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Monday, September 30, 2019

Garcia v Galicia, 2019 WL 4197611 (D. Nevada, 2019)[Mexico] [Federal & State Judicial Remedies] [Default judgment] [Petition granted]

In Garcia v Galicia, 2019 WL 4197611 (D. Nevada, 2019) the child’s mother, petitioner Zendy Arleny Torres Garcia, alleged that the child was wrongfully taken from the State of Michoacán, Mexico, to the United States by the child’s father, respondent Teofilo Israel Guzman Galicia. The Magistrate Judge recommended that Torres Garcia petitions for the child to be returned to her in Mexico be granted. The District Court adopted the report and recommendation in an order. See Garcia v Galicia, 201`9 WL 4192729 (D. Nevada, 2019)  

Torres Garcia and Guzman Galicia were cohabitating in Morelia, which is in State of Michoacán, Mexico, when L.M.G.T. was born on July 4, 2006. Torres Garcia and Guzman Galicia are listed as L.M.G.T.’s parents on her birth certificate.  Torres Garcia and Guzman Galicia lived together until May 2015 and that at some unspecified point after that, Guzman Galicia removed L.M.G.T. from Mexico to the United States without Torres Garcia’s knowledge, consent, or acquiescence. According to Torres Garcia, Guzman Galicia is “armed and dangerous” and his violent tendencies and substance abuse caused the parties’ separation. Torres Garcia states that she used to rely on Guzman Galicia for financial support, but that she was left without income when they separated. Garcia explains that the fact she had to “re-enter the work force and fend for [herself]” following the parties’ separation is what allowed Guzman Galicia to keep L.M.G.T. and leave Mexico without Torres Garcia’s knowledge. In January 2017, Torres Garcia filed a custody motion and criminal offense report in Michoacán against Guzman Galicia for abducting L.M.G.T) She filed a Hague Convention request for the return of the child with the Mexican authorities in February 2018. Torres Garcia states she did not know L.M.G.T.’s location until late 2018, when Guzman Galicia contacted Torres Garcia and informed her that he and L.M.G.T. were living in Las Vegas, Nevada. According to Torres Garcia, Guzman Galicia pressured her to sign over her custody rights to him and threatened she would never see L.M.G.T. again Torres Garcia attempted to communicate with Guzman Galicia and his extended family to secure L.M.G.T.’s return to Mexico to no avail. She also attempted to obtain a visa to travel to Las Vegas to get the child herself, but her initial visa application was denied. 

The Court found L.M.G.T. was 12 years old at the time the case was filed, but she had since turned age 13. She attended J.D. Smith Middle School in North Las Vegas. She lived with Guzman Galicia and his family. According to Torres Garcia’s attorney, Guzman Galicia provided Torres Garcia with the following address: 5921 West Bartlett Avenue, Las Vegas, Nevada 89108. Guzman Galicia was served with the complaint and petition for return of the child and the summons. The complaint and summons were delivered to Pedro Franco, roommate/co-resident at 5921 W. Bartlett Avenue, Las Vegas, Nevada, 89108). 

Torres Garcia moved for an ex parte temporary restraining order and for a warrant in lieu of a writ of habeas corpus directing law enforcement to bring Guzman Galicia and L.M.G.T. before the court. The court further ordered Guzman Galicia to show cause in writing why the temporary restraining order should not be converted to a preliminary injunction and to appear at a preliminary injunction hearing on August 8, 2019. Torres Garcia served her emergency motion for injunctive relief her supporting declaration and the court’s temporary restraining order on Guzman Galicia by United States mail on August 2, 2019. On August 7, 2019, Guzman Galicia contacted Torres Garcia’s attorney’s office and requested to move the hearing on the preliminary injunction because he had to work at the “solar farm,” but the attorney’s receptionist instructed Guzman Galicia to contact the court regarding any scheduling conflict he may have with the hearing. Guzman Galicia did not file a written response to the court’s show-cause order or appear at the preliminary-injunction hearing on August 8, 2019. At the hearing, the court converted the temporary restraining order to a preliminary injunction prohibiting Guzman Galicia from removing L.M.G.T. from the State of Nevada pending trial in this case.  After the preliminary-injunction hearing, Torres Garcia attempted to serve the court’s temporary restraining order the minutes of the preliminary-injunction hearing (ECF No. 16), and the court’s subsequent order setting a case-management conference for August 14, 2019 on Guzman Galicia on August 9, 2019, at the Bartlett address, but nobody answered the door. At the time of the second service attempt on August 10, 2019, Guzman Galicia’s sister told the process server that Guzman Galicia moved to North Las Vegas. The process server gave the sister her business card and requested that Guzman Galicia contact her to accept service of the documents. The process server informed Torres Garcia’s attorney that on August 12, 2019, Guzman Galicia called the process server and indicated he was “on his way back from Boulder City” and would pick up the documents at the process server’s office on August 13, 2019. As of 3:00 p.m. on August 13, 2019, Guzman Galicia had not picked up the documents, so the process server left them with Guzman Galicia’s sister at his last-known address on Bartlett Avenue that afternoon. The documents were delivered to Guzman Galicia’s sister, Mireya Guzman, at 5921 W. Bartlett Avenue, Las Vegas, Nevada 89108). Guzman Galicia did not appear at the case-management conference on August 14, 2019.  At the case-management conference, Torres Garcia testified under oath that her aunt informed her that Guzman Galicia and L.M.G.T. have left Las Vegas and were travelling to Mexico by bus with an expected arrival date of August 16, 2019. Apparently, Guzman Galicia texted a photograph of himself and L.M.G.T. on the bus to the aunt, but Torres Garcia had not seen the photograph. Additionally, Torres Garcia testified that Guzman Galicia contacted other family members, including Torres Garcia’s brother and grandmother, to arrange for extended family members to see L.M.G.T. in Mexico next week. Torres Garcia provided to the court addresses in Michoacán where she expected L.M.G.T. will be residing and visiting family members next week. Based on her communications with family members, Torres Garcia testified she did not believe Guzman Galicia and L.M.G.T. are still in Las Vegas. At the hearing, Torres Garcia’s attorney verballed renewed the motion for a warrant in lieu of a petition for writ of habeas corpus and requested that the court order an “Amber Alert.” The court took the renewed motion for warrant in lieu of a petition for writ of habeas corpus under advisement and denied the request for an Amber Alert without prejudice of Torres Garcia to make any requests she deems necessary to the appropriate law enforcement agencies.

