submitted a complete application to the Mexican Central Authority on August 20, 2018. About three days later, the United States Department of State received that application.   On September 7, 2018, Petitioner filed her Complaint with the Court. During a case-management conference on September 26, 2018, the Court imposed a visitation schedule. One day after the Court’s case-management conference, Respondent obtained a guardianship order over Z.F.M.Z. from the Family Division of the Eighth Judicial District Court for Clark County, Nevada.

          The Court then held an evidentiary hearing on the merits of this case on November 9, 2018, with Judge Hoffman presiding. Judge Hoffman filed a Report and Recommendation concerning the merits of Petitioner’s Complaint on November 29, 2018. which recommended, among other things, that the Court grant Petitioner’s Complaint pursuant to the Hague Convention, and order Respondent to return Z.F.M.Z to Mexico.

          On the merits of the petition, Judge Hoffman concluded that Petitioner “established by a preponderance of the evidence a claim for return of [Z.F.M.Z.] to Mexico under the Hague Convention.”. Specifically, Judge Hoffman found that “petitioner had custody rights and was exercising those rights at the time respondent absconded from the Mexican court’s jurisdiction and wrongfully retained [Z.F.M.Z.].”  The basis for this finding was Respondent’s concession that Mexico was Z.F.M.Z.’s habitual residence, and Petitioner had been exercising custody rights in Mexico at the time of the wrongful act. see Hague Convention, Art. 3, 19 I.L.M at 1501; Mozes v. Mozes, 239 F.3d 1067, 1070 (9th Cir. 2001) (explaining that an act is “wrongful” under the Hague Convention when the petitioner’s rights “were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.”).

          Respondent’s first objection to the Second R&R concerns the conclusion that this case is based on Respondent’s “wrongful retention” of Z.F.M.Z. in the United States, rather than “wrongful removal” of Z.F.M.Z. from Mexico. The focus of Respondent’s objection to classifying this case as one of wrongful retention lies with that classification’s practical effect on Respondent’s timeliness defense pursuant to the Hague Convention. Typically, wrongful removal refers to the respondent unilaterally taking the child out of their habitual residence in violation of the petitioner’s rights and without the petitioner’s permission. Cf. Lozano v. Montoya Alvarez, 572 U.S. 1, 9 (2014). By contrast, wrongful retention most often refers to the respondent keeping the child out of their habitual residence beyond the time authorized by the petitioner. Silverman v. Silverman, 338 F.3d 886, 897 (8th Cir. 2003); cf. Mozes, 239 F.3d at 1070–71, 1084–85. Determining whether a case is based on wrongful removal rather than retention not only decides the wrongful conduct at issue, but it also dictates the timeliness of a petition pursuant to the Hague Convention. A petition filed less than one year from wrongful removal or retention generally requires return of the child to her country of habitual residence. See Hague Convention, art. 1, I.L.M. at 1501; see also Abbott v. Abbott, 560 U.S. 1, 7, 8, 20 (2010). Conversely, a petition filed more than one year after wrongful conduct is subject to a “well-settled” defense under Article 12 of the Hague Convention—a defense that permits courts to depart from the general mandate of “order[ing] the return of the child.” Lozano v. Montoya Alvarez, 572 U.S. 1, 19 (2014) (Alito, J., concurring); see Hague Convention, art. 12, 19 I.L.M at 1502.

           Judge Hoffman’s Second R&R considered this case as one of wrongful retention because Respondent held “provisional custody” on August 11, 2017, until September 8, 2017; and Respondent “wrongfully retained” Z.F.M.Z. in the United States when Respondent failed to appear at the Jalisco court’s custody hearing on September 8, 2017. [R]espondent’s failure to appear at the court-ordered hearing on September 8, 2017, was the earliest unequivocal act when petitioner should have known that respondent had wrongfully retained [Z.F.M.Z.].”). The Second R&R alternatively noted that Respondent’s intent to remain in the United States became “unequivocally clear” when the Jalisco court received a letter from Respondent on September 13, 2017, declaring her intention to remain in Las Vegas with Z.F.M.Z. The commencement date for the one-year period under Article 12, according to the Second R&R, thus began on September 8, 2017, or, at the latest, on September 13, 2017. Based on those dates, the petition was timely filed. However, upon de novo review of the facts in this case, the Court found that this matter was one of wrongful removal. Though Respondent failed to appear at the Jalisco court’s hearing on September 8, 2017, and subsequently notified the Jalisco court on September 13, 2017, that she would not be returning to Mexico with Z.F.M.Z., Respondent had no right to take Z.F.M.Z. to the United States. On August 30, 2017, Petitioner notified the Jalisco court that Respondent had wrongfully left Mexico with Z.F.M.Z.  The Jalisco court then entered an order that same day imposing travel restrictions on Respondent, preventing her from leaving Mexico with Z.F.M.Z. during the pendency of custody proceedings. As Petitioner stated in her verified petition, “Petitioner never acquiesced or consented to the relocation of Z.F.M.Z. in the United States.” Moreover, Respondent’s provisional custody over Z.F.M.Z. between August 11 and September 8, 2017, only allowed Respondent to obtain a psychological report of Z.F.M.Z., with no facts showing a corresponding right to leave Mexico to seek that report. Respondent’s relocation of Z.F.M.Z. in the United States—without permission from Petitioner nor the Jalisco court, and in violation of Petitioner’s existing rights—therefore constituted wrongful removal as of August 30, 2017.

          Because the Court found that this case arose from Respondent’s wrongful removal of Z.F.M.Z. as of August 30, 2017, the petition for return of Z.F.M.Z. to Mexico was not timely filed with the Court within one year of the wrongful act that forms the basis of this case.; see, e.g., Muhlenkamp v. Blizzard, 521 F. Supp. 2d 1140, 1152 (E.D. Wash. 2007) (“The petition must be filed with the court of record, not the Central Authority, to file within the one-year limitation.”).

          In the Second R&R, Judge Hoffman found that Respondent proved, by a preponderance of the evidence, that Z.F.M.Z. was “well-settled” in the United States pursuant to Article 12 of the Hague Convention. Judge Hoffman based that finding on a thorough analysis of testimony from Z.F.M.Z., Z.F.M.Z.’s cousin, and Z.F.M.Z.’s teacher in Las Vegas. (Id. 15:14–16:2). No party objected to Judge Hoffman’s finding that Z.F.M.Z. is presently “well settled” in the United States. The Court could accept Judge Hoffman’s findings on this issue without further examination. Because Z.F.M.Z. was well-settled in the United States, the Hague Convention did not mandate the return of Z.F.M.Z. to Mexico for custody proceedings. See Hague Convention, art. 12, 19 I.L.M at 1502.

