In Eidem v Eidem, 2019 WL 1894376 (S.D.N.Y., 2019) the district court granted the petition of Per Magne Eidem (“Petitioner”) for an order directing the return of his two sons to Norway. Petitioner was a Norwegian citizen who was born and raised in Norway. Respondent, a dual citizen of the United States and Norway, was born in Brooklyn, New York, but moved to Norway with her mother in 1993 at the age of eight. The parties married on June 9, 2008.and lived together in Norway from 2005 until 2013.The parties had their first child, T.E., on August 25, 2008. Shortly after his birth, T.E. was diagnosed with Hirschsprung’s disease, a condition wherein nerves are missing from parts of the intestine, and he underwent a “pull-through” surgery at a hospital in Trondheim to remove part of his colon. The Trondheim hospital, located four hours by car from Elnesvågen, was one of two hospitals in Norway capable of performing a pull-through surgery. The parties had their second child, N.E., on December 8, 2010. From a young age, N.E. had difficulties with verbal skills. On June 24, 2013, Respondent filed for separation, and the parties were legally divorced in 2014. Following their divorce, the parties entered into a visitation agreement providing for joint custody over the children. The agreement explained that the children’s “permanent place of abode” would be with Respondent, but that Petitioner would have custody over the children every other Wednesday and Thursday, every other weekend from Friday to Monday, and every other year for several holidays.
During the summer of 2016, Petitioner signed a letter of parental consent allowing Respondent to travel to the United States with the children for a one-year period. The parties agreed that Respondent would return the children to Norway before the beginning of the Norwegian school term in August of 2017. As of January of 2017, Petitioner began coordinating the children’s return to Norway with Respondent. By April of 2017 Respondent had decided that she was going to stay in New York with the children. Nevertheless, she lied to Petitioner and told him that she had purchased airline tickets for the children to return to Norway on August 8, 2017. As a result, on August 8, 2017, Petitioner went with his father to the Molde Airport to meet the children. After the flight landed and Petitioner realized that the children were not actually on board, he reached out to Respondent, who admitted that she had lied about purchasing airline tickets and explained that she was going to keep the children in the United States. Respondent then cut off all contact between Petitioner and the children. Although Petitioner tried calling at least a dozen times, Respondent never answered. Petitioner initiated this action on July 6, 2018. At a pre-trial conference Respondent explained that she currently did not intend to return to Norway with the children if the Court ordered their return to Norway.
The district court noted that in Gitter, the Second Circuit set forth a two-part test for ascertaining a child’s habitual residence pursuant to the Hague Convention: 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.
The court found that the last shared intent of the parties was clearly for the children to be habitual residents of Norway. Respondent admitted that, when the parties agreed that Respondent would take the children to the United States in August of 2016, their shared intent was for the children to live in the United States for one year only, and to return to Norway – where they had lived the entirety of their lives to that point – before the beginning of the Norwegian school year in August 2017. The court found that the children had not so acclimatized to the United States that they had acquired a new habitual residence. A court can conclude that a “child’s habitual residence has shifted to his or her new location” only under the “relatively rare circumstances in which a child’s degree of acclimatization is so complete that serious harm can be expected to result from compelling his or her return to the family’s intended residence.” Mota v. Castillo, 692 F.3d 108, 116 (2d Cir. 2012) The Court concluded that Petitioner made out a prima facie case of wrongful removal and retention of the children under ICARA.
Respondent argued that the children would be exposed to grave risk of harm if they were returned to Norway because Petitioner allegedly abused her in front of the children throughout their marriage. Respondent detailed one incident in which, after Petitioner “refused to help” with the children, Respondent threatened to throw Petitioner’s computer out the window and Petitioner “struck [her] across the face with his hand, knocking [her] to the ground” in front of the children, who were four and two years old at the time. Petitioner denied abusing Respondent. Regardless of whose version of the altercation was closer to the truth, the parties were now divorced and would not be residing together under any circumstances. Thus, the likelihood of future physical alterations between them was remote. Furthermore, there was simply no evidence to suggest that Petitioner had ever abused the children, or that he would ever do so. The Court found no basis to conclude that the children would be placed in grave danger if they were returned to Petitioner’s custody.