Given that Torres Garcia established her case-in-chief for the return of L.M.G.T. by a preponderance of the evidence and that Guzman Galicia failed to answer or otherwise appear in the case to present any defenses to the petition for return, the court recommended that the petition for return be granted. The court further will recommend that L.M.G.T. be returned to Mexico for the appropriate Mexican court to make a final custody decision. The court further will recommend that Guzman Galicia be ordered to appear before the court with L.M.G.T. on a date and time to be specified by the United States district judge assigned to this case for a hearing to determine the logistics of L.M.G.T.’s return to Mexico.

Huete v Sanchez, 2019 WL 4198658 (E.D. Virginia, 2019)[Honduras] [Federal & State Judicial remedies] [Default judgment] [Petition granted]

In Huete v Sanchez, 2019 WL 4198658 (E.D. Virginia, 2019) after the Respondent or a licensed attorney for the Respondent failed to appear at the hearing on April 26, 2019, the Magistrate Judge issued a Report and Recommendation and recommended that default judgment be entered against Respondent that the child be returned to Honduras. The Report and recommendation were adopted and incorporated in an order by the district court. See Huete v Sanchez, 2019 WL 4195336 (E.D. Virginia, 2019).

Petitioner filed the Petition on December 4, 2018, for the return of his daughter (“Child”) to Honduras under 22 U.S.C. § 9001 et seq. The Petition alleged that Respondent, Child’s mother, removed Child from her home in Honduras and took her to Virginia without Petitioner’s consent. The Magistriate Judge observed that Rule 55 of the Federal Rules of Civil Procedure provides for default judgment when “a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend.” FED. R. CIV. P. 55(a). For a Court to render default judgment against a party, it must have both subject matter jurisdiction and personal jurisdiction. This Court had subject matter jurisdiction over this action pursuant to 22 U.S.C. § 9003(a), which provides that United States district courts shall have concurrent original jurisdiction of actions arising under the Hague Convention. Venue was appropriate in this district because although the Respondent was not a resident of the United States, she was located in the district. See 28 U.S.C. § 1391(c)(3) (stating that a defendant who is not a resident in the United States may be sued in any judicial district).

The Court pointed out tha Personal jurisdiction may be founded on either of two theories: general or specific jurisdiction. When “a suit does not arise out of the defendant’s activities in the forum state, the court must exercise general jurisdiction and the requisite minimum contacts between the defendant and the forum state are fairly extensive.” Nichols v. G.D. Searle & Co., 991 F.2d 1195, 1199 (4th Cir. 1993). Those contacts must be “continuous and systematic.” See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416 (1984); Saudi v. Northrop Grumman, 427 F.3d 271, 276 (4th Cir. 2005). The “paradigm” example of general personal jurisdiction is the individual’s domicile. Daimler AG v. Bauman, 571 U.S. 117, 137 (2014). Conversely, when a suit arises out of the defendant’s activities with the forum state, then a court may exercise specific jurisdiction. See Federal Ins. Co. v. Lake Shore, Inc., 886 F.2d 654, 660 (4th Cir. 1989); Helicopteros, 466 U.S. at 414 n.8. In such a case, the contacts need not be so extensive, but “the ‘fair warning’ requirement inherent in due process still demands that the defendant ‘purposely directed’ its activities at the forum.” Federal Ins., 886 F.2d at 660 (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774 (1984)). The Fourth Circuit has expressed due process requirements for asserting specific personal jurisdiction through a three part test in which it considers “(1) the extent to which the defendant purposefully availed himself of the privilege of conducting activities in the State; (2) whether the plaintiff’s claims arise out of those activities directed at the State; and (3) whether the exercise of personal jurisdiction would be constitutionally reasonable.” Consulting Engineers Corp. v. Geometric Ltd., 561 F.3d 273, 278 (4th Cir. 2009).