          Nevertheless, Petitioner argued that even if Z.F.M.Z. was well-settled, the Court could still order her return to Mexico based on equitable considerations surrounding Respondent’s wrongful acts. In re B. Del C.S.B., 559 F.3d 999, 1016 (9th Cir. 2009); Margain v. Ruiz-Bours, 592 F. App’x 619, 621 (9th Cir. 2015); Lozano, 572 U.S. at 20, 23. However, the facts surrounding this case did not warrant such discretionary action. In deciding whether to order the return of Z.F.M.Z. to Mexico although she was well-settled in the United States, the Court’s analysis began with whether Respondent concealed Z.F.M.Z.’s whereabouts after the wrongful removal. Judge Hoffman’s factual findings on the “well-settled” issue, alongside evidence presented during the evidentiary hearing, guided the Court’s discretionary decision to not order the return of Z.F.M.Z to Mexico. Specifically, Judge Hoffman highlighted testimony from Z.F.M.Z.’s teacher in Las Vegas, which revealed Z.F.M.Z.’s significant improvement in English, her participation in school activities, and several school awards that she achieved. Testimony from the evidentiary hearing also revealed how Z.F.M.Z.  made “three best-friends” in her new environment, and that Z.F.M.Z had family in the United States that supported her academic and recreational interests. Judge Hoffman thus concluded that Z.F.M.Z. “has established significant connections to Las Vegas.” Additionally, the record did not reveal an effort to conceal Z.F.M.Z. after her entry into the United States. Similar to In re B. Del C.S.B., 559 F.3d 999, 1016 (9th Cir. 2009), concealment was not a factor here, and thus did not favor returning Z.F.M.Z. to Mexico now that she was well-settled in the United States. Last, unlike in Fernandez, the party from whom the child was wrongfully taken (here, Petitioner) can litigate custody issues in the United States. Compare Fernandez, 909 F.3d at 365. By contrast, Respondent provided evidence that, because she removed Z.F.M.Z. from Mexico amid custody proceedings in the Jalisco court, Respondent had an outstanding warrant for her arrest in Mexico. Respondent therefore would likely be severely limited in litigating custody in Mexico, if capable of litigating at all. Further, Petitioner presented testimony from an expert in child psychology, revealing an opinion that Z.F.M.Z. “lives in constant fear” of separation from Respondent. Accordingly, the Court would not order discretionarily return Z.F.M.Z. to Mexico.  See In re Robinson, 983 F. Supp. 1339, 1346 (D. Colo. 1997) (“[T]he Convention has essentially decided that, once settled in the new environment, to again uproot the children would be harmful. In that sense the ultimate best interests of the children are served by denying the petition.”). The Court denied the petition under the Hague Convention.

Friday, April 19, 2019

Griffiths v Weeks, 2018 WL 7824477 (S.D. Florida, 2018)[Australia] [ Habitual residence] [Petition denied]

          In Griffiths v Weeks, 2018 WL 7824477 (S.D. Florida, 2018) the district court denied the Petition of Jema Griffiths, a citizen and resident of Australia for the return of her minor child M.W., on the ground that at the time of the wrongful retention the child’s habitual residence was Florida.

          Griffiths and Weeks met via Facebook in early 2013 and initiated a relationship in April 2013. At the time, Griffiths was 16 and Weeks was 20 years old. For approximately two years, Griffiths and Weeks maintained a romantic relationship via Facebook. In March 2015, Weeks traveled to Griffiths’ family home in Australia to meet Griffiths in person for the first time.  During this trip, Griffiths became pregnant with M.W. At the conclusion of the trip, Griffiths and Weeks ended their relationship. In April 2015, Griffiths learned she was pregnant and informed Weeks of the pregnancy. Griffiths gave birth to M.W. in Australia on December 19, 2015.

          After the child’s birth, Griffiths brought M.W. to her family home where she cared for the child with the help of her mother. On February 14, 2016 when M.W. was approximately two months old, Weeks traveled on a round-trip airline ticket to Australia to meet his daughter. While there, Griffiths’ mother gave Weeks an opal ring which he used to propose to Griffiths on February 20, 2016. By March 2016, Griffiths and Weeks began discussing their plans to travel to the United States. Griffiths expressed some concerns about her ability to afford and access necessities for M.W. in Australia, and Weeks reassured Griffiths that once she arrived in the United States, they would be able to provide completely for M.W. During these conversations, Weeks encouraged Griffiths to get a six-month tourist visa for travel to the United States so that they could get married. On May 11, 2016, Griffiths, Weeks, and M.W. traveled to the United States. Weeks traveled on the return leg of his round-trip ticket and Griffiths and M.W. traveled separately on a different plane. Griffiths testified that she and M.W. traveled to the United States to meet Weeks’s family, while Weeks testified that the parties intended to marry while in the United States. When Griffiths and M.W. arrived at in Los Angeles, Griffiths was denied entry. According to Griffiths, during questioning at the airport, Griffiths—who was traveling on a tourist visa—told customs and border officials that she was engaged to be married to Weeks but that she was not planning to stay in the United States. Griffiths and M.W. returned to Australia without admission to the United States. Griffiths testified that after she returned to Australia with M.W., Weeks told her that he was working with lawyers and his family to get her to Florida so that she, Weeks, and M.W. could be together as a family. In June, Weeks returned to Australia for the second time, and Weeks, Griffiths, and M.W. traveled together to Mexico. According to Weeks, after Griffiths had been denied entry to the United States in May, Griffiths and Weeks decided they would get married in Mexico and then travel together as a family to the United States where they would ultimately settle. Griffiths, on the other hand, testified that she was only traveling to Mexico with plans to continue on to the United States temporarily and intended to return to Australia.

          On August 17, 2016, Weeks and M.W. traveled to Florida on one-way plane tickets, and on August 18, 2016, Griffiths traveled back to Australia. Weeks brought both M.W.’s and Griffiths’s belongings to Florida. Griffiths testified that the purpose of her trip to Australia was to complete the fiancĂ© visa process and to attend to complications from a medical procedure she had while in Mexico. In late August of 2016, Griffiths demanded that Weeks bring M.W. to Australia. Weeks refused. In November, Griffiths and Weeks began the K-1 visa application process. Although Griffiths initially testified that she did not sign the K-1 visa, upon questioning from the Court she stated that she intended to apply for the K-1 visa and that she electronically signed it. Griffiths also testified that she sent Weeks a portion of the fees required for the K-1 visa. In November 2016, the parties received notification that the K-1 visa had been processed and that Griffiths was scheduled for an interview. Griffiths testified that she never received notification for the K-1 visa interview and that she never attended the interview. Facebook messages between Griffiths and Weeks demonstrated that she was at least aware the interview was scheduled. 

