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Friday, February 1, 2019

Calixto v Lesmes, 2019 WL 397003 (M.D. Florida, 2019)[Colombia] [Habitual Residence] [On remand]

          In Calixto v Lesmes, 2019 WL 397003 (M.D. Florida, 2019) on September 1, 2017, Mr. Calixto filed an action against Ms. Lesmes, M.A.Y.’s mother, for the return of five-year old M.A.Y., to Colombia. The Court referred the matter to a Magistrate Judge to hold an evidentiary hearing. Her Report and Recommendation reasoned: “Because the United States, not Colombia, is M.A.Y.’s habitual residence, Petitioner cannot establish a prima facie case of Respondent’s wrongful retention of M.A.Y.,” and therefore Mr. Calixto’s Verified Petition to Return the Child to Colombia should be denied. The District Court adopted the initial Report and Recommendation and denied Mr. Calixto’s Petition.

          On appeal the Eleventh Circuit remanded the case for further fact finding noting: “The critical question, as the district court correctly understood, is whether in November of 2016 M.A.Y. remained a habitual resident of Colombia or whether her habitual residence had changed to the United States.” According to the Eleventh Circuit, “If it is the former, Mr. Calixto established a prima facie case requiring M.A.Y.’s return to Colombia.”. However, the Eleventh Circuit explained that if M.A.Y.’s habitual residence changed to the United States, then “M.A.Y.’s retention was not wrongful under the Convention, and Mr. Calixto’s petition fails.”.
The Eleventh Circuit pointed out that the District Court “did not resolve the significant conflicts in the testimony, such as the status of the relationship between Mr. Calixto and Ms. Lesmes in November of 2015, the reason for Mr. Calixto’s execution of the travel consent form, and the circumstances surrounding the travel of Ms. Lesmes and M.A.Y. to the United States.” Further, the Eleventh Circuit noted that the District Court failed to “address whether Mr. Calixto’s intent to change M.A.Y.’s habitual residence was conditioned upon his joining Ms. Lesmes and M.A.Y. in the United States or whether that intent was vitiated once Mr. Calixto was unable to come to the United States.” The Eleventh Circuit highlighted the instances where Mr. Calixto and Ms. Lesmes offered differing accounts of critical facts and directed this Court to make further findings of fact to resolve the discrepancies. And, in an effort to prevent subsequent appeals, the Eleventh Circuit directed the District Court to address on remand whether the evidence provides either of the alternative means of establishing habitual residence as set forth in Ruiz v. Tenorio, 392 F.3d 1247, 1254 (11th Cir. 2004). (Doc. # 67 at 29). The Eleventh Circuit retained jurisdiction over the appeal in order to issue an expedited ruling. The District Court thereafter referred the matter to the Magistrate Judge for supplemental findings in accordance with the Eleventh Circuit’s directives.

          Thereafter, the Magistrate Judge held a status conference and asked the parties to brief the issues. The Magistrate Judge held oral argument after receiving the parties’ briefs.  On January 15, 2019, she issued her Supplemental Report and Recommendation.  The Magistrate Judge recommended that the Court find that “the travel consent form indicates Mr. Calixto’s agreement that M.A.Y. would move to the United States, and the return date was indication that Mr. Calixto wanted M.A.Y. to visit him if he could not gain entry into the United States.” The Magistrate Judge explained: “Centrally, because Mr. Calixto and Ms. Lesmes were not a couple [in November of 2015, when he signed the travel consent form], Mr. Calixto’s belief that they would travel to the United States as a family is unsupported.”  The Magistrate Judge highlighted that Mr. Calixto made no reasonable efforts to gain permanent residency status in the United States.  Instead, he only applied for tourist visas, and such visas were denied.  The Magistrate Judge noted: “The evidence suggests his visa applications were denied because he lied on them.”  After making numerous factual findings and credibility determinations, the Magistrate Judge found that “Mr. Calixto shared an unconditional intent to change M.A.Y.’s habitual residence to the United States, regardless of his ability to enter the United States.” The Magistrate found that M.A.Y.’s habitual residence changed to the United States, and that the alternative means discussed in Ruiz, 392 F.3d at 1254, were not satisfied. The Magistrate Judge ultimately recommended that the Court “find that M.A.Y.’s habitual residence changed to the United States based on her parents’ shared, unconditional intent.”

          After conducting a careful and complete review of the findings, conclusions and recommendations, and giving de novo review to matters of law, the Court accepted the factual findings and legal conclusions of the Magistrate Judge and the recommendation of the Magistrate Judge. The Court determined that it was appropriate to adopt the Supplemental Report and Recommendation. In so doing, the Court stated that it was aware of the Eleventh Circuit’s strong admonition: “The return remedy is the Convention’s central operating feature.” Fernandez v. Bailey, 909 F.3d 353, 363 (11th Cir. 2018)(citing Abbott v. Abbott, 560 U.S. 1, 9 (2010)). The Fernandez Court explains: “Based on the principle that the best interests of the child are well served when decisions regarding custody rights are made in the country of habitual residence, return must be the default in order to lay venue for the ultimate custody determination in the child’s country of habitual residence rather than the country to which the child is abducted.” In Fernandez, it was undisputed that the abducted children were habitual residents of Panama. The petitioning father established a prima facie case under the Hague Convention for return of the children to Panama, but the Court determined that the respondent mother demonstrated that an exception applied. The Court’s analysis of the exception, regarding the children being well settled in the new country, was reversed. Here, rather than dealing with an exception to repatriation, the Court was called upon to determine whether Mr. Calixto had met his prima facie burden of demonstrating that M.A.Y. was a habitual resident of Colombia. This Court adopted all of the factual findings and credibility determinations of the Supplemental Report and Recommendation and found that M.A.Y.’s habitual residence changed to the United States based on Mr. Calixto’s unconditional intent, which he shared with Ms. Lesmes, and returned the matter to the Eleventh Circuit