Finally, Respondent argued that the children will be exposed to grave risk if they were taken away from the network of doctors overseeing their care in the United States. Although the Court acknowledged that an abrupt termination of the children’s current mental health treatment could pose some danger to their well-being, the Court concluded that such danger would be sufficiently mitigated if the children were moved after the conclusion of the school year.
In Palencia v Perez, 2019 WL 1907867 (11th Cir., 2019) the district court concluded that Marilys Velasquez Perez had wrongfully retained her son, H.J.D.V., in the United States and away from Guatemala, his place of habitual residence. It granted the petition filed by H.J.D.V.’s father, Jose Diaz Palencia, and ordered that the child be returned to Guatemala. The Eleventh Circuit affirmed.
Ms. Perez and Mr. Palencia had never been married, but they had a child, H.J.D.V., who was born in Guatemala in 2013. They lived there together until Ms. Perez left with H.J.D.V. in October of 2016. In October of 2016, Ms. Perez told Mr. Palencia that she wanted to take H.J.D.V. to Chiapas, Mexico, to visit relatives for a week. Mr. Palencia did not object. Ms. Perez never indicated that she intended to take H.J.D.V. to the United States, and Mr. Palencia never agreed to her doing so. Nor did he agree to Ms. Perez taking H.J.D.V. away for longer than a week. Rather than visiting Mexico, Ms. Perez took H.J.D.V. to the United States, where they were detained at the border. 12 days later, Ms. Perez called him from a detention facility in the United States. She told him that she had made a mistake, asked for forgiveness, and said that she would return to Guatemala with H.J.D.V. She explained that, to be able to return, she needed Mr. Palencia’s assistance in obtaining passports for herself and H.J.D.V. Mr. Palencia cooperated. It took months for the passports to be issued, during which time Ms. Perez repeatedly told Mr. Palencia she would return as soon as she had them. In July of 2017, after she had received the passports, Ms. Perez told Mr. Palencia she would not be returning to Guatemala with H.J.D.V. Unbeknownst to Mr. Palencia, Ms. Perez had filed an asylum application for herself and H.J.D.V. upon arriving in the United States. Mr. Palencia did not learn of the application until after he filed his Hague Convention petition in the district court. In connection with her asylum application, Ms. Perez completed a credible fear interview, in which she stated that she had never suffered violence at a romantic partner’s hands.
On February 25, 2018, Mr. Palencia filed a verified Hague Convention petition seeking H.J.D.V.’s return. On April 30, 2018, the district court commenced an evidentiary hearing and ultimately granted the petition.
Ms. Perez asserted that the district court committed several errors. The first was that the district court erred in its determination of Guatemalan law with respect to Mr. Palencia’s rights. The second was that the district court wrongfully concluded that July of 2017—when Ms. Perez informed Mr. Palencia that she would not return to Guatemala—constituted the date of H.J.D.V.’s wrongful retention.
The Eleventh Circuit looked to the law of Guatemala, the country of H.J.D.V.’s habitual residence, to “determine the content of [Mr. Palencia’s] right[s], while following the Convention’s text and structure to decide whether the right at issue is a ‘right of custody.’ ” Abbott v. Abbott, 560 U.S. 1, 10, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010). The district court’s determination of Guatemalan law was subject to plenary review, and in performing that review the court could conduct its own research of relevant sources. See Fed. R. Civ. P. 44.1; Animal Science Prods., Inc. v. Hebei Welcome Pharm. Co. Ltd., ––– U.S. ––––, 138 S.Ct. 1865, 1869–70, 201 L.Ed.2d 225 (2018). It observed that Guatemala is a civil law jurisdiction. The generally recognized sources of law in such a jurisdiction are constitutional provisions, statutes, administrative regulations, and customs. See generally John Henry Merryman & Rogelio Perez-Perdomo, The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America (4th ed. 2019). Guatemalan caselaw did not provide any authoritative guidance.
