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 fiancé 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.
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