          The district court observed that the Hague Convention does not define the term “habitual residence.” The Eleventh Circuit, however, has determined that “[t]he first step toward acquiring a new habitual residence is forming a settled intention to abandon the one left behind.” The analysis of the settled intent of the parents is far from formulaic; rather, the Court must examine the specific circumstances and actions of the parties to establish a shared intent to establish a particular residence. Such mutual shared intention need not be established over a long period of time. Under the second step, the Court looks to how settled and acclimatized the child is in the country of alleged wrongful retention. However, this factor carries less weight when the child is very young and “the customary considerations in analyzing habitual residence from the point of view of the child are not easily applicable.” Specifically, “acclimatization is an ineffectual standard by which to judge habitual residence in such circumstances because the child lacks the ability to truly acclimatize to a new environment.”). Accordingly, in determining habitual residence of a young child such as M.W. here, the Court must give greater weight to the subjective intentions of the parents, as opposed to the settled intent of the child herself. Berezowsky v. Ojeda, 765 F.3d 456, 466 (5th Cir. 2014); Karkkainen v. Kovalchuk, 445 F.3d 280, 287 (3d Cir. 2006)); Holder v. Holder, 392 F.3d 1009, 1020–21 (9th Cir. 2004).

          The record before the Court demonstrated that Griffiths and Weeks had a mutual shared intent to establish M.W.’s habitual residence in the United States. In May 2016 after their engagement, Griffiths and Weeks developed plans to move the family to the United States. Their first attempt to relocate failed when Griffiths was detained by customs and border officials at the Los Angeles airport. During their second attempt, Griffiths and Weeks traveled first to Mexico with the intent to first marry in Mexico and then to travel together as a family to the United States. Griffiths packed the items that she and M.W. would need in the United States, including her travel documents, necessities, jewelry, and other valuables including Griffiths’s stone collection and her mermaid tail. While in Mexico, Griffiths and Weeks met with attorneys to determine how Griffiths could legally relocate to the United States with Weeks and M.W. who are both U.S. citizens. They determined that the most efficient way to relocate was by applying for a K-1 visa. In furtherance of that plan, Griffiths signed the Travel Authorization which gave permission for M.W. to travel with Weeks to the U.S. while she returned to Australia so that she could apply for the visa. Griffiths paid a portion of the K-1 visa fee and signed the K-1 visa application. She and Weeks discussed possible places to live together in South Florida and Griffiths identified a bar in Fort Lauderdale where she planned to apply to work as a mermaid entertainer. Despite the couples’ tight finances, she invested in a mermaid tail so that she could secure that position. Griffiths and Weeks also decided that they would stay with Espinosa Weeks for no more than one year while they became settled before securing their own home. Griffiths and Weeks discussed with family members that they planned to relocate Florida, including with Griffiths’s stepmother and Espinosa Weeks who prepared for M.W.’s arrival by purchasing a crib and other age-appropriate necessities that included diapers, bottles, and formula.

          The court found that beginning in May 2016, Griffiths and Weeks shared a mutual intent to relocate to the U.S. and took concrete steps to achieve that intent. Ruiz v. Tenorio, 392 F.3d 1247, 1253 (11th Cir. 2004). This was sufficient to establish M.W.’s habitual residence in the United States. See Falls v. Downie, 871 F. Supp. 100 (D. Mass. 1994) (finding habitual residence established in the United States after parents decided to relocate and mother later decided not to join the child and father in the United States). After this shared mutual intent to relocate to the United States was formed, Griffiths could  not unilaterally change M.W.’s place of habitual residence simply because she changed her mind about moving to the U.S. Mozes, 239 F.3d at 1077. As such, the record evidence that Griffiths later vacillated about relocating to the U.S. and that the parties maintained a complicated and rocky relationship since that shared mutual intent was formed did not disturb the Court’s finding. Moreover, while Griffiths testified that she never intended to move permanently to the United States, the Court found that testimony not credible nor supported by the record.

          As to acclimatization, while this factor held less weight given the young age of the child, it supported a finding of habitual residence in the United States. M.W. had resided in Australia for six months, Mexico for two months, and the United States for nineteen months as of the filing of the Petition. Respondents Weeks and Espinosa Weeks, as well as Victor Espinosa Weeks, testified that M.W. was well adjusted in the United States and regularly attended age-appropriate activities with family and through the local church. She was cared for in Florida by Espinosa Weeks while Weeks attended law school in New York, was developing normally for her age, attended required doctor’s appointments, and by all accounts was thriving in Florida. This testimony regarding her acclimation in the United States was uncontroverted. There was little testimony to support M.W.’s acclimation in any other country besides the United States.

Monday, April 15, 2019

Saada v Golan, 2019 WL 1317868 (E.D. New York, 2019)[Italy] [Grave risk of harm] [Undertakings] [Petition granted]

In Saada v Golan, 2019 WL 1317868 (E.D. New York, 2019) the district court granted the petition of Isacco Jacky Saada, against Narkis Aliza Golan, for the return of his two-and-a-half-year-old son, B.A.S., to Italy. 

The 31-year-old petitioner, an Italian citizen, was born and resided in Milan, Italy. The 28-year-old respondent, an American citizen, was born in Brooklyn, New York, and resided in New York. They were married on August 18, 2015, in Tel Aviv, Israel. The parties lived in Italy after the marriage. B.A.S. was born in Milan in June of 2016 and had dual Italian and American citizenship. Mr. Saada and Ms. Golan filled out and signed various documents for B.A.S.; they got him an Italian passport, medical coverage, identification cards, and a certificate of residence. They continued to live in the same apartment, and B.A.S. received all of his medical care in Italy. On July 28, 2017, while she and Mr. Saada were in the United States, Ms. Golan applied for a Social Security card for B.A.S., but did not tell Mr. Saada. Ms. Golan returned to Italy, because Mr. Saada promised to change, “work on” their marriage and go to counseling. On July 18, 2018, Ms. Golan and B.A.S. flew to the United States, with Mr. Saada’s consent, to attend Eldar Golan’s wedding. Although they were scheduled to return to Italy on August 15, 2018, Ms. Golan stayed in New York, and moved to a confidential domestic violence shelter. Ms. Golan claimed that she never agreed to live permanently in Italy or to have B.A.S. live there. But Mr. Saada never agreed to move to the United States. On September 19, 2018, Mr. Saada filed a criminal complaint in Milan, accusing Ms. Golan of kidnapping B.A.S. He initiated this action the next day. He also commenced civil proceedings in Italy. (Mr. Saada subsequently filed for sole custody of B.A.S. in Italy. 