Ms. Perez argued that Mr. Palencia, whom she never married, lacked “rights of custody” under Article 261 of the Guatemalan Civil Code. Article 261 provides in relevant part as follows: “Single or separated mother. When the father and the mother are neither married nor in a common-law marriage, the children shall be in the mother’s custody unless she agrees to transfer them to the father’s custody, or unless they are enrolled in a boarding school.” Guatemalan Civil Code, Chapter VII, Art. 261. According to Ms. Perez, Article 261 granted her exclusive patria potestad powers and, therefore, complete custodial authority as to H.J.D.V. Patria potestad is a Roman legal concept which, in its original form, gave a family patriarch absolute power over his child, but is now generally understood to be the rights any biological parent may exercise over a child. See Luis Ischiu v. Gomez Garcia, 274 F.Supp.3d 339, 346 (D. Md. 2017). The Court pointed out that Articles 252 and 254 of the Code discuss the concept of patria potestad. Under Article 252, “within a marriage or common-law marriage” patria potestad “is exercised jointly by the father and the mother over minor children,” and “in any other case, it is exercised by the father or the mother, depending on who has custody of the child.” And under Article 254, patria potestad encompasses “the right to legally represent a minor or disabled person in any civil procedure; to manage his or her assets; and to make good use of his or her services according to his or her age and condition.” Guatemalan Civil Code, Chapter VII, Art. 254. As summarized by one district court, although the concept of patria potestad is not explicitly defined in the Code, it “covers [among other things] ‘the right to legally represent a minor ... in all civil acts ... to administer his or her assets and to take advantage of available services in view of his or her age and condition.’ ” Luis Ischiu, 274 F.Supp.3d at 346 (quoting translation of Article 254). Even assuming that Articles 261 and 254 granted Ms. Perez comprehensive patria potestad powers and primary custody over H.J.D.V., the Court concluded that a father in Mr. Palencia’s situation nevertheless retained certain rights and responsibilities under Guatemalan law. In its view, Article 253 established certain inalienable responsibilities for both parents of a child, even when the two are neither married nor in a formal union-in-fact. It provides as follows: “Duties of both parents. The father and the mother have a duty to care and provide for their children, whether born in or out of wedlock, and to raise and correct them using measured discipline. In accordance with criminal law, both shall be responsible should they leave them in a state of moral and/or material abandonment and fail to fulfill the duties inherent to parental authority.”
The Court noted that its task wass to decide this case “in accordance with the Convention.” 22 U.S.C. § 9003(d). As it read and understood the two provisions, Article 253 provides an unmarried father with certain obligations (and therefore certain rights) with respect to his child, with the caveat that Article 261 gives the mother the final say when the parents disagree on a given issue. Ms. Perez also relied on its unpublished decision in Ovalle v. Perez, 681 F. App’x 777, 784–86 (11th Cir. 2017), which held that an unmarried mother had rights of custody within the meaning of the Hague Convention under Guatemalan law. But the decision in this case did not conflict with Ovalle. The panel in Ovalle addressed the rights of custody of an unmarried mother—not those of an unmarried father like Mr. Palencia—under Guatemalan law, and it naturally turned to Article 261 to answer that particular question. Because the panel in Ovalle addressed only whether the unmarried mother had rights of custody, it had no need to consider Article 253. This inquiry concerns the rights of the unmarried father, so Article 253 becomes relevant.
The Court turned next to Ms. Perez’s argument concerning the date of the wrongful retention. That date matters because, if a petition for return is filed more than one year after the wrongful retention (or removal), the Convention permits the parent who took the child to argue that return should not be ordered because the child is “now settled” in his or her new environment. See Convention, Art. 12; Lozano, 572 U.S. at 4–5, 134 S.Ct. 1224. Mr. Palencia filed his petition in February of 2018. The district court ruled that the wrongful retention took place in July of 2017 (when Ms. Perez told Mr. Palencia that she would not be returning to Guatemala with H.J.D.V.) and not in October of 2016 (when Ms. Perez left Guatemala with the child and told Mr. Palencia that she was going to Mexico for a week to visit family members). The district court reasoned that the wrongful retention could not have occurred in October of 2016 because at that time Mr. Palencia had consented to Ms. Perez and H.J.D.V. traveling to Mexico for a week, and he had no reason to demand the child’s return. The Eleventh Circuit agreed.
