Capalungan v Lee, 2019 WL 1330711(S.D. Ohio, 2019)[Australia] [Federal & State Judicial Remedies] [Summary Judgment] [Motion denied]

          In Capalungan v Lee, 2019 WL 1330711(S.D. Ohio, 2019) Petitioner and Respondent were the biological parents of EZL who was born on August 31, 2012 in the Philippines where he resided with Petitioner until January 22, 2016, when they moved to Australia. From January 22, 2016 to February 22, 2017, EZL lived with Petitioner in Australia. Since prior to EZL’s birth, Respondent has resided in the United States. During his time in Australia, EZL attended 3 Apple’s Childcare and Kindergarten five days per week from 7:30 a.m. until 5:00 p.m. EZL also attended church and Sunday school, visited museums and amusements parks, went to the movies, and enrolled in swimming classes. Petitioner and EZL lived with Petitioner’s younger sister and niece in Melbourne, Australia. In early 2017, the parties began discussing Petitioner’s career plans. Petitioner was working to complete her training for a job as a nurse care manager.). The parties discussed Petitioner and EZL traveling to the United States so that Respondent could care for EZL and apply for his permanent residency while Petitioner returned to Australia to complete her training. Petitioner and EZL traveled to the United States on or around February 22, 2017. Shortly thereafter, the Petitioner returned to Australia to complete her training program. The parties’ relationship then deteriorated. In December 2017, Petitioner traveled to the United States to take custody of EZL and return to Australia. She requested that Respondent provide her with EZL’s passport so that she could return to Australia with him. Respondent refused, and Petitioner returned to Australia without EZL. (Id.). The parties’ relationship deteriorated even further leading to the filing of this action.

          Respondent moved for summary judgment on three different grounds: (1) there was no wrongful retention because the minor child’s habitual residence was and is the United States; (2) the Petition was filed more than one year after the alleged wrongful retention, and EZL was now settled in his new environment; and (3) Petitioner consented to EZL living in the United States with Respondent.

          The Court observed that habitual residence marks the place where a person customarily lives.” Taglieri, 907 F.3d at 407. This is a question of fact. Id. at 408 (collecting cases). When determining a child’s habitual residence, the Sixth Circuit applies one of two standards depending on the facts of the case. “The primary approach looks to the place in which the child has become ‘acclimatized.’ (quoting Ahmed v. Ahmed, 867 F.3d 682, 687 (6th Cir. 2017)). “The second approach, a back-up inquiry for children too young or too disabled to become acclimatized, looks to ‘shared parental intent.’” Taglieri, 907 F.3d at 407. *3 When applying the acclimatization standard: the question is whether the child has been physically present in the country for an amount of time sufficient for acclimatization and whether the place has a degree of settled purpose from the child’s perspective. District courts ask these sorts of questions in determining a child’s acclimatization: whether the child participated in academic activities, social engagements, sports programs and excursions, and whether the child formed meaningful connections with the country’s people and places. Taglieri, 907 F.3d at 408 (internal citations, alterations, and quotation marks omitted). This analysis is guided by five principles: First, habitual residence should not be determined through the technical rules governing legal residence or common law domicile. Instead, courts should look closely at the facts and circumstances of each case. Second, because the Hague Convention is concerned with the habitual residence of the child, the court should consider only the child’s experience in determining habitual residence. Third, this inquiry should focus exclusively on the child’s past experience. Any future plans that the parents may have are irrelevant to our inquiry. Fourth, a person can have only one habitual residence. Finally, a child’s habitual residence is not determined by the nationality of the child’s primary care-giver. Only a change in geography and the passage of time may combine to establish a new habitual residence. Robert v. Tesson, 507 F.3d 981, 989 (6th Cir. 2007).