The Court found that it had general jurisdiction over Respondent because of her continuous and systematic contacts with Virginia. Though Respondent was not domiciled in Virginia because there was no evidence of attempts to obtain United States citizenship, she nevertheless resided in Virginia for the time being. Respondent had been residing in Virginia since March 2018, thereby rendering her minimum contacts with Virginia extensive. 

The Court also had specific jurisdiction over Respondent. First, Respondent has purposefully availed herself of the privileges of conducting activities in Virginia because she resided in the State. Second, Petitioner’s claims arose out of those activities directed at Virginia because Respondent removed Child from her home in Honduras and brought her to Virginia. Finally, the exercise of personal jurisdiction would be constitutionally reasonable because as a resident of Virginia, she had minimum contacts with the State. Since moving to Virginia, Respondent had a fair warning that her activities within the State would subject her to jurisdiction of Virginia. Accordingly, the Court found that it had personal jurisdiction over Respondent.

The Court found that substitute service was proper in this case. Federal Rule of Civil Procedure 4(e)(1) provides that an individual may be served by “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located ....” FED. R. CIV. P. 4(e)(1). Virginia law permits substitute service via posting if the party being served cannot be found at her usual place of abode and a family member who is sixteen years or older is not found at the individual’s place of abode. VA. CODE. ANN. § 8.01-296. According to the proof of service and statements made in Petitioner’s Supplemental Brief, it appeared that substitute service was proper.  Although the proof of service does not indicate multiple attempts at personal service prior to effectuating substitute service, Respondent acknowledged that she received the Summons and Complaint in December 2018 when she reached out to Petitioner and asked Petitioner to terminate this case. This acknowledgment was sufficient for service of process under VA. CODE. ANN. § 8.01-288, which provides that a process which has reached the person to whom it is directed within the time prescribed by law, shall be sufficient although not served or accepted. Respondent accepted service by acknowledging she received the Summons and Petition. Therefore, the Court found that service of process was proper.

The court found that both Petitioner and Respondent were citizens of Honduras and had Child, outside of marriage, on January 3, 2013, in Honduras. Child is under the age of sixteen. From January 2013 to June 11, 2016, Petitioner, Respondent, and Child lived together as a family in Honduras, but were not married. In June 2016, Petitioner and Respondent separated, and Respondent subsequently married someone else taking Child with her. Petitioner continued to support Child by paying for a nanny and school fees to attend a private school. Child also regularly spent the weekend with her father.  Sometime in March 2018, Child’s school informed Petitioner that Child had not attended school since March 6, 2018.  The school did not provide further information, so Petitioner attempted to contact Respondent, but was unsuccessful.  Petitioner then contacted Respondent’s family; however, Respondent’s family did not disclose the location of Respondent and Child. By this time, Respondent had divorced the man she married after separating from Petitioner. On March 30, 2018, Respondent called Petitioner and informed him that she and Child were in the United States.  Respondent would not give an exact location but based on the telephone number from which Respondent had dialed, Petitioner discerned that the call came from Virginia. Petitioner did not consent to moving Child to the United States without him. In the summer of 2018, Petitioner asked Respondent for help in obtaining a visa so that he could visit Child. Respondent refused and stated that there was no need for Child to see him. In August 2018, Respondent then began restricting Petitioner’s ability to speak with Child.  Petitioner had not spoken with Child since September 13, 2018.

The Magistrate Judge noted that he must evaluate Petitioner’s claims against the standards of Rule 12(b)(6) of the Federal Rules of Civil Procedure to ensure that the Petition contains plausible claims upon which relief may be granted. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining the analysis for examining a plaintiff’s claims under a 12(b)(6) motion to dismiss). To meet this standard, a complaint must set forth “sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.” In determining whether allegations are plausible, the reviewing court may draw on context, judicial experience, and common sense. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (citing Iqbal, 556 U.S. at 679).