The Eleventh Circuit held that for the purpose of determining the date of wrongful retention, a court should look to the date the petitioning parent learned the true nature of the situation. In Marks on behalf of SM v. Hochhauser, 876 F.3d 416, 417, 420–23 (2d Cir. 2017), the Second Circuit held that the wrongful retention occurred when the custodial parent told the non-custodial parent that she would be staying in the United States with their children and would not be returning to the country of the child’s habitual residence. The First Circuit reached the same conclusion in Darin v. Olivero-Hoffman, 746 F.3d 1, 10–11 (1st Cir. 2014). And in Blackledge v. Blackledge, 866 F.3d 169 (3d Cir. 2017), the Third Circuit similarly looked to the date the non-custodial parent’s consent expired. In each of these cases, although the petitioning and non-custodial parent initially assented to the child’s removal from the country of habitual residence, the date consent was revoked constituted the date of wrongful retention. It agreed with its sister circuits and noted that the case for such a rule is even stronger where—as here—the custodial parent makes affirmative representations regarding the date of the child’s return and then fails to act in accordance with them. “Wrongful retentions typically occur when a parent takes a child abroad promising to return with the child and then reneges on that promise[.]” Redmond v. Redmond, 724 F.3d 729, 738 n.5 (7th Cir. 2013).
When Ms. Perez and H.J.D.V. traveled to the United States and were detained at the border, Ms. Perez told Mr. Palencia that she had made a mistake and would return to Guatemala when she obtained passports for herself and the child. Mr. Palencia cooperated with the effort to secure the passports, and for months afterwards Ms. Perez told him that she was merely waiting for the passports to be issued to return to Guatemala. It was not until July of 2017 that Ms. Perez advised Mr. Palencia that she would not be returning H.J.D.V. to Guatemala. Before July of 2017, then, Mr. Palencia did not assert his rights of custody or revoke his consent to H.J.D.V. staying in the United States because he understood that Ms. Perez and H.J.D.V. would be returning to Guatemala as soon as they received their passports. It held that the district court correctly ruled that the wrongful retention took place in July of 2017, when Mr. Palencia’s consent for H.J.D.V. to remain in the United States expired. See Hochhauser, 876 F.3d at 420–23; Blackledge, 866 F.3d at 179; Darin, 746 F.3d at 10–11.
In Capalungan v Lee, 2019 WL 1872978 (S.D. Ohio, 2019) the Magistrate judge recommended that the Petition for return be denied.
The parties were the biological parents of a six-year-old child, EZL. Petitioner was EZL’s mother and a resident of Australia. Respondent was EZL’s father and a resident of the United States. For the first four and a half years of EZL’s life, Petitioner was his primary caregiver. In February 2017, Petitioner brought EZL to the United States for a visit with Respondent. The parties agree EZL was to be returned to Australia to the custody of Petitioner. Respondent conceded that he violated the parties’ agreement that EZL be returned to Australia.
The court observed that in cases of wrongful retention, courts must determine the child’s habitual residence at the time the wrongful retention began. At the time of his alleged wrongful retention, EZL was five years old. For children this age, the Sixth Circuit generally applies an acclimatization standard to determine habitual residence, asking “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.” EZL had lived in the United States for approximately ten months before the alleged wrongful retention. During that time, he developed close relationships with family members here, attended school, made friends, and participated in a variety of extracurricular activities. At the time of the alleged wrongful retention, the United States was therefore EZL’s habitual residence. As a result, the Hague Convention cannot provide relief for Petitioner here.
Petitioner and Respondent were the biological parents of EZL. The parties began their relationship in the Philippines where Petitioner was a nurse and Respondent was a doctor. Respondent moved to the United States in April 2011. EZL was born on August 31, 2012 in the Philippines. At that time, Respondent was living in the United States. While Petitioner and EZL resided in the Philippines, the parties did not have any custody agreement or order. Although Respondent did not pay child support to Petitioner, Respondent’s father provided the parties with financial support when Respondent was in the Philippines. Additionally, the parties set up a joint bank account in which they save money given to them as gifts for EZL.
