Poretti v Baez, 2019 WL 5587151(E.D.N.Y., 2019)[Mexico][Well-Settled] [Age & maturity] Grave risk of harm] Petition denied]

In Poretti v Baez, 2019 WL 5587151(E.D.N.Y., 2019) the district court denied the application of the Petitioner for the return of his daughters to Mexico. 

Mr. Poretti  and Ms. Baez met in 2000.In late 2001, after Mr. Poretti  was relocated to Mexico for work, Ms. Baez moved there to live with him. Mr. Poretti  and Ms. Baez married in 2002 and had their first child, RP, in 2005. In 2010, Ms. Baez gave birth to CP, and in January 2013, she filed for divorce in Mexico. After initiating divorce proceedings, Ms. Baez contemplated returning to New York.  On one such occasion, Ms. Baez traveled to New York from late February through early March 2013 and when she returned to the apartment she still shared with Mr. Poretti , the locks had been changed and she could not enter. When Ms. Baez eventually entered the apartment, the children were gone and Mr. Poretti  would not tell her where they were or when they would return. Ms. Baez sat in the living room of the apartment insisting Mr. Poretti  produce the children while Mr. Poretti  yelled at her and called her derogatory names in front of a neighbor, an attorney and a work colleague, who had all assembled before Ms. Baez’s arrival. “Mr. Poretti  proceeded to yell and berate me for two hours, calling me stupid, an idiot, a whore, and a liar”. When the children’s nanny finally brought them back to the apartment from a neighbor’s house, the girls told Ms. Baez that their father said she had abandoned them and they thought they would never see her again. Three days later Ms. Baez opened the door with her new key to Mr. Poretti , “screaming” and holding a torn copy of an official notice explaining he had violated court orders by changing the locks on the marital residence. With both CP and RP present, Mr. Poretti  physically assaulted Ms. Baez. He pulled her hair, threw her to the floor and instructed the nanny to take her cell phone while he held her arms down. 

After Ms. Baez filed a police report, a medical examination revealed bruising, consistent with an assault. The Mexican Judge signed a divorce decree and granted Ms. Baez primary custody and Mr. Poretti  supervised visitation. Within six months, Mr. Poretti  was permitted unsupervised visitation, on the condition that he undergo psychological evaluations. Throughout the custody proceedings, Mr. Poretti  repeatedly disobeyed court orders, failed to appear for conferences and only appeared for a court-ordered psychological evaluation on penalty of arrest. More than three years after Mr. Poretti  was granted ne exeat rights, and only after the Mexican appellate court reinstated unsupervised visitation conditioned on psychological evaluations—which Mr. Poretti  historically avoided—Ms. Baez decided to expedite her efforts to relocate with her children to the United States. Notwithstanding the fact that Ms. Baez had primary custody of the children, the custody orders directed that neither parent unilaterally change the domicile of the children and that Mr. Poretti  retain ne exeat rights. 

In December 2016, Ms. Baez took her children from Mexico City to Tijuana and walked across the border to the United States. From there, they flew to New York City, where they stayed with Ms. Baez’s mother and sister in Brooklyn, New York. Immediately after the Christmas holiday, CP started elementary school at PS-107, which she still attended today, and RP started middle school. RP now attended Millennium High School in Brooklyn. A few weeks after arriving in New York, Ms. Baez and her children moved in with Ms. Baez’s boyfriend, Mr. Messing. At the time, Mr. Messing lived in an apartment in Park Slope, Brooklyn. Ms. Baez began working as a document reviewer and eventually obtained employment with FINRA, Within a year Ms. Baez and Mr. Messing purchased a new apartment in Windsor Terrace, just a short distance from Park Slope and across the street from Prospect Park. Ms. Baez and her children had now resided in New York for almost three years. During this time, the children had spoken to Mr. Poretti  twice—both within a month of arriving in the United States. CP and RP were thriving academically and socially. Both had many friends, participated in a host of different extracurricular activities and spent time with their mother’s family in New York and New Jersey as well as Mr. Messing’s family in Michigan, Washington D.C. and North Carolina. CP and RP spoke English almost exclusively. Both children made clear in camera that they enjoyed living in the United States in every respect—they felt a strong connection to their friends and family, they enjoyed their schools and activities and did not wish to return to Mexico.

