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Friday, April 19, 2019

Griffiths v Weeks, 2018 WL 7824477 (S.D. Florida, 2018)[Australia] [ Habitual residence] [Petition denied]

          In Griffiths v Weeks, 2018 WL 7824477 (S.D. Florida, 2018) the district court denied the Petition of Jema Griffiths, a citizen and resident of Australia for the return of her minor child M.W., on the ground that at the time of the wrongful retention the child’s habitual residence was Florida.

          Griffiths and Weeks met via Facebook in early 2013 and initiated a relationship in April 2013. At the time, Griffiths was 16 and Weeks was 20 years old. For approximately two years, Griffiths and Weeks maintained a romantic relationship via Facebook. In March 2015, Weeks traveled to Griffiths’ family home in Australia to meet Griffiths in person for the first time.  During this trip, Griffiths became pregnant with M.W. At the conclusion of the trip, Griffiths and Weeks ended their relationship. In April 2015, Griffiths learned she was pregnant and informed Weeks of the pregnancy. Griffiths gave birth to M.W. in Australia on December 19, 2015.

          After the child’s birth, Griffiths brought M.W. to her family home where she cared for the child with the help of her mother. On February 14, 2016 when M.W. was approximately two months old, Weeks traveled on a round-trip airline ticket to Australia to meet his daughter. While there, Griffiths’ mother gave Weeks an opal ring which he used to propose to Griffiths on February 20, 2016. By March 2016, Griffiths and Weeks began discussing their plans to travel to the United States. Griffiths expressed some concerns about her ability to afford and access necessities for M.W. in Australia, and Weeks reassured Griffiths that once she arrived in the United States, they would be able to provide completely for M.W. During these conversations, Weeks encouraged Griffiths to get a six-month tourist visa for travel to the United States so that they could get married. On May 11, 2016, Griffiths, Weeks, and M.W. traveled to the United States. Weeks traveled on the return leg of his round-trip ticket and Griffiths and M.W. traveled separately on a different plane. Griffiths testified that she and M.W. traveled to the United States to meet Weeks’s family, while Weeks testified that the parties intended to marry while in the United States. When Griffiths and M.W. arrived at in Los Angeles, Griffiths was denied entry. According to Griffiths, during questioning at the airport, Griffiths—who was traveling on a tourist visa—told customs and border officials that she was engaged to be married to Weeks but that she was not planning to stay in the United States. Griffiths and M.W. returned to Australia without admission to the United States. Griffiths testified that after she returned to Australia with M.W., Weeks told her that he was working with lawyers and his family to get her to Florida so that she, Weeks, and M.W. could be together as a family. In June, Weeks returned to Australia for the second time, and Weeks, Griffiths, and M.W. traveled together to Mexico. According to Weeks, after Griffiths had been denied entry to the United States in May, Griffiths and Weeks decided they would get married in Mexico and then travel together as a family to the United States where they would ultimately settle. Griffiths, on the other hand, testified that she was only traveling to Mexico with plans to continue on to the United States temporarily and intended to return to Australia.

          On August 17, 2016, Weeks and M.W. traveled to Florida on one-way plane tickets, and on August 18, 2016, Griffiths traveled back to Australia. Weeks brought both M.W.’s and Griffiths’s belongings to Florida. Griffiths testified that the purpose of her trip to Australia was to complete the fiancĂ© visa process and to attend to complications from a medical procedure she had while in Mexico. In late August of 2016, Griffiths demanded that Weeks bring M.W. to Australia. Weeks refused. In November, Griffiths and Weeks began the K-1 visa application process. Although Griffiths initially testified that she did not sign the K-1 visa, upon questioning from the Court she stated that she intended to apply for the K-1 visa and that she electronically signed it. Griffiths also testified that she sent Weeks a portion of the fees required for the K-1 visa. In November 2016, the parties received notification that the K-1 visa had been processed and that Griffiths was scheduled for an interview. Griffiths testified that she never received notification for the K-1 visa interview and that she never attended the interview. Facebook messages between Griffiths and Weeks demonstrated that she was at least aware the interview was scheduled. 