Petitioner traveled to the United States in December 2017 for the purpose of taking EZL back to Australia. Respondent refused to give her EZL’s passport, and she was unable to bring EZL home with her. Before Petitioner returned to Australia, Respondent agreed to return EZL when his U.S. passport was issued. On January 8, 2018, shortly after Petitioner returned to Australia, EZL received his permanent resident card. Towards the end of January, Respondent informed Petitioner that he would not return EZL to Australia when EZL’s passport was issued. Petitioner contacted the State Department’s Office of Children’s Issues to enroll in the Children’s Passport Issuance Alert Program (CPIAP) and put a hold on EZL’s United States passport. In response, Respondent burned EZL’s expired Filipino passport and sent Petitioner photos of the burnt passport. Petitioner subsequently withdrew EZL from CPIAP, which allowed his application for a passport to be processed. Throughout February and March 2018, the parties’ relationship continued to deteriorate. On February 16, 2018, the United States issued EZL’s passport. Respondent repeatedly refused to return EZL to Australia. Although Respondent had previously represented that the parties’ Shared Parenting Plan would only be used to enroll EZL in school, to justify his refusal to return EZL, he insisted that it gave him custody of EZL and therefore he was under no obligation to return EZL to Petitioner as the parties had agreed. On July 13, 2018, the United States government issued EZL’s certificate of citizenship, which indicated that EZL became a citizen of the United States on January 6, 2018. Respondent did not return EZL to Australia. Petitioner filed the Petition on October 23, 2018.
The ourt noted that when determining a child’s habitual residence, the Sixth Circuit applies one of two standards depending on the facts of the case. Id. at 407. “The primary approach looks to the place in which the child has become ‘acclimatized.’” Id. (quoting Ahmed v. Ahmed, 867 F.3d 682, 687 (6th Cir. 2017)). 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.” Taglieri, 907 F.3d at 408 (citation and internal quotations omitted). “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.” 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 the second approach, a back-up inquiry for children too young or too disabled to become acclimatized, looks to ‘shared parental intent. Taglieri (quoting Ahmed, 867 F.3d at 689). This standard requires courts “to identify the location where the parents intended the child to live.” Taglieri, 907 F.3d at 408.
To answer the question of which standard applied the court had to first determines when the alleged wrongful retention of EZL began. In the case of a wrongful retention, the time begins to run either (1) from the date the child remains with the abducting parent despite the clearly communicated desire of the left-behind parent to have the child returned, or (2) when the acts of the abducting parent are so unequivocal that the left-behind parent knows or should know, that the child will not be returned[.]Diagne v. Demartino, No. 2:18-CV-11793, 2018 WL 4385659, at *11 (E.D. Mich. Sept. 14, 2018) (internal citations omitted); see also Djeric v. Djeric, No. 2:18-CV-1780, 2019 WL 1046893, at *3 (S.D. Ohio Mar. 5, 2019)
The Court indicated that in late December 2017 and early January 2018, Petitioner traveled to the United States with the intention of returning EZL to Australia. During that time period, she demanded that Respondent provide her with EZL’s passport and communicated her intention to return to Australia with her son. Respondent, nonetheless, refused to give Petitioner EZL’s passport, and EZL remained with Respondent in the United States. The Court found that the alleged wrongful retention began in late December 2017.At that time, EZL was five years old. The Sixth Circuit applies the shared parental intent standard to “infants,” “especially young children,” and children “too disabled to become acclimatized.” Taglieri, 907 F.3d at 407–08; Ahmed, 867 F.3d at 690. Courts in the Sixth Circuit generally apply this standard to children who are two years old or younger at the time of the wrongful removal or retention. See, e.g., Taglieri, 907 F.3d at 408. For children who are older at the time of the alleged wrongful removal or retention, courts in the Sixth Circuit generally apply the acclimatization standard. See, e.g., Jenkins v. Jenkins, 569 F.3d 549, 556 (6th Cir. 2009) With these guideposts in mind, the Court concluded that the acclimatization standard governs the habitual residence analysis.