The evidence established that Mr. Saada and Ms. Golan fought frequently, and that Mr. Saada physically, psychologically, emotionally and verbally abused Ms. Golan. He admitted that he slapped, pushed, and grabbed Ms. Golan. He estimated that he slapped Ms. Golan five or six times, pulled her hair three or four times, pushed her four or five times, threw a glass bottle during an argument, yelled, swore, and called her names. He also told Ms. Golan’s family that he would kill her, although he said he made the threat only out of anger. Mr. Saada admitted that he tried to restrain Ms. Golan, got “violent,” was “impulsive,” “los[t] control” when he got “angry,” and hit Ms. Golan “to shut her up.” Mr. Saada and Ms. Golan fought “on a daily basis.” Mr. Saada was “sure” that B.A.S. heard “screaming and fighting and yelling.” Although Mr. Saada was far and away the more violent, there were times when Ms. Golan fought with and yelled at him. She conceded that she scratched and kicked Mr. Saada, and verbally abused him. According to Mr. Saada, Ms. Golan slapped him a few times, scratched him about ten times, bit him about five or six times, spit in his face, kicked him, and often yelled at him. She called him names, insulted his family, and at one point said that she wished his family would die. There was no significant evidence that Mr. Saada was intentionally violent to B.A.S. Ms. Golan frequently left B.A.S. with Mr. Saada while she ran errands, or went out with friends. She also testified that she wants B.A.S. and Mr. Saada to have a relationship. 

The parties called four experts in the area of domestic abuse and its effects on children.
They agreed that domestic violence can have a significant effect on a child, even if the child is not the target of the violence. The experts also agreed that exposure to Mr. Saada’s undisputed violence toward Ms. Golan, including verbal, emotional, psychological, and physical abuse, posed a significant risk of harm to B.A.S. Two experts testified about the Italian legal system’s approach and capacity to handle cases of domestic violence.

          The parties agreed that Ms. Golan removed B.A.S. from Italy with Mr. Saada’s consent, that she retained him in the United States without Mr. Saada’s consent, in breach of Mr. Saada’s “rights of custody,” as defined in Article 5(a) of the Hague Convention, under Italian law, and that Mr. Saada was exercising those rights when Ms. Golan kept B.A.S. in the United States. Mr. Saada proved that Italy was the child’s habitual residence at the time Ms. Golan kept him in the United States. 

The district court noted that the Convention does not define “habitually resident,” but the Second Circuit instructs courts to make the following inquiries: First, the court should inquire into the shared intent of those entitled to fix the child’s residence (usually the parents) at the latest time that their intent was shared. In making this determination the court should look, as always in determining intent, at actions as well as declarations. Normally the shared intent of the parents should control the habitual residence of the child. Second, the court should inquire whether the evidence unequivocally points to the conclusion that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents’ latest shared intent. Gitter, 396 F.3d at 134. “In the easy case,” the parents agree on the child’s habitual residence; in most Hague Convention cases, the parents do not agree on the issue. Id. at 133. “It then becomes the court’s task to determine the intentions of the parents as of the last time that their intentions were shared,” which “is a question of fact in which the findings of the district court are entitled to deference.” Id. The habitual residence inquiry requires consideration of “the unique circumstances of each case.” Holder v. Holder, 392 F.3d 1009, 1016 (9th Cir. 2004).

The Court concluded that Italy was B.A.S.’s habitual residence at the time Ms. Golan kept him in the United States. B.A.S. was born in Italy and lived there until the summer of 2018 when Ms. Golan brought him to the United States. The parties’ only shared residence was in Italy, where they lived for more than a year before B.A.S. was born, and it became B.A.S.’s home as well. He went to pre-school in Italy, his doctors were there, as was his extended family. Before Ms. Golan brought him to the United States, B.A.S. had left Italy only three times, for short trips. See Holder, 392 F.3d at 1020 (“[I]f a child is born where the parents have their habitual residence, the child normally should be regarded as a habitual resident of that country.”).

The Court rejected Ms. Golan’s argument  that she and Mr. Saada never shared a settled intent that Italy would be B.A.S.’s habitual residence, that she conditioned her own residence in Milan on Mr. Saada’s promise to change, a promise he did not keep, and that she and B.A.S. lived in Italy only because Mr. Saada exercised coercive control over her. Ms. Golan’s actions showed that she intended that Italy be B.A.S.’s habitual residence. She established a home with Mr. Saada in Milan, and continued to live there with him after B.A.S. was born. Ms. Golan participated in decisions about B.A.S.’s life in Milan. She and Mr. Saada enrolled him in school, got him a pediatrician, and secured various forms of Italian identification for him. Cf. Guzzo, 719 F.3d at 104-05 (parents agreed mother would have custody of child and child would attend school in New York, mother home-schooled the child in English, and child was insured through Medicaid and received primary medical treatment in the United States). While Ms. Golan might have hoped to move to the United States, her actions established B.A.S. as a habitual resident of Italy. the parties’ last shared intent was to have B.A.S. live in Italy. Thus, Italy was the child’s habitual residence at the time Ms. Golan kept him in the United States.

The court found that Ms. Golan has met her burden of proving one affirmative defense— “grave risk of harm.” The Court pointed out that Article 13(b) of the Convention provides that “a grave risk of harm” from repatriating the child to the country of habitual residence arises “in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.” Souratgar, 720 F.3d at 103 According to the Second Circuit, “[t]he potential harm to the child must be severe, and the level of risk and danger required to trigger this exception has consistently been held to be very high.” The grave risk determination includes both “the magnitude of the potential harm” and “the probability that the harm will materialize.” Id. The grave risk exception “is to be interpreted narrowly, lest it swallow the rule.”. The respondent must prove grave risk of harm “by clear and convincing evidence.” 22 U.S.C. § 9003(e)(2)(A).
The Second Circuit instructs courts considering this question to take care to differentiate between “those situations where repatriation might cause inconvenience or hardship, eliminate certain educational or economic opportunities, or not comport with the child’s preferences,” and “situations in which the child faces a real risk of being hurt, physically or psychologically, as a result of repatriation.” Blondin v. Dubois (“Blondin II”), 238 F.3d 153, 162 (2d Cir. 2001). The former situations are not considered grave risks of harm; the latter are. The grave risk of harm need not take the form of direct physical abuse to the child. A history of spousal abuse “though not directed at the child, can support the grave risk of harm defense, as could a showing of the child’s exposure to such abuse.”); see also Ermini, 758 F.3d at 164–65 (spousal abuse can establish a grave risk of harm to the child in certain circumstances). “[A] sustained pattern of physical abuse and/or a propensity for violent abuse” that poses “an intolerably grave risk to the child” can establish the exception to the preference for repatriation. Souratgar, 720 F.3d at 104 
 However, the history of domestic violence is relevant only “if it seriously endangers the child.” Souratgar, 720 F.3d at 103-104. “The Article 13(b) inquiry is not whether repatriation would place the respondent parent’s safety at grave risk, but whether so doing would subject the child to a grave risk of physical or psychological harm. “Sporadic or isolated incidents” of physically disciplining the child, “or some limited incidents aimed at persons other than the child, even if witnessed by the child” are generally not grave risks of harm. 

