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Friday, May 10, 2019

Palencia v Perez, 2019 WL 1907867 (11th Cir., 2019)[Guatemala] [Rights of custody] [Petition granted] [affirmed]

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. 

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