The central question in this case was whether in late December 2017, EZL had been physically present in the United States for an amount of time sufficient for acclimatization and whether the United States had a degree of settled purpose from his perspective. Unfortunately for Petitioner, the Undersigned is required to determine EZL’s habitual residence at the time of the wrongful retention. And Petitioner had not met her burden to demonstrate by a preponderance of the evidence that Australia was EZL’s habitual residence in late December 2017. As its analysis made clear, for every piece of evidence that suggested Australia was EZL’s habitual residence in February 2017, a similar, if not identical, piece of evidence supported the conclusion that the United States was EZL’s habitual residence in late December 2017. In both countries, EZL lived with extended family and developed a particularly close relationship with one of his cousins. In both countries, EZL actively explored the local community, attended church, and went on excursions to parks and museums. In both countries, EZL attended school for a portion of the relevant time period. In short, if Australia was EZL’s habitual residence in February 2017, the Court had difficulty seeing how the United States was not EZL’s habitual residence in late December 2017. Under Sixth Circuit precedent, EZL had acclimatized to the United States by the time of the alleged wrongful retention in late December 2017. Consequently, the Hague Convention could not afford Petitioner relief here.
The Court pointed out that in coming to its conclusion, this is a cautionary tale about the limits of the Sixth Circuit’s acclimatization standard. In February 2018, when Petitioner discussed returning EZL to Australia, Respondent refused, stating, “[y]ou should have realised [sic] [EZL] is here and I have the edge...”. That is ultimately what this case was about. By refusing to return EZL to Australia consistent with the parties’ agreement, Respondent has manufactured a favorable status quo that he would undoubtedly rely on in any future custody proceedings between the parties. But that status quo is contrary to the parties’ shared intent, which the acclimatization standard does not permit courts to consider in resolving the habitual residence question in cases like this one. Rather than incentivizing behavior consistent with the purposes of the Convention, the application of that standard here appeared to reward Respondent for conduct that undermines the Convention’s mission.
In De Lucia v. Castillo, 2019 WL 1905158 (M.D. Georgia, 2019) the district court granted the petition of Roberto De Lucia, an Italian citizen, for the return of his children, R.T.D.L. and N.A.D.L to Italy. The children’s mother, Respondent Rachel Marina Castillo, was a citizen of Italy and Peru who moved with the children from Italy to Georgia in March 2018. De Lucia and Castillo began a relationship in Italy in 2010, although they never married. They had two children: R.T.D.L., who was born in November 2012, and N.A.D.L., who was born in August 2014 (“Children”). Both Children were born in Monza, Italy, and their birth certificates list De Lucia as their father. Castillo’s parents were United States citizens, and De Lucia and Castillo agreed to obtain permanent resident status (“green cards”) for the Children so that they could visit their grandparents easily and ultimately pursue higher education in the United States. When De Lucia agreed to obtain the green cards for the Children, he knew they would have to be present in the United States for some part of each year to maintain the green cards, but he did not agree for them to move to the United States. He believed that the Children would continue to live in Italy until they were old enough to attend college. Each summer, Castillo, A.M.A., and the Children spent approximately two months with Castillo’s parents in Athens, Georgia, then returned to Italy for school.
De Lucia and Castillo separated in December 2016. After De Lucia and Castillo separated, De Lucia and Castillo shared unsupervised custody of the Children, and the Children lived with De Lucia at his parents’ house for part of each week. De Lucia and Castillo did not have a formal, court-ordered custody arrangement. In 2017, Castillo, A.M.A., and the Children visited Castillo’s parents for the summer. In September 2017, Castillo and the Children returned to Italy, but A.M.A. did not. De Lucia told Castillo that he did not want the Children to keep their green cards and that he would not permit the renewal of their passports. De Lucia wanted to require that the Children’s green cards be revoked, and Castillo would not agree to that condition. After De Lucia told Castillo in September 2017 that he did not want the Children to keep their green cards and that he would not permit the renewal of their passports, Castillo filed two police reports against De Lucia. Castillo reported that De Lucia had aggressive and violent attitudes. In November 2017, Castillo returned to the police. She reported that De Lucia raped her in January 2012; that he beat her and put his hands around her neck in May 2012 when she was pregnant with R.T.D.L.; that De Lucia sent her “an endless series” of threatening messages every day; and that when she was in a parking lot to make arrangements for the Children in October 2017, De Lucia pushed her and shut the car door on her finger.