There was no dispute that Mr. Saada was violent—physically, psychologically, emotionally, and verbally—to Ms. Golan, or that B.A.S. was present for much of it. Nor was there any dispute that a child who is exposed to domestic violence, even though not the target of abuse, could face a grave risk of harm. Accordingly, Ms. Golan established by clear and convincing evidence that returning the child to Italy would subject the child to a grave risk of harm.

Having found that repatriation posed a grave risk of harm to B.A.S., the court had to  consider whether there are “any ameliorative measures (by the parents and by the authorities of the state having jurisdiction over the question of custody) that can reduce whatever risk might otherwise be associated with the child’s repatriation.” Blondin I, 189 F.3d at 248. “In cases of serious abuse, before a court may deny repatriation on the ground that a grave risk of harm exists under Article 13(b), it must examine the full range of options that might make possible the safe return of a child to the home country.” Blondin II, 238 F.3d at 163, n.11. It directed the parties to propose ameliorative measures that could achieve this goal.

Ms. Golan took the position that there were no steps that would protect B.A.S., and no way to ensure that Mr. Saada would comply with them.  Mr. Saada  agreed to the following undertakings:” (1) he will give Ms. Golan $30,000 before B.A.S. is returned to Italy for housing accommodations without restriction on location in Italy, financial support, and legal fees; (2) he will stay away from Ms. Golan until the Italian courts address this issue; (3) he will pursue dismissal of criminal charges against Ms. Golan relating to her abduction of B.A.S.; (4) he will begin cognitive behavioral therapy in Italy; and (5) he waives any and all rights to legal fees or expenses under the Hague Convention and ICARA for the prosecution of this action. In addition, Mr. Saada is to provide the full record of these proceedings, including trial transcripts, court filings, exhibits, undertakings, expert reports, and decisions of this Court to the Italian court presiding over the custody proceeding. Mr. Saada is to provide a sworn statement with the measures he will take to assist Ms. Golan in obtaining legal status and working papers in Italy. Mr. Saada must also drop any current civil actions against Ms. Golan in Italy based on the abduction of B.A.S., and must not pursue any future criminal or civil actions against her in Italy based on the abduction.” 

Based on these undertakings and conditions, which the Court concluded sufficiently ameliorated the risk of harm to B.A.S. upon repatriation, the petition was granted. 

Wtulich v Filipkowska, 2019 WL 1274694 (E.D. New York, 2019)[Poland] [habitual residence] [petition granted]

In Wtulich v Filipkowska, 2019 WL 1274694 (E.D. New York, 2019) Petitioner Nikodem Wtulich (“Wtulich”) sought the return of his daughter AW to Poland. With the parties’ consent, the magistrate judge presided at a bench trial of the matter. He found that AW habitually resided in Poland, that Wtulich was exercising parental control until Filipkowska wrongfully retained AW in this country, and that AW was not settled in this country in the pertinent legal sense. Wtulich was therefore entitled to have AW returned to him.

The court found that AW was born in 2008 in Warsaw, Poland. Her parents were never married to one another. AW lived mostly with Filipkowska in Pisz, Poland, but Wtulich regularly spent time with her, playing soccer and celebrating holidays together. Wtulich also made decisions regarding AW’s travel outside of Poland. He twice granted the requisite permission for AW to obtain a passport, allowing Filipkowska to travel with AW to the United States several times between 2008 and 2013 to visit family in New York. In June 2013, Wtulich again gave his consent to Filipkowska to travel to the United States with AW, this time to attend her brother’s wedding. On this occasion Wtulich believed only that he was consenting to have AW spend about three months in New York before returning to Poland; he and Filipkowska discussed choosing a school in Poland for AW to attend upon her return in the fall. In September 2013, after taking AW to the United States based on Wtulich’s consent for her to be there for about three months, Filipkowska informed Wtulich via Skype that she wanted to stay in the United States longer and enroll AW in kindergarten in New York. Wtulich expressed his disagreement with the plan, but eventually agreed. Thereafter, Filipkowska stopped communicating with Wtulich except through emails.  Notwithstanding Filipkowska’s decision to extend AW’s stay in the United States, Wtulich expected AW would have to return to Poland shortly because she was traveling on a tourist visa that permitted her to stay in this country only for six months. In December 2013, however, Filipkowska informed Wtulich that she intended to retain AW in the United States so that she could attend kindergarten in New York. Fearing that he would risk losing contact with AW forever if he objected, Wtulich sent an email to Filipkowska stating that he was “happy to hear that [she] made this decision,” and that this was “also good for [AW] because [he would] rather she went to kindergarten there. That same month, however, concerned that Filipkowska intended to keep AW in the United States indefinitely, Wtulich spoke with an attorney. Wtulich maintained contact with AW through regular Skype calls, and in April 2014, he traveled to the United States for two weeks to spend time with AW. He also planned to discuss her return to Poland. Instead, sometime around May 2014, Filipkowska informed Wtulich of her intent not to return to Poland with AW. Wtulich again spoke with an attorney and, on June 12, 2014, filed an ICARA Application with the Department of State. AW’s passport expired in 2015, and Filipkowska requested Wtulich’s permission to renew it. Wtulich refused. Instead, he filed the Petition in this case on June 7, 2016. 

Filipkowska, her new husband, and AW now resided in New Jersey. AW attends school there; she excels in her education and was enrolled in several activities, including swimming and tennis. She had several friends in the United States, as well as a dog and a cat. While she spoke basic Polish, she did not read or write in that language. She preferred to remain in the United States but lacked the legal status that allows her to do so. 