The court noted that to prove the wrongful retention of a child, a petitioner must prove by a preponderance of the evidence that (1) “it is a breach of rights of custody attributed to a person ... under the law of the State in which the child was habitually resident immediately before the removal or retention,” (2) the removal violated the petitioner’s custody rights under the law of the home country, and (3) the petitioner exercised custody rights over the child at the time of the removal. Hague Convention, art. 3, 191.L.M. at 1501; 22 U.S.C. § 9003(e)(1)(A); Miller v. Miller, 240 F.3d 392, 398 (4th Cir. 2001); see also 22 U.S.C. § 9003(e).
The place of habitual residence is established based on the circumstances of each case. To establish the place of habitual residence before the removal or retention, federal courts use a two-part framework. See Maxwell, 588 F.3d at 251; Velasquez v. De Velasquez, 2014 U.S. Dist. LEXIS 175625, at *8-9 (E.D. Va. 2014). The first question federal courts analyze is whether both parents shared an intention to move from the country of residence. Velasquez, 2014 U.S. Dist. LEXIS 175625, at *8-9. The second question is whether there was an actual change in geography within an appreciable period of time, such that the child will be acclimatized to the new residence.  The Court found that the Child’s habitual residence was Honduras. First, both parents did not have a shared intention to move from Honduras to the United States. Petitioner did not know that Child moved to the United States until weeks after Child had already been removed from Honduras. Petitioner did not consent to Respondent relocating Child to Virginia; rather, Respondent unilaterally decided to remove Child. Second, even though there was an actual change in geography because Respondent took Child to the United States, there was no evidence before the Court to suggest this change was not “coupled with the passage of an appreciable period of time, one sufficient for acclimatization by the children to the new environment.” Maxwell, 588 F.3d at 251. Child was born in Honduras and remained there until she was removed by Respondent over a year ago. Pet. Although Child has remained in the United States for over a year, which may lead to an inference of acclimation, there was no evidence that Child attended school in Virginia, that she was a legal resident of the United States, or that she participated in school activities. The length of stay is only but one factor to consider when determining Child’s acclimation. Without other evidence that Child had acclimated to the United States or Virginia, the Court found that Child’s habitual residence remains Honduras.

The Court found that petitioner had custody rights. Under Honduran law, “the exercise of parental authority belongs to both parents jointly.” Honduran Family Code, Title V (Custody), Chapter I (General Provisions), Art. 187. Moreover, parents who do not cohabitate still share the care and custody of the children. Honduran Family Code, Art. 193. When a parent reserves patria potestas rights over a child, among the rights the parent retains is the right to choose where the child is domiciled. Alcala, 2014 U.S. Dist. LEXIS 153728 at *15; see also 22 U.S.C. § 9003(e). As such, a parent who wishes to travel outside of Honduras must obtain written permission from the other parents. Honduran Code of Childhood and Adolescence, Chapter III (Authorization to Travel), Art. 101. Petitioner has custody rights over Child under Honduran law. When Petitioner and Respondent separated, Petitioner did not relinquish his custody rights over Child. Petitioner still had patria potestas rights over Child. As such, Respondent was required to obtain permission from Petitioner of her intent to move Child to the United States. See Honduran Code of Childhood and Adolescence. Chapter III (Authorization to Travel), Art. 101. Respondent failed to seek permission or inform Petitioner that she was removing Child from Honduras. She instead informed Petitioner weeks after Child had already been removed from Honduras. Therefore, Petitioner retained custody rights over Child and the removal of Child violated Petitioner’s custody rights.

Based on the facts, the Court found that Petitioner retained and exercised custody rights over Child at the time of removal, and that Petitioner demonstrated by a preponderance of evidence that Respondent wrongfully removed Child from Honduras. Petitioner exercised and retained his custody rights over Child after he separated from Respondent. Respondent breached Petitioner’s custody rights by removing Child from her habitual residence of Honduras and violated Petitioner’s patria potesta rights by removing Child from Honduras without Petitioner’s consent. Child should be returned to Honduras.

Diaz v Ibarra, 2019 WL 4394491 (D. Arizona, 2019)[Mexico] [Rights of custody] [Ne exeat rights] [Patria Potestas]

In Diaz v Ibarra, 2019 WL 4394491 (D. Arizona, 2019) the district court granted the father’s petition for the return of the child to Mexico. Valentin Zarate Diaz (“Father”) and Laura Andrea Rios Ibarra (“Mother”) were the parents of Son V, a minor child. 