At the hearing, Castillo testified that De Lucia lost control and became physically violent with her, grabbing her by the neck once while she was holding one of the Children and pushing or hitting her on several other occasions, sometimes in front of the Children. Castillo also testified that De Lucia told her several times that he would kill her. Castillo testified that after De Lucia moved out of her apartment in December 2016, De Lucia did not hit her or put his hands on her in an inappropriate way, although he did use threatening words often, at times in front of the Children. Castillo did not produce any of the threatening messages she reported to the police in November 2017.
On March 23, 2018, without notification to De Lucia, Castillo took R.T.D.L. and N.A.D.L. to the United States. Shortly after that, Castillo told De Lucia via WhatsApp that she could not return to Italy right away but planned to return in the summer, and she invited him to come see the Children. In response, De Lucia told Castillo to come back to Italy and that she did not have his consent to take the Children out of Italy. De Lucia later filed an accusation against Castillo for child abduction. At the hearing, De Lucia testified repeatedly that he did not give consent for the Children to travel to the United States.
On March 30, 2018, Castillo’s lawyers filed a custody and maintenance case against De Lucia in Italian civil court. Castillo’s lawyer confirmed that Castillo did not intend to return to Italy with the Children, and on October 23, 2018, the Italian Court granted De Lucia temporary sole custody of the Children until an additional hearing could be held.
The district court found that Italy was the children’s State of habitual residence on March 23, 2018, the day Castillo removed them from Italy. The Eleventh Circuit construe[s] the term’s ‘ordinary meaning as understood in the public law of nations. Citing the High Court of Justice in the United Kingdom, the Eleventh Circuit observed that “a habitual residence is established when ‘the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.’” (quoting In re Bates, No. CA 122.89 at 9-10, High Court of Justice, Fam. Div’n Ct. Royal Court of Justice, United Kingdom (1989)). Castillo contended that both Italy and the United States should be considered the Children’s places of habitual residence. The Court concluded that a child can have only one habitual residence at a time. Most (if not all) U.S. courts share the view that a person has only one habitual residence at a time. See, e.g., Didon v. Castillo, 838 F.3d 313, 316 (3d Cir. 2016) The Eleventh Circuit has offered “insight into the meaning of ‘habitual residency’ ” in “identifying when a child’s habitual residence has been changed.” Pfeiffer, 913 F.3d at 1024. The “two requirements to alter a child’s habitual residence” are “(1) the [people entitled to fix the child’s residence] must share a ‘settled intention’ to leave the old habitual residence behind; and (2) an ‘actual change in geography and the passage of a sufficient length of time for the child to have become acclimatized’ must occur.” Id. (quoting Ruiz v. Tenorio, 392 F.3d 1247, 1252-53 (11th Cir. 2004)) (per curiam). The Court could not find that the United States was the habitual residence of R.T.D.L. and N.A.D.L. on the date of removal, March 23, 2018. The evidence did not demonstrate a shared and settled intention of De Lucia and Castillo to abandon entirely the Children’s habitual residence in Italy and change it to the United States. At most, the evidence showed that De Lucia and Castillo shared a settled intention for the children to live in the United States each summer but live in Italy for the rest of the year. And, regardless of Castillo’s intentions with regard to maintaining the green cards, was clear to the Court that De Lucia did not share those intentions.
Castillo argued that even if the Children can only have one habitual residence at a time, they had alternating habitual residences such that both Italy and the United States should be considered the Children’s places of habitual residence. She relied on two Ninth Circuit cases, Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001), and Valenzuela v. Michel, 736 F.3d 1173 (9th Cir. 2013)in support of this argument, but neither supported finding that the United States was the Children’s place of habitual residence on the date of removal under the facts of this action. The Court concluded that the State of habitual residence for R.T.D.L. and N.A.D.L. immediately before the removal was Italy.
De Lucia established, and Castillo did not dispute, that De Lucia had custody rights under Italian law, that he was exercising those rights at the time of the removal, and that Castillo’s removal of the children to the United States violated De Lucia’s custody rights.