As part of this litigation, both children were interviewed and evaluated by Dr. Peter Favaro, a psychologist who specialize in high conflict divorce and custody proceedings in the United States. Dr. Favaro testified that RP was mature for her age, “achievement oriented,” “articulate” and capable of making an informed decision regarding repatriation. Though CP was younger, Dr. Favaro testified that CP was mature for her age and capable of making an informed decision regarding repatriation. Dr. Favaro testified that the children did not want to return to Mexico and, in his professional opinion, such a decision would be “catastrophic” for CP and RP psychologically, and would likely trigger significant stress. He explained that the children were well-adjusted to life in New York and notwithstanding their obvious resilience and adaptability to changing circumstances, returning to Mexico at this time would cause incalculable “resentment and fear.” 

The court found that Mr. Poretti  had established his prima facie case by a preponderance of the evidence. 

The Court observed that under Article 12 of the Hague Convention, a respondent who establishes by a preponderance of the evidence that a child is “so settled in [her] new environment that repatriation might not be in [her] best interest” may be entitled to the “well-settled” affirmative defense so long as more than a year has passed since the child’s removal from her habitual residence. Blondin v. Dubois, 238 F.3d 153, 164 (2d Cir. 2001): A child is “settled” if repatriation would be “disruptive with likely harmful effects.” In re D.T.J., 956 F. Supp. 2d 523, 534 (S.D.N.Y. 2013) (citing In re Lozano, 809 F. Supp. 2d 197, 230 (S.D.N.Y. 2011)). Whether a child is “well settled” can, but need not necessarily, take into account factors including (1) the child’s age, (2) the stability of the child’s new environment, including the child’s residence, schooling and community engagement, (3) whether the removing parent has stable employment and (4) whether the child has family and developed friendships in the new environment. D.T.J., 956 F. Supp. 2d at 534 (citing In re Koc, 181 F. Supp. 2d 136, 152 (E.D.N.Y. 2001)). Ms. Baez, Mr. Messing and Dr. Favaro all testified that the children were settled, happy and thriving in the United States.
The Court rejected Mr. Poretti’s argument that the well-settled defense cannot apply because, based on his calculation of the children’s “removal,” his Petition was filed within one year. The district court found the Petition was filed more than a year after the children’s removal from Mexico. The children were removed in December 2016. Mr. Poretti  learned of their removal in January 2017 but did not file the Petition until April 2019. The court rejected Mr. Poretti’s argument that because he commenced this action less than one year after the August 2018 Mexican appellate decision affirming a custody order requiring the children remain in Mexico, they were “removed” in August 2018, in violation of that appellate decision. Marks on behalf of SM v. Hochhauser, 876 F.3d 416, 421-22 (2d Cir. 2017) (removal or “retention [of a child] is a singular and not a continuing act” and explaining that “retention” relates to “an initial act of retention” not a “new state of affairs which will follow on such initial acts and which might also be described as retention”). Nor does it toll, in any sense, the one-year period under the Convention. 

The Court found that both RP and CP were well-settled in the United States and repatriation to Mexico would be “disruptive with likely harmful effects.” D.T.J., 956 F. Supp. 2d at 534. The children developed a cohesive network of friends and family in the United States. They were comfortable in every respect, performing well in school, engaged in the community and involved in a host of extracurricular activities. The children’s lives in the United States, were stable, if not enviable. They lived in an apartment owned by their mother and her boyfriend of over five years across the street from Prospect Park. Ms. Baez, who was a citizen of the United States, was gainfully employed.  They had close friends and spent time with their mother’s family and Mr. Messing’s family. They travel and attend camp during the summer months. They participated in myriad extracurricular activities to their hearts’ content. Both children spoke perfect English with no trace of an accent, and often resisted communicating in Spanish. By all measures, the children were accustomed to a happy, normal and secure life in the United States—a life they had formed a lasting connection to over the last three years.