The parties agreed to forgo an evidentiary hearing and instead submit this case on the briefs. Father and Mother were both citizens of Mexico. They had never been married. They are the parents of Son V, who was born in Mexico in February 2012. They “intermittently lived together for several months when Son V was an infant” but “have not lived together since September 2014.” Their relationship was “tumultuous.” Following their break-up, Son V resided with Mother (in a house owned by Father)2 but Father remained actively involved in Son V’s life. 
On November 19, 2015, Father and Mother entered into an agreement addressing their respective rights concerning Son V (the “Agreement”), which contains the following clauses… (2) The parties agree that “the days of cohabitation with [Father] will be any day of the week within a prudent schedule for the child, provided that [Father] doesn’t come in an inconvenient state, and that he doesn’t interrupt the child’s chores,” and further agree that if either party has “an event that requires the child, they will have no inconvenient.” (3) “[T]he addresses where the child will reside will be [a particular house in Sonora, Mexico] where the child currently lives with [Mother].” Additionally, the Agreement contained a provision certifying that “everything relating to the present agreement, is su[b]mitted to the jurisdiction of the pertinent judge of this judicial district” and concludes with a joint request by Mother and Father for the Agreement to be “su[b]mitted to the Judge of First Instance in Family Matter ...for its revision and approval in the terms of the [laws of] the State of Sonora.”  On August 23, 2018, Mother requested that Father sign a passport application for Son V to travel to the United States. Sometime between August 31, 2018 and September 3, 2018, Mother moved with Son V to the United States. Father did not consent to Mother’s removal of Son V from Mexico. Mother’s purpose in moving to the United States was to accept a job offer to work as a civil engineer at an engineering firm in Arizona. 

On September 12, 2018, Father filed a “Motion to Enforce Agreement” with the family court in Sonora, Mexico. Among other things, Father argued in this motion that Mother had violated the third clause in their Agreement, which required Son V to reside at a particular home in Sonora, Mexico. Father also stated in the motion that “it is true that [Mother] can freely decide where she will live with my minor child” and argued that the violation of the third clause arose from Mother’s “refus[al] to give me true and necessary information of her whereabouts for me to exercise my rights as a parent.” On or about October 15, 2018, the Mexican family court denied the “Motion to Enforce Agreement” that Father had previously filed. The court’s rationale for denying the motion was that “considering the drastic change in circumstances, ([Mother’s] address), it is not materially possible to enforce the agreement regarding parenting time the way the moving party is requesting.” On October 17, 2018, Mother filed a “Notice of Relocation” with the Mexican family court. This notice explained that Mother had moved to the United States for “personal and professional reasons.” On October 18, 2018, Father filed a “Motion to Revoke” the order denying his motion to enforce. On October 23, 2018, the Mexican family court issued an order denying the “Motion to Revoke.” In this order, the court explained that it hadn’t denied Father’s previous motion for any merits-based reason—instead, it had denied the motion because Mother’s relocation to the United States meant that “it is not possible to effectuate the enforcement of the virtue of the fact that the minor child no longer lives in the home where it was agreed he would be placed.” The court further clarified that Father’s “rights are preserved and he may exercise them in the appropriate procedure and form.” On July 9, 2019, Mother filed a “Motion to Modify Parenting Time with Our Minor Child” with the Mexican family court. In this motion, Mother described the Agreement as a document that “established parenting time between non-custodial parents and our child.” 

The district court observed that to determine whether the removal/retention was “wrongful,” a district court must answer a series of four questions: (1) When did the removal or retention at issue take place? (2) Immediately prior to the removal or retention, in which state was the child habitually resident? (3) Did the removal or retention breach the rights of custody attributed to the petitioner under the law of the habitual residence? (4) Was the petitioner exercising those rights at the time of the removal or retention? Mozes v. Mozes, 239 F.3d 1067, 1070 (9th Cir. 2001). If the Court answers these questions in the petitioner’s favor, the burden shifts to the party opposing the return of the child—here, Mother—to prove “by clear and convincing evidence that one of the exceptions set forth in article 13b or 20 of the Convention applies.” Id. § 9003(e)(2)(A).

The only disputed legal issue in this case concerned the third element of the Mozes test—whether Mother’s removal of Son V from his state of habitual residence (Mexico) on or around August 31, 2018 (the date of the removal) violated the “rights of custody” that were attributed to Father under the laws of the state of habitual residence. “The parties agreed that the only issue in dispute was the third question. As a result, the return of Son V was only mandated if rights of custody were e attributed to Father under the law of the habitual residence.

The Court noted that  the seminal decision addressing the meaning of the term “rights of custody” under the Convention is the Supreme Court’s 2010 decision in Abbott v. Abbott, 560 U.S. 1 (2010) where the Supreme Court held that a ne exeat right is a right of custody, not  a mere “right of access. A ne exeat right is a right to consent before the mother could take the child out of Mexico. The Court agreed with Father that the parties agreement established rights of custody. The Agreement’s key provision was its third clause, under which Mother and Father jointly agreed that “the address where the child will reside will be” the home owned by Father in Sonora, Mexico, which is the “place where the child currently lives with [Mother].” The necessary implication of this clause was that Mother was precluded from unilaterally moving Son V into a different residence within Mexico—let alone to a different country—without Father’s permission. If a ne exeat right constitutes a “right of custody” for purposes of the Convention, it follows that Father’s rights under the Agreement—which go further than a ne exeat right, because the Agreement implicitly prohibits even the intra-country relocation of Son V by Mother—is a “right of custody,” too.