The parties agreed that until Filipkowska brought AW to the United States on June 24, 2013, AW’s habitual residence was Poland. The Court credited Wtulich’s testimony in general, and in particular his assertion that he did not consent to AW remaining in the United States indefinitely. The court found that the parties’ last shared intent was for AW to return from her summer 2013 vacation in the United States and reside in Poland.  The court had to consider whether, notwithstanding the parents’ intent, “the evidence points unequivocally to the conclusion that the child has become acclimatized to his new surroundings and that his habitual residence has consequently shifted.” Gitter, 396 F.3d at 133. A fair reading of the record compelled the conclusion that AW’s attachments were all in the United States. The latter finding, however, was in tension with the Convention’s objective “to dissuade parents ... from engaging in gamesmanship with a child’s upbringing in order to secure an advantage in an anticipated custody battle.” Gitter, 396 F.3d at 134. Indeed, “courts should be ‘slow to infer’ that the child’s acclimatization trumps the parents’ shared intent” because “[p]ermitting evidence of acclimatization to trump evidence of earlier parental agreement could ‘open children to harmful manipulation when one parent seeks to foster residential attachments during what was intended to be a temporary visit.’” Id. (quoting Mozes v. Mozes, 239 F.3d 1067, 1079 (9th Cir. 2001)); see also Mota v. Castillo, 692 F.3d 108, 116 (2d Cir. 2012) (“It would frustrate the objectives of the Convention if a parent or guardian could secure an advantage in an anticipated custody dispute merely by whisking the child away to a foreign land, and retaining her there long enough to amass evidence of the child’s acclimatization to the new location.”) (citing Gitter, 396 F.3d at 134). While considering evidence of acclimatization makes sense where it occurred during a period of shared parental intent about a child’s residence, doing so where the acclimatization occurs only as a result of one parent’s unilateral decision frustrates the Convention’s purpose. See Mohácsi v. Rippa, 346 F. Supp. 3d 295, 313 (E.D.N.Y. 2018) (collecting cases); Ordonez v. Tacuri, 2009 WL 2928903, at *6 n. 8 (E.D.N.Y. Sept. 10, 2009) (“[I]t would be inappropriate to consider the period of time after the alleged wrongful removal in the acclimatization analysis, as this could reward the [allegedly] abducting parent for the time during which the child was [allegedly] wrongfully retained or removed.”). Accordingly, the court considered evidence of AW’s acclimatization only to the extent it occurred between her arrival in the United States in June 2013 and May 2014, when Filipkowska told Wtulich that she intended to retain AW in the United states. AW began that period accustomed to living in Poland, where she had habitually resided for her entire life. Over the course of the next eleven months, she attended kindergarten for an entire school year. There was no additional cognizable evidence of her acclimatization. Thus, considering both parental intent and acclimatization, it concluded that AW’s habitual residence was in Poland.

There were no judicial or administrative decisions or legally binding agreements defining Wtulich’s or Filipkowska’s rights of custody. However, they agreed that each has parental authority and that Wtulich’s permission was necessary for AW to obtain a passport. Wtulich exercised his rights at the time of the alleged wrongful retention. Prior to AW’s vacation to the United States, He exercised his parental authority by granting permission for her to obtain a passport. Indeed, Filipkowska does not dispute that Wtulich exercised his rights of custody over AW. Thus, Filipkowska’s retention of AW in the United States, absent Wtulich’s consent, constituted a breach of Wtulich’s custody rights. See In re Skrodzki, 642 F. Supp. 2d 108, 114-115 (E.D.N.Y. 2007). The court found that Wtulich established a prima facie case of wrongful retention under the Convention.

Filipkowska argued that the court should dismiss the Petition because Wtulich filed it more than a year after she removed AW to the United States, and because AW was now settled in her new environment. The court held that although Wtulich did not file the Petition within one year of the wrongful retention, AW was not sufficiently settled in the United States to defeat his right under the Convention to her repatriation to her habitual place of residence in Poland. 

Wtulich filed the petition in June 2016. He knew that Filipkowska had decided to retain AW permanently in the United States, in violation of his parental rights, no later than May 2014 when Filipkowska sent him an email announcing her decision. Therefore, the court had to consider whether AW had become settled in her new environment.  Neither the Convention nor ICARA defines what it means for a child to be “settled” or prescribes a method for establishing it, but courts in this circuit understand that a child is settled if she “has significant emotional and physical connections demonstrating security, stability, and permanence in [her] new environment.” Lozano, 697 F.3d at 56. Relevant factors include the following: (1) the age of the child; (2) the stability of the child’s residence in the new environment; (3) whether the child attends school or day care consistently; (4) whether the child attends church [or participates in other community or extracurricular school activities] regularly; (5) the respondent’s employment and financial stability; (6) whether the child has friends and relatives in the new area; and (7) the immigration status of the child and the respondent. The court noted that the weight afforded a child’s immigration status “will inevitably vary for innumerable reasons, including: the likelihood that the child will be able to acquire legal status or otherwise remain in the United States, the child’s age, and the extent to which the child will be harmed by her inability to receive certain government benefits.” Weighing all of the circumstances, the court found that Filipkowska had not established that AW was settled in this country.

Filipkowska next asserted that Wtulich consented to AW’s retention in the United States. She also contended that Wtulich’s application for access to AW demonstrated further evidence of his acquiescence. The court did not infer from the emails Filipkowska cited that Wtulich was willing to allow AW to remain in the United States. It credited his testimony that be wrote those emails to placate Filipkowska rather than risk having her hide AW from him. Similarly, Wtulich’s initial attempt, in filing the ICARA Application, to secure access to AW rather than her repatriation did not establish his acquiescence within the Convention’s meaning. See Friedrich, 78 F.3d at 1070 (“Each of the words and actions of a parent during the separation are not to be scrutinized for a possible waiver of custody rights.”).  To establish her acquiescence defense, Filipkowska had to show “either: an act or statement with the requisite formality, such as testimony in a judicial proceeding; a convincing written renunciation of rights; or a consistent attitude of acquiescence over a significant period of time.” In re Koc, 181 F. Supp. at 151 (quoting Friedrich, 78 F.3d at 1070). Although Wtulich wrote in his Application that he would “respect [Filipkowska’s] decision to stay in the [United States], subject ... to [his] rights ... to maintain meaningful contacts with [his] daughter,” he started by noting his desire for AW “to continue to live in Poland.” Wtulich also testified that he did not draft the Application’s text himself or check the box on the form’s front page selecting a remedy, but that his counsel did so. After counsel filed the Application, Wtulich asked him to file a petition for return instead, to no avail. The court found Wtulich’s testimony credible and concluded that the record does not establish that he ever intended to allow Filipkowska to retain AW in this country permanently. The Application was not “a convincing written renunciation of rights” and the record did not otherwise reveal that Wtulich demonstrated “a consistent attitude of acquiescence over a significant period of time.” In re Koc, 181 F. Supp. 2d at 151 (quoting Friedrich, 78 F.3d at 1070). The court found that Filipkowska failed to establish the defense of acquiescence.