The Court pointed out that “well-settled” means more than having a comfortable material existence, Demaj, 2013 WL 1131418, at *14 (citing Lops v. Lops, 140 F.3d 927, 946 (11th Cir. 1998)), as Respondent had demonstrated. “The totality of the circumstances” revealed the “children’s lives reflected stability in their family, educational, social and most importantly, home life. Demaj, 2013 WL 1131418, at *24 (citing Lozano, 809 F. Supp. 2d at 233). RP and CP had “reached the point at which [they have] become so settled in [their] new environment that repatriation is not in [their] best interest[s]. Three years later, the children’s “interest in settlement” overcomes the Petitioner’s “right to adjudicate the custody dispute in the child’s habitual residence.” Taveras, 22 F. Supp. 3d at 240.

The Court  also considered (1) whether the children had any interest in returning to Mexico, including whatever remaining ties they had to Mexico, (2) the children’s “need for contact” with their father, (3) Mr. Poretti ’s “interest in exercising the custody to which he...is legally entitled” and (4) “the need to discourage inequitable conduct” and “deter international abductions generally.” Both children stated in no uncertain terms that they did not wish to return to Mexico. RP went so far as to state that she was not ready to reestablish a relationship with her father, whatever the location, and CP said she would be “surprised” to learn her father cared about her. Neither child had substantial ties to Mexico. RP mentioned she stayed in touch with one friend from Mexico who had since moved to Miami, and that she only recently reconnected with another former kindergarten classmate still residing in Mexico.

Dr. Favaro testified to the children’s “need for contact” with Mr. Poretti , agreeing that it is “good for a child” to have both parents in their life. There is no reason why that cannot be the ultimate goal for RP and CP. But it was clear that in this case, simply depositing the children back in Mexico would be incompatible with realizing that goal and could jeopardize it. At this point, to return to Mexico would not be a return to the status quo. It would be a new, and perhaps difficult, life. The Court found that Respondent established the well-adjusted defense by a preponderance of the evidence and the Court finds the Petition must be denied on that basis.

The Court observed that it may also deny Mr. Poretti ’s Petition if it finds that RP and CP “object [] to being returned and ha[ve] attained an age and maturity at which it is appropriate to take account of [their] views.” Both RP and CP stated to the Court in camera that they wished to remain in the United States and did not want to return to Mexico. RP expressed no interest in returning to Mexico and CP qualified that she might be amenable to visiting Mexico if it was “just for fun.” When the Court interviewed the children in chambers, outside the presence of the parties and their counsel, it was more than satisfied that each child spoke honestly. Both children were articulate and mature for their respective ages and the Court was impressed by their poise, breadth of interests and ambition. The children’s objections to returning to Mexico were “substantially based on their understanding and appreciation of their significant contacts to New York and the lack of such connection to [Mexico].” Johnson v. Johnson, 2011 WL 569876, at *6 (S.D.N.Y. Feb. 10, 2011) (citing Matovski, 2007 WL 2600862, at *15). The Court found that Respondent established by a preponderance of the evidence that the “children’s wishes” defense applied and warranted denial of Mr. Poretti ’s Petition.

The Court also found that Respondent has established by clear and convincing evidence that the children faced a grave risk of harm if they are returned to Mexico. The stress occasioned by the thought of returning to Mexico could not be understated. It was that traumatic, catastrophic stress and Mr. Poretti’s demonstrated ability to take drastic, sustained and psychologically harmful action with respect to his children while ignoring court orders that persuaded the Court that returning the children to Mexico posed a grave risk of psychological harm that could not be ameliorated by Mexican court intervention.