The father also argued that the Mexican doctrine of patria potestas, or parental authority, granted him a right of custody by operation of law. “The doctrine of patria potestas has its roots in Roman law, where it conveyed absolute and despotic rights of a father over his children; today, in Mexico, the doctrine regulates relations between parents and children until the latter reach the age at which they must fend for themselves.” Gonzalez v. Preston, 107 F. Supp. 3d 1226, 1234 (M.D. Ala. 2015). Patria potestas “constitutes the ‘most comprehensive’ right that a parent can exercise over the person and property of his or her minor children.” Saldivar v. Rodela, 879 F. Supp. 2d 610, 624 (W.D. Tex. 2012). It “establishes the parent’s bundle of rights over a minor child, one of which is formal custody, but it also includes the right to care for the child and make decisions about his or her life.” Preston, 107 F. Supp. 3d at 1234. The Mexican State of Sonora—which was the habitual residence of Son V at the time of his removal—codifies the doctrine of patria potestas in its Family Code (“the Code”). The Code defines patria potestas (in the Code, referred to as “parental authority” ) generally as “a set of rights and obligations granted and legally binding on parents, or grandparents where appropriate, to fulfill the obligations to feed, protect, and raise their descendants, and to appropriately manage their assets.” Code art. 308 More specifically, one who has patria potestas over a child is required “to protect and educate [the child] properly” and “observe the [child] and educate [the child] to obey the rules of social coexistence.” Code art. 317. That person also has “the faculty to admonish and correct, avoiding always cruel and unnecessary punishments.” The Court agreed with Father that the Agreement didn’t extinguish his patria potestas rights. In fact, the evidence submitted by both parties demonstrates that Father retains patria potestas rights over Son V. The Code explicitly provides that “[p]arental authority cannot be waived.” Code. art. 340. The Code also identifies various ways in which patria potestas can be lost or suspended—none of those include by a custody agreement. Code arts. 338, 339.  Indeed, the Code states that “[w]hen parents of a born out of wedlock child separate,” as Father and Mother have done here, “both will continue to exercise [patria potestas]” even after an agreement on custody, child support, and visitation has been reached. Code art. 315.1.

The Court agreed with Father that patria potestas constitutes a right of custody under Sonoran law. See generally Gallardo v. Orozco, 954 F. Supp. 2d 555, 572-74 (W.D. Tex. 2013) (surveying Sonoran law before concluding that “Petitioner has rights of custody conveyed by patria potestad under the laws of the State of Sonora, Mexico” and that these rights “gave Petitioner specific rights of custody as defined in the Convention”). The Code provides that “[w]hen parents of a born out of wedlock child separate, both will continue to exercise [patria potestas] but must agree on who will retain custody of the minor, as well as the way of administering child support and the right of the noncustodial parent to monitor and relate with the minor.” Code art. 315.1. A parent’s rights under patria potestas, therefore, must be more expansive than the rights to (1) physical custody, (2) the obligation to financially support the child, and (3) right to “monitor and relate with” the child, because both parents “will continue to exercise [patria potestas]” after agreeing on those three items.

Thursday, September 12, 2019

Watts v Watts, --- F.3d ----, 2019 WL 4197486 (10th Cir., 2019)[Australia] [Habitual residence] [Petition denied]

In Watts v Watts, --- F.3d ----, 2019 WL 4197486 (10th Cir., 2019) the Tenth Circuit affirmed the district courts determination concerning the location of the children’s habitual residence. 

Shane Watts was a dual citizen of Australia and the United States. Carrie Watts was a citizen of the United States. In 2005, Shane and Carrie married in Park City, Utah. From December 2006 to June 2016, the couple lived in North Carolina, where they reared their three children, also dual citizens of Australia and the United States, and ran an international dirt-bike-racing school: DirtWise. In March 2016, the couple learned that their middle child would need specialized medical attention possibly including expensive palate-extension surgery. The family decided to move to Australia to benefit from that country’s universal-healthcare system. The couple intended to live in Australia until completion of their son’s medical treatment. They estimated this would take about two to two-and-a-half years. In spring 2016, the family began preparing for the move. Shane and Carrie rented out their home in North Carolina and temporarily moved the family into Carrie’s parents’ house in Utah. The family lived at this house in Utah from June 2016 to September 2016. While living at Carrie’s parents’ house, the family traveled around the western United States, in part “to evaluate places where they might choose to live when they returned from Australia.” During this time, “the parties had many conversations about their intentions to live in Australia only long enough to obtain [their son’s] healthcare.” 