Filipkowska raised a third defense that AW preferred to remain in the United States. The Convention “permits a court to ‘refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of [her] views.’ ” Blondin IV, 238 F.3d at 166 (quoting Convention art. 13). The Court interviewed AW at the end of the trial, at which time she was nine years old. Her English was excellent. When I asked if she understood the nature of what was going on, she responded, “[Wtulich] wants to take me to Poland and I don’t want to go there. And my Mom doesn’t want me to go there either.”. She further indicated that she did not remember much about her life in Poland. She also stated that the she would rather the visits be in the United States, because “it’s more fun here. I like it better here than Poland.”  The court found
 that while AW was articulate, she was not sufficiently mature to give thoughtful consideration to its questions. It found that AW has not yet attained an age and a degree of maturity that requires the court to accede to her objection. It also found that while her view can and does weigh in the balance, it did not outweigh Wtulich’s right to her return. See Poliero v. Centenaro, 2009 WL 2947193, at *21 (E.D.N.Y. Sept. 11, 2009) (declining to give weight to the considered objections of thirteen- and nine-year-old children). 

Asumadu v Baffoe, --- Fed.Appx. ----, 2019 WL 1373306 (Mem) (9th Cir., 2019) [Canada] [Article 18] [petition granted]

In Asumadu v Baffoe, --- Fed.Appx. ----, 2019 WL 1373306 (Mem) (9th Cir., 2019) the district court ordered that the parties’ son, K.A.A., be returned to Mr. Asumadu in Canada, while allowing their daughter, A.K.A., to remain in the United States with Ms. Baffoe. Reviewing the district court’s factual findings for clear error, the Ninth Circuit affirmed. It found that the district court did not clearly err in finding that the parties had no “shared, settled intent” for Canada to become A.K.A.’s habitual residence. The district court, crediting Ms. Baffoe’s testimony that her move to Canada with A.K.A. was intended as a trial period to determine whether Mr. Asumadu would continue to abuse her, found that “there was never a shared intent for A.K.A. to live anywhere other than with [Ms.] Baffoe.” It also found that the district court did not clearly err in finding that the parties did have a “shared, settled intent” for Canada to become K.A.A.’s habitual residence. Murphy, 764 F.3d at 1150. It did not decide whether the district court erred in not excusing—due to Ghanaian cultural norms—Ms. Baffoe’s failure to use legal processes to ensure K.A.A.’s return to the United States, because it relied on other evidence too in reaching its determination about the parties’ intent.  The Court declined to decide whether or under what circumstances abuse of a spouse may create a grave risk of harm to the spouse’s child because A.K.A. was to remain in the United States with Ms. Baffoe while K.A.A. would return to Canada with Mr. Asumadu. Ms. Baffoe indicated that she did not otherwise plan to return to Canada—given the parties will not be living together, there was no risk of spousal abuse or resulting harm to the children. Lastly, it held that the district court did not abuse its discretion by not implementing Article 18 of the Hague Convention to order A.K.A.’s return to Canada. Such a decision is discretionary, and the record did not show that equitable considerations required such a return. See In re B. Del C.S.B., 559 F.3d 999, 1015 (9th Cir. 2009) (“We decline to remand the case to the District Court for a discretionary determination under Article 18 as to whether Brianna should be returned to Mexico.”).

Asumadu v. Baffoe, 2019 WL 1531793 (D. Arizona, 2019) [Canada] [necessary expenses] [clearly inappropriate]

         In Asumadu v. Baffoe, 2019 WL 1531793 (D. Arizona, 2019) the district court denied Petitioner Akwasi Damoah Asumadu’s motion for necessary expenses and granted Respondent Hannah Boahemaa Baffoe’s motion for review of the Clerk of Court’s judgment on taxation of costs as modified. Asumadu sought recovery of “necessary transportation expenses” pursuant to 22 U.S.C. § 9007(b)(3):  (1) $1,201.73 for transportation and lodging related to the July 31, 2018 bench trial, and (2) $674.31 for transportation and lodging related to K.A.A.’s return to Canada. The Court noted that in relevant part, ICARA provides that: Any court ordering the return of a child...shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner, including...transportation costs related to the return of the child, unless the respondent establishes that such order would be clearly inappropriate. 22 U.S.C. 9007(b)(3). ICARA “contemplates the use of such awards to restore a petitioner to the financial position he or she would have been in had there been no removal or retention, as well as to deter violations of the Hague Convention.” Aguilera v. DeLara, No. 14-01209-PHX-DGC, 2014 WL 4204947, *1 (D. Ariz. Aug. 25, 2014). As the respondent, Baffoe had the burden of establishing that an award of fees and costs would be clearly inappropriate under the circumstances. Baffoe asserted that an assessment of the sought-after expenses against her was clearly inappropriate because her actions were a result of Asumadu’s physical abuse, and that any assessment of expenses would cause her financial hardship. Baffoe also argued that some of the sought-after expenses were unnecessary or excessive.  The Court pointed out that generally, in determining whether expenses are ‘clearly inappropriate,’ courts have considered the degree to which the petitioner bears responsibility for the circumstances giving rise to the fees and costs associated with a petition. Souratgar (citing cases). For example, awarding expenses is clearly inappropriate where the prevailing petitioner physically abused the respondent, see, e.g., Aguilera, 2014 WL 4204947, at *1-2, because “a [parent] should not be required under the threat of monetary sanctions to choose between continued abuse (mental as well as physical) and separation from a young child[.]” Guaragno v. Guaragno, No. 09-CV-187, 2010 WL 5564628, at *3 (N.D. Tex. Oct. 19, 2010), adopted by 2011 WL 108946 (N.D. Tex. Jan. 11, 2011). The Court previously found that “the description of events provided by Baffoe is consistent with her having been the victim of some form of domestic violence,” and that “Asumadu likely struck Baffoe on more than one occasion.” Under the circumstances, the Court found that Baffoe “was faced with a cruel dilemma, whether to continue to receive the physical abuse...from [Asumadu], or retreat and suffer from the separation of the child.” Guaragno, 2010 WL 5564628, at *3. Accordingly, it held that an award of expenses would be clearly inappropriate in this case.