Under Italian Civil Code Article 316, “[b]oth parents are entitled with parental responsibility and they shall exercise it by mutual agreement.” “When both parents have recognized a child who was born out of wedlock, they shall be both entitled to exercise parental responsibility.”. under Article 316, both parents have the right to decide on the children’s residence, even if the parents are not married. To change a child’s habitual residence, both parents must agree on the change or convince a judge to grant one parent sole authority to make this decision. The Court found that Castillo “wrongfully removed” the Children from Italy.
Castillo argued that even if the Children were wrongfully removed from Italy, one of the Convention’s narrow exceptions to return applies. Under the Convention, the Court is not bound to order the return of the Children if Castillo proves that “there is a grave risk that [the Children’s] return would expose the[m] to physical or psychological harm or otherwise place the child[ren] in an intolerable situation.” Convention art. 13. “Castillo “must ‘show that the risk to the child[ren] is grave, not merely serious. In this Circuit, the district court is not required to also find that the home country is unable to protect the child from that grave risk of harm.” *8 A “child’s proximity to actual or threatened violence may pose a grave risk to the child.” Baran v. Beaty, 526 F.3d 1340 (11th Cir. 2008); Gomez, 812 F.3d at 1013, 1015. And in Taylor v. Taylor, 502 F. App’x 854 (11th Cir. 2012) Castillo argued that the Children face a grave risk of harm if they are returned to Italy because she had been the victim of domestic violence at the hands of De Lucia; because De Lucia had been sexually inappropriate with the Children; and because the Children would be separated from their primary caretaker if the Children were returned to De Lucia. Castillo presented evidence that De Lucia has a bad temper and has engaged in violent behavior directed at her. But the record also established that the physical violence was isolated, sporadic, and not directed to the Children. Castillo did not testify about any incidents of violence against the Children, and she did not present evidence that she reported any such incidents to the police. And, according to Castillo, De Lucia did not commit any acts of physical violence against her after he moved out of her apartment in December 2016 This evidence suggested that Castillo herself does not believe that De Lucia posed a grave risk of harm to the Children. The Court was not persuaded that Castillo proved by clear and convincing evidence De Lucia posed a grave risk of harm to the Children.
Castillo also contended that De Lucia engaged in inappropriate behavior of a sexual nature with the Children. She pointed to two photos of the Children without clothes, as well as evidence of the “game of the father.” The Court found that the two photos of the Children were inconclusive. Castillo did not present evidence that De Lucia sexually abused either of the Children. The Court also observed that Italy is capable of protecting the Children if they were subjected to serious threats of harm.
Finally, Castillo argued that the Children would be placed in an intolerable situation if they were returned to Italy because they would be cut off from their mother, at least until the Italian court could adjudicate the custody dispute (unless the parties can reach an interim visitation agreement). The Court noted that in every case where a child is returned under the Convention, she may face a risk of psychological harm by being cut off from one parent while the custody dispute is adjudicated. Castillo did not point the Court to any precedent suggesting that this concern merited application of the narrow grave risk of harm exception. Rather, the “intolerable situation” exception has only been applied in a handful of circumstances. The Court concluded that Castillo did not prove by clear and convincing evidence that the grave risk of harm exception to return applied here.
Castillo argued that if the Court ordered return of the Children, the Court should take measures to lessen the risk of harm to the Children. The Court found no grave risks that would justify denial of De Lucia’s petition.
De Lucia asked that Castillo be required to pay his fees and expenses. The Eleventh Circuit has suggested that there are two circumstances under which an award under § 9007(b)(3) is “clearly inappropriate.” The first is when “a fee award would impose such a financial hardship that it would significantly impair the respondent’s ability to care for the child.” Rath v. Marcoski, 898 F.3d 1306, 1311 (11th Cir. 2018). The second is when “a respondent had a good faith belief that her actions in removing or retaining a child were legal or justified.” In this case, De Lucia was proceeding in forma pauperis, so he paid no court fees. De Lucia was represented by pro bono counsel, so he owed no fees or expenses to his lawyers. The Court declined to make such an award in this case. The Court, however, found that Castillo should be required to help pay for the Children to return.