In September 2016, the family moved to Australia. They rented a home in Shane’s hometown of Maffra, Victoria and shipped many of their belongings to Australia.2 Carrie had also applied for, and was later granted, a temporary visa enabling her to remain in Australia for 12 months. In October 2016, Shane and Carrie enrolled their children in school in Australia. After the rental home proved too small, Shane and Carrie bought a house. In March 2017, the family moved into this home. The move to Australia placed additional stress on Shane and Carrie’s already-strained marriage. Carrie had developed second thoughts about the move and questioned the sustainability of the stint in Australia. Shane continued to travel overseas for work and, while doing so, rarely spoke with Carrie. Concerned that she would be unable to work if she and Shane later divorced, Carrie applied for a permanent visa.

In April 2017, Carrie called a family meeting, attended by Shane’s parents and Carrie’s mother. Everyone agreed that Shane and Carrie needed to remain together so that their child could continue to receive necessary medical care, and so that Carrie could get her permanent visa. Shane and Carrie’s relationship continued to deteriorate. From April 20 to May 20, 2017 and again from May 30 to July 13, 2017, Shane traveled to the United States to teach DirtWise classes. One morning, Carrie discovered that she had been locked out of all their shared accounts and that Shane had cancelled, or set zero-dollar limits on, their joint credit cards. This marked the beginning of the end. 

About July 13, 2017, Shane returned to Australia, and on July 26, 2017, he tried one last time to persuade Carrie to work on the marriage. When she declined, Shane notified the Australian immigration authorities that they had separated, and he withdrew his sponsorship of Carrie’s permanent-visa application. On August 17, 2017, about three days after learning that Shane had withdrawn his sponsorship of her permanent-visa application, Carrie took the children and flew to Utah. She did not tell Shane beforehand, and she lied to customs agents that she was traveling to the United States for a short visit. As the district court found, [before] removing the children and returning to the United States, the parties never had a shared mutual intent to make Victoria, Australia the habitual residence of the children. At no time did Carrie and Shane mutually agree to change their initial plan to be in Australia only long enough for [their son] to receive his medical care—after which they would return to the United States to raise the children.  In total, the family lived in Australia for just over eleven months. 

Shane petitioned a federal court in Utah for the return of the children. The district court denied Shane relief and dismissed the petition. In its order, the district court concluded that Shane had failed to prove by a preponderance that Australia was the children’s habitual residence. The district court noted that courts traditionally rely on two factors when determining a child’s habitual residence under the Convention. The first factor is the child’s acclimatization to the country that the petitioner claims is the habitual residence. As the district court framed it, when determining acclimatization, a court must resolve whether the “children have become so rooted in the new country that” removal “is tantamount to taking the child[ren] out of the family and social environment in which [their] life has developed.” (citing Mertens v. Kleinsorge–Mertens, 157 F. Supp. 3d 1092, 1105 (D.N.M. 2015)). The second factor is the parents’ last shared intent. To that end, the parents must evince “a degree of settled purpose” or “a sufficient degree of continuity to be properly described as settled.” (citing Kanth v. Kanth, No. CIV 99-4246, 232 F.3d 901, 2000 WL 1644099, at *1 (10th Cir. Nov. 2, 2000)). The district court held that under both factors, Shane had failed to show by a preponderance of the evidence that Australia was the children’s habitual residence.

The Tenth Circuit rejected Shane’s argument that the district court erred by conflating the habitual-residence standard with the domicile standard that traditionally governs jurisdiction over American child-custody disputes. He claimed that, as a prerequisite for habitual residency, the district court required that he and Carrie have shared an intent to stay in Australia “permanently or indefinitely.” A review of the district court’s order defeated Shane’s claim. In deciding this case, the district court relied in part on the courts unpublished opinion in Kanth, 2000 WL 1644099, at *1, 232 F.3d 901. In Kanth it observed that the term “habitual residence” is not defined by the Hague Convention or the U.S. Code.  It also observed that the term should not be interpreted technically or restrictively. Instead, a district court should examine the “specific facts and circumstances” presented in each case to determine if there is a “settled purpose,” or “a sufficient degree of continuity to be properly described as settled.” It agreed with Shane that a family need not intend to remain in a given location indefinitely before establishing habitual residency there. The length of an intended stay is just one factor to consider when determining whether the petitioner has proven “a sufficient degree of continuity to be properly described as settled.” The problem with Shane’s argument was that the district court did not require permanency. In its order dismissing Shane’s petition, the district court cited the unpublished order in Kanth and recognized that permanency is not necessary to establish habitual residency. The district court considered the “specific facts and circumstances” surrounding the Watts’ move to Australia and, in doing so, looked to the length of the family’s intended stay as one factor among many. The court noted that the family intended to remain in Australia for “a highly specific purpose which by its nature had a limited duration,” and that “[t]he couple maintained a home in North Carolina; stored many household, holiday, and sentimental possessions in Utah”; and maintained “U.S. financial ties.” Additionally, the court noted that “Shane maintained his company, DirtWise, primarily operating in North America.” Considering these facts together, the court concluded that Australia was not the children’s habitual residence. Despite Shane’s claim to the contrary, the court did not require permanency as a necessary component of proving habitual residency. Accordingly, the court did not err in this regard.