Calixto v Lesmes, 2019 WL 501068 (M.D. Florida, 2019)[Colombia] [Report and Recommendation on Remand] [Habitual Residence]

          In Calixto v Lesmes, 2019 WL 501068 (M.D. Florida, 2019) after an evidentiary hearing, the Magistrate Judge issued a Report and Recommendation (R&R) recommending that Mr. Calixto’s petition be denied because both parties shared the intent for the United States to be M.A.Y.’s habitual residence. Subsequently, the Court adopted the R&R and denied Mr. Calixto’s petition. On appeal, the Eleventh Circuit found unresolved factual issues, which prevented proper determination of M.A.Y.’s habitual residence. The Eleventh Circuit retained jurisdiction but remanded the case for further factual findings. On remand, the Court referred the case for a supplemental R&R. In remanding the case, the Eleventh Circuit identified specific factual issues for this Court to resolve: (1) the status of the relationship between Mr. Calixto and Ms. Lesmes in 2015; (2) the circumstances surrounding the travel consent form executed by Mr. Calixto and M.A.Y.’s departure from Colombia; and (3) ultimately “whether Mr. Calixto’s intent to change M.A.Y.’s habitual residence was conditioned upon his joining Ms. Lesmes and M.A.Y. in the United States or whether that intent was vitiated once Mr. Calixto was unable to come to the United States.” Additionally, the Eleventh Circuit stated that the Court should address “whether the evidence presented at the hearing provides either of the alternative means of establishing habitual residence,” which are set forth in Ruiz v. Tenorio, 392 F.3d 1247, 1254 (11th Cir. 2004). The Magistrate Judge noted that under the Hague Convention, Mr. Calixto must establish the facts in support of his petition by a preponderance of the evidence. 22 U.S.C. § 9003(e)(1). He found that Mr. Calixto had not established the facts supporting his petition by the preponderance of the evidence.

The first question the Court had to resolve is the status of the relationship between Mr. Calixto and Ms. Lesmes in 2015. The Court, finding the testimony of Ms. Lesmes to be honest and credible, found that the relationship ended in August 2015 and did not resume. The next factual issue for consideration concerned the circumstances surrounding the travel consent form executed by Mr. Calixto in November 2015 and M.A.Y.’s departure from Colombia. The court found that the travel consent form indicated Mr. Calixto’s agreement that M.A.Y. would move to the United States, and the return date was indication that Mr. Calixto wanted M.A.Y. to visit him if he could not gain entry into the United States. The above findings laid the foundation for the ultimate question on remand: whether Mr. Calixto’s intent to change M.A.Y.’s habitual residence was conditioned upon his joining Ms. Lesmes and M.A.Y. in the United States. In accordance with the above findings, the court found that Mr. Calixto shared an unconditional intent to change M.A.Y.’s habitual residence to the United States, regardless of his ability to enter the United States. Because the Court found that Mr. Calixto expressed an unconditional consent for M.A.Y. to move to the United States, and because the Eleventh Circuit did not disturb this Court’s previous findings regarding acclimatization, M.A.Y.’s habitual residence changed to the United States.

          The Eleventh Circuit also asked the Court to consider “whether the evidence presented at the hearing provides either of the alternative means of establishing habitual residence.” In Mozes v. Mozes, the Ninth Circuit addressed the difficult question of “when evidence of acclimatization should suffice to establish a child’s habitual residence, despite uncertain or contrary parental intent.” 239 F.3d at 1078. After thorough discussion of the goals of the Hague Convention and the flexibility of children, the court acknowledged that “a child can lose its habitual attachment to a place even without a parent’s consent.” Adopting the reasoning of the Ninth Circuit, the Eleventh Circuit noted in Ruiz v. Tenorio that when there is no shared settled intent on the part of the parents to abandon the child’s prior habitual residence, a court should find a change in habitual residence if the objective facts point unequivocally to a new habitual residence, or if the court could “say with confidence that the child’s relative attachments to the two countries have changed to the point where requiring a return to the original forum would now be tantamount to taking the child out of the family and social environment in which its life has developed. “Ruiz (quoting Mozes, 239 F.3d at 1081). Thus, to answer the final question on remand, the Court had to consider—if Ms. Lesmes and Mr. Calixto did not share intent to change M.A.Y.’s habitual residence—whether the facts unequivocally pointed to a new habitual residence, or if the Court could say with confidence that sending M.A.Y. back to Colombia would be tantamount to taking her out of the family and social environment in which her life had developed. The parties agreed that the relevant time period to assess the M.A.Y.’s habitual residence wass “‘immediately before the removal or retention.’” See Fuentes-Rangel v. Woodman, 617 F. App’x 920, 921 (11th Cir. 2015).

          The critical question was whether M.A.Y.’s habitual residence had changed to the United States by November 2016. To answer that question, the Court, as instructed by the Eleventh Circuit, considered “whether the evidence presented at the hearing” established a change in habitual residence. As discussed in the prior R&R, a change in habitual residence, even with the shared intent of the parents, requires some acclimatization to the new residence. Ruiz, 392 F.3d at 1253 (citing Mozes, 239 F.3d at 1078). To that end, the Court found sufficient evidence of acclimatization to effect a change in habitual residence with the shared intent of M.A.Y.’s parents. But without shared intent of the parents, the Court must be confident in a high level of acclimatization. “Despite the superficial appeal of focusing primarily on the child’s contacts in the new country ... courts should be slow to infer from such contacts that an earlier habitual residence has been abandoned.” Mozes, 239 F.3d at 1079. “The Convention is designed to prevent child abduction by reducing the incentive of the would-be abductor to seek unilateral custody over a child in another country. The greater the ease with which habitual residence may be shifted without the consent of both parents, the greater the incentive to try.” Additionally, “[c]hildren can be remarkably adaptable and form intense attachments even in short periods of time.”  In considering the evidence presented at the evidentiary hearing, the Court could not say that the facts unequivocally pointed to a new habitual residence. The Court previously identified numerous factors showing M.A.Y.’s acclimatization in the United States, including religious services, friends and family, and the beginning of M.A.Y.’s formal education.  However, M.A.Y. also participated in many similar activities in Colombia, the country where she was born and spent the early years of her life, including family functions, religious events, and early schooling. M.A.Y. also had numerous family members in Colombia.  M.A.Y.’s contacts in the United States were the type of routine contacts from which a court should be “slow to infer” a change in habitual residence. See Mozes, 239 F.3d at 1067. Mozes made clear that a great weight should be attributed to the intent of the parents over evidence of acclimatization. Although M.A.Y. developed strong ties to the United States, the evidence showed ties to Colombia as well. The evidence did not establish that M.A.Y.’s acclimatization to the United States was so complete that serious harm could be contemplated by a return to Colombia. Thus, although M.A.Y. had acclimatized to the United States sufficient to change her habitual residence with her parents’ intent, the record did establish the high level of acclimatization necessary to overcome a lack of shared intent. Therefore, it was recommended that the Court find that M.A.Y.’s habitual residence changed to the United States based on her parents shared, unconditional intent. If the Court finds that M.A.Y.’s parents did not share an unconditional intent, it was recommended that the Court not find a change in M.A.Y.’s habitual residence.