          The district court observed that the Hague Convention does not define the term “habitual residence.” The Eleventh Circuit, however, has determined that “[t]he first step toward acquiring a new habitual residence is forming a settled intention to abandon the one left behind.” The analysis of the settled intent of the parents is far from formulaic; rather, the Court must examine the specific circumstances and actions of the parties to establish a shared intent to establish a particular residence. Such mutual shared intention need not be established over a long period of time. Under the second step, the Court looks to how settled and acclimatized the child is in the country of alleged wrongful retention. However, this factor carries less weight when the child is very young and “the customary considerations in analyzing habitual residence from the point of view of the child are not easily applicable.” Specifically, “acclimatization is an ineffectual standard by which to judge habitual residence in such circumstances because the child lacks the ability to truly acclimatize to a new environment.”). Accordingly, in determining habitual residence of a young child such as M.W. here, the Court must give greater weight to the subjective intentions of the parents, as opposed to the settled intent of the child herself. Berezowsky v. Ojeda, 765 F.3d 456, 466 (5th Cir. 2014); Karkkainen v. Kovalchuk, 445 F.3d 280, 287 (3d Cir. 2006)); Holder v. Holder, 392 F.3d 1009, 1020–21 (9th Cir. 2004).

          The record before the Court demonstrated that Griffiths and Weeks had a mutual shared intent to establish M.W.’s habitual residence in the United States. In May 2016 after their engagement, Griffiths and Weeks developed plans to move the family to the United States. Their first attempt to relocate failed when Griffiths was detained by customs and border officials at the Los Angeles airport. During their second attempt, Griffiths and Weeks traveled first to Mexico with the intent to first marry in Mexico and then to travel together as a family to the United States. Griffiths packed the items that she and M.W. would need in the United States, including her travel documents, necessities, jewelry, and other valuables including Griffiths’s stone collection and her mermaid tail. While in Mexico, Griffiths and Weeks met with attorneys to determine how Griffiths could legally relocate to the United States with Weeks and M.W. who are both U.S. citizens. They determined that the most efficient way to relocate was by applying for a K-1 visa. In furtherance of that plan, Griffiths signed the Travel Authorization which gave permission for M.W. to travel with Weeks to the U.S. while she returned to Australia so that she could apply for the visa. Griffiths paid a portion of the K-1 visa fee and signed the K-1 visa application. She and Weeks discussed possible places to live together in South Florida and Griffiths identified a bar in Fort Lauderdale where she planned to apply to work as a mermaid entertainer. Despite the couples’ tight finances, she invested in a mermaid tail so that she could secure that position. Griffiths and Weeks also decided that they would stay with Espinosa Weeks for no more than one year while they became settled before securing their own home. Griffiths and Weeks discussed with family members that they planned to relocate Florida, including with Griffiths’s stepmother and Espinosa Weeks who prepared for M.W.’s arrival by purchasing a crib and other age-appropriate necessities that included diapers, bottles, and formula.

          The court found that beginning in May 2016, Griffiths and Weeks shared a mutual intent to relocate to the U.S. and took concrete steps to achieve that intent. Ruiz v. Tenorio, 392 F.3d 1247, 1253 (11th Cir. 2004). This was sufficient to establish M.W.’s habitual residence in the United States. See Falls v. Downie, 871 F. Supp. 100 (D. Mass. 1994) (finding habitual residence established in the United States after parents decided to relocate and mother later decided not to join the child and father in the United States). After this shared mutual intent to relocate to the United States was formed, Griffiths could  not unilaterally change M.W.’s place of habitual residence simply because she changed her mind about moving to the U.S. Mozes, 239 F.3d at 1077. As such, the record evidence that Griffiths later vacillated about relocating to the U.S. and that the parties maintained a complicated and rocky relationship since that shared mutual intent was formed did not disturb the Court’s finding. Moreover, while Griffiths testified that she never intended to move permanently to the United States, the Court found that testimony not credible nor supported by the record.

          As to acclimatization, while this factor held less weight given the young age of the child, it supported a finding of habitual residence in the United States. M.W. had resided in Australia for six months, Mexico for two months, and the United States for nineteen months as of the filing of the Petition. Respondents Weeks and Espinosa Weeks, as well as Victor Espinosa Weeks, testified that M.W. was well adjusted in the United States and regularly attended age-appropriate activities with family and through the local church. She was cared for in Florida by Espinosa Weeks while Weeks attended law school in New York, was developing normally for her age, attended required doctor’s appointments, and by all accounts was thriving in Florida. This testimony regarding her acclimation in the United States was uncontroverted. There was little testimony to support M.W.’s acclimation in any other country besides the United States.