Shane argued that the district court erred by failing to consider his and Carrie’s “present, shared intentions regarding their child[ren]’s presence” in Australia. Here, the court found that the shared intent “was to remain in Australia for a highly specific purpose which by its nature had a limited duration.” Shane cited cases in which courts had found that a shared intent to remain in a location for two to four years was sufficient to sustain a habitual-residence finding. (citing Whiting, 391 F.3d at 551, and Toren v. Toren, 26 F. Supp. 2d 240, 243–44 (D. Mass. 1998)). This timeline alone establishes habitual residency. It held that when determining habitual residency, courts must consider all the facts and circumstances surrounding the family’s life in a given location. Under some facts and circumstances, two years may suffice to establish habitual residency. See Whiting, 391 F.3d at 551. But the intended length of a stay, on its own, does not necessarily demonstrate habitual residence. Instead, a court should consider all the circumstances surrounding a family’s intent to remain in a location and determine if there is a “sufficient degree of continuity to be properly described as settled.” Kanth, 2000 WL 1644099, at *1, 232 F.3d 901 (quoting Feder, 63 F.3d at 223). The district court properly conducted this analysis and, in doing so, committed no legal error.

Shane next argued that the district court ran afoul of Kanth, 2000 WL 164409. In Kanth, it reviewed a district court’s habitual-residence determination. . In doing so, it noted that “[a]lthough it is the child’s habitual residence that the court must determine, in the case of a young child the conduct, intentions, and agreements of the parents during the time preceding the abduction are important factors to be considered.”  The children in Kanth were three and six years old when they were taken from Australia by their mother.  In contrast, Shane and Carrie’s children were 7, 10, and 12 years old when Carrie removed them from Australia. Shane argued that Kanth’s emphasis on parental intent did not apply here, because the Watts children are older. But the record revealed that the court did not, as Shane argued, place “heavy importance on parental intent over child acclimatization.”. Instead, the district court considered both factors independently and equally. In its order dismissing Shane’s petition, the court found that “under the totality of the evidence before it ... the children did not acclimatize to Australia.” The court considered acclimatization from the children’s perspective and relied on evidence demonstrating that the children’s family and social environment had not sufficiently developed in Australia.7 Additionally, the court concluded that “even if the children had acclimatized,” Shane and Carrie’s last shared intent was to stay in Australia “only for a limited time.” The court thus considered both acclimatization and parental intent as independent factors. 

Shane argued that the district court legally erred by not fully crediting how long the children had been in Australia. To that end, Shane argued that “nearly one year spent living in a country in which the children believed they would spend at least a few more years of their lives is indeed a sufficient amount of time to acclimatize.”  The Court held that a child may acclimatize to a new location in a year; however, it is equally true that a year might be an insufficient amount of time for acclimatization. To keep a court’s habitual-residence determination free from technical restrictions, it would not read into the term “habitual residence” any conclusive time frame. Though the length of time a child lives somewhere matters in determining whether the child has acclimatized there, it is merely one factor among many. Thus, the court applied the correct legal standard by considering the totality of the circumstances—not just the amount of time spent in Australia—when determining whether the children had acclimatized.

Shane’s last claim of legal error was that the district court failed to determine which state—Utah or North Carolina—was the children’s habitual residence. Shane relied on Article 31(a) of the Convention and claimed that after the court determined that Australia was not the children’s habitual residence, the court needed to decide which state within the United States was the children’s habitual residence. It rejected this argument. When, as here, the petitioner fails to establish habitual residence, Article 31 is not implicated. See Feder, 63 F.3d at 221–22, n.8 (“If a child’s habitual residence is a State which has more than one territorial unit, the custody rights laws of the territorial unit apply. ... In the United States, the law in force in the state in which the child was habitually resident ... would apply to determine whether a removal or retention was wrongful.” (citing Hague Convention, art. 31)). The Convention does not require a district court to determine where a child habitually resides. Instead, the Convention requires a district court to determine whether the child habitually resides in the location that the petitioner claims. If the child habitually resides there, the Convention demands that the court determine whether the child’s removal from that location was wrongful. See Shealy, 295 F.3d at 1121–22. Here, the court found that the children did not habitually reside in Australia, so it matters not in which state in the United States the children now reside. In any event, the district court had no occasion to apply Article 31 here, because it found that Shane failed at the first step—that is, he did not show that Australia was the children’s habitual residence.