Monday, April 15, 2019
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.