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