          To determine EZL’s habitual residence, the Court must first determine when the alleged wrongful retention began. See McKie v. Jude, No. CIV.A. 10-103-DLB, 2011 WL 53058, at *6 (E.D. Ky. Jan. 7, 2011) When determining the date the alleged wrongful retention began, “courts look to the last date upon which it is undisputed that the child was in the new country with both parents’ consent.” Djeric v. Djeric, No. 2:18-CV-1780, 2019 WL 1046893, at *3 (S.D. Ohio Mar. 5, 2019). “Specifically, courts look to the date when the non-abducting parent was truly on notice that the abducting parent was not going to return the child.” The parties disputed when the alleged wrongful retention occurred. There was a genuine issue of material fact as to when the wrongful retention began. The Court therefore had to determine EZL’s habitual residence in the time period prior to the alleged wrongful retention. Petitioner has presented evidence that EZL resided in Australia for more than a year prior to arriving in the United States, from January 2016 to February 2017. During that time, EZL attended daycare and kindergarten five days per week, attended church, visited museums and amusements parks, went to the movies, enrolled in swimming classes, and visited extended family. Further, Petitioner and EZL lived with Petitioner’s younger sister and niece in Melbourne, Australia, and EZL developed a close relationship with his aunt and cousin with whom he participated in a variety of extracurricular activities. From a child’s perspective, these are hallmarks of a habitual residence. See Taglieri, 907 F.3d at 408. The question was whether EZL’s habitual residence changed when he resided in the United States from February 2017 to the date of the alleged wrongful retention in January 2018.² See Robert, 507 F.3d at 989 (“Only a change in geography and the passage of time may combine to establish a new habitual residence.” Petitioner offered evidence that EZL developed strong ties to Australia in 2016 and 2017 prior to his arrival in the United States. In Petitioner’s view, Australia was EZL’s habitual residence, and his temporary visit to the United States did nothing to alter this fact. In response, Respondent offered evidence that, after EZL arrived in the United States in February 2017, he attended school and participated in extracurricular activities prior to the alleged wrongful retention. According to Respondent this demonstrated that EZL was acclimatized to the United States at the time of the alleged wrongful retention, and the United States was, therefore, EZL’s habitual residence. Based on the available evidence, there was a genuine issue of material fact as to whether EZL’s habitual residence was Australia or the United States prior to the alleged wrongful retention in January 2018. The Court, therefore, denied summary judgment as to this issue.

          Respondent argued that Petitioner did not commence these proceedings until more than a year after the alleged wrongful retention and that EZL is now well-settled in the United States.

“Article 12 establishes a one-year limitations period circumscribing the power of a petitioned court. If the petitioner initiated proceedings within a year of the child being wrongfully removed or retained, the court must order the child’s return in the absence of some other exception or defense.” Blanc v. Morgan, 721 F. Supp. 2d 749, 762 (W.D. Tenn. 2010). “If a year or more elapsed between the wrongful removal or retention and petitioner’s initiation of proceedings, the court need not order the child’s return if the respondent establishes by a preponderance of the evidence that the child is ‘now settled in its new environment.’” Id. (quoting Hague Convention, art. 12). Because there was a genuine issue of material fact as to the date of the alleged wrongful retention, there was a genuine issue of material fact as to whether the well-settled defense was potentially applicable. Petitioner commenced these proceedings on October 23, 2018. If, as Petitioner argued, the wrongful retention occurred on January 5, 2018, the Petition was filed well within Article 12’s one-year time frame, and the well-settled defense would not apply. See Hague Convention, art. 12. If, as Respondent argued, the wrongful retention occurred in July 2017, the Petition was not filed within Article 12’s one-year time frame, and the well-settled defense could potentially apply. The Court therefore denied summary judgment as to this issue.

          Respondent also contended that Petitioner consented or acquiesced to EZL remaining in the United States. He emphasized that Petitioner voluntarily brought EZL to the United States and executed legal documents allowing the child to stay in the United States.  “Article 13(a) of the Hague Convention provides a statutory defense against the child being returned to the country of habitual residence if defendant proves by a preponderance of the evidence that plaintiff consented to or subsequently acquiesced in the child’s removal or retention.” Guevara v. Soto, 180 F. Supp. 3d 517, 528 (E.D. Tenn. 2016). “‘Consent’ and ‘acquiescence’ are not defined in the Hague Convention,” id. (citing Friedrich, 78 F.3d at 1069 n.11), and courts treat them as distinct concepts,. “The consent defense involves the petitioner’s conduct prior to the contested removal or retention, while acquiescence addresses whether the petitioner subsequently agreed to or accepted the removal or retention.” Baxter v. Baxter, 423 F.3d 363, 371 (3d Cir. 2005) (citing Gonzalez-Caballero v. Mena, 251 F.3d 789, 794 (9th Cir. 2001)). “[A]acquiescence under the Convention requires 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.” Friedrich, 78 F.3d at 1070. “Unlike acquiescence, a petitioner’s informal statements or conduct can manifest consent.” Diagne v. Demartino, No. 2:18-CV-11793, 2018 WL 4385659, at *8 (E.D. Mich. Sept. 14, 2018) (citing Baxter, 423 F.3d at 371).

          Respondent was not entitled to summary judgment on either defense. As an initial matter, the Court noted that consent and acquiescence are affirmative defenses on which Respondent bears the burden of proof. Respondent cited no authority or evidence in support of his consent or acquiescence defenses. The Court reviewed the record and concluded that there is a genuine issue of material fact as to Respondent’s consent and acquiescence defenses. Similarly, there was a genuine issue of material fact as to whether Petitioner acquiesced to Respondent’s alleged wrongful retention of EZL. The Court denied summary judgment as to this issue accordingly.