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Sunday, May 22, 2022

Dumitrascu, on behalf of A.M.B.D v. Dumitrascu, Not Reported in Fed. Rptr., 2022 WL 1529624 (Tenth Circuit, 2022)

 Dumitrascu, on behalf of A.M.B.D v. Dumitrascu, Not Reported in Fed. Rptr., 2022 WL 1529624 (Tenth Circuit, 2022) the district court found that Alin wrongfully retained A.M.B.D. in the United States and ordered A.M.B.D.’s return to Romania. On appeal challenge the district court’s threshold finding that A.M.B.D. habitually resided in Romania. The Tenth Circuit affirmed.

Alin and Violeta were both Romanian by birth and have family in Romania. Alin moved to the United States in 2006 and became a United States citizen. Violeta was  a Romanian citizen. 
The two met online in 2007 and married in Romania in 2015. They then moved to Colorado in 2016, and Alin successfully sponsored Violeta’s application for a green card. Violeta later became pregnant with A.M.B.D. The couple decided to travel to Romania for her birth in part to avoid hospital fees in the United States. They traveled to Romania in early August 2019, where they stayed with Alin’s father; though at that point they “intended to return to the United States at some point to raise the child.” Violeta gave birth to A.M.B.D. on September 4, 2019, and the couple lived in Romania for about ten months after A.M.B.D.’s birth. During that time, their “plan for the future diverged.”. “When A.M.B.D. was five weeks old, [Violeta] got a job [in Romania] because someone had to earn money and [Alin] did not want to work in Romania.” . Violeta’s green card also expired, the United States denied her application for an extension, and she developed reservations about returning to the United States. “She therefore made plans for the family to live in Romania.” As part of these plans, she applied for “the First House program, a Romanian program to assist young families in buying their first home.” Alin intended for the family to return to the United States. He got Violeta’s permission to travel to the United States with A.M.B.D. so he could obtain a social security card for the child. “He also planned to work on getting [Violeta] a green card, to bring her over to the United States, and to earn money through a job.” To facilitate this trip, Violeta signed an affidavit that stated: “I agree and consent[ ] that [A.M.B.D. can] travel to the United States of America, starting with July 6, 2020, until December 31, 2020, together with Alin Dumitrascu, as parent of minor.” Alin took A.M.B.D. to the United States in July 2020. But he did not help Violeta apply for a green card. And he did not return A.M.B.D. to Romania by the December 31 deadline to do so. Violeta then filed for divorce in Romania and launched these proceedings seeking A.M.B.D.’s return to Romania.
The district court found that Romania was A.M.B.D.’s habitual residence when Alin retained her in the United States. It therefore evaluated whether Alin’s retention of A.M.B.D. breached Violeta’s custody rights under Romanian law, concluded that his retention did, and ordered A.M.B.D.’s return to Romania pending custody proceedings there. Alin challenges the district court’s finding that A.M.B.D. habitually resided in Romania.
The Tenth  Circuit agreed with Violeta that the district court found A.M.B.D. habitually resided in Romania on the date Alin retained her in the United States without Violeta’s permission. And the court ultimately found “that A.M.B.D.’s habitual residence at the time of her removal to the United States on July 8, 2020, and subsequent retention in the United States, was Romania.” 
Alin contended the district court clearly erred in finding that A.M.B.D. habitually resided in Romania. The Court observed that the Hague Convention does not define the term ‘habitual residence.’ ” Monasky, 140 S. Ct. at 726. “A child ‘resides’ where she lives. Her residence in a particular country can be deemed ‘habitual,’ however, only when her residence there is more than transitory.” “The place where a child is at home, at the time of removal or retention, ranks as the child’s habitual residence.”. “Because locating a child’s home is a fact-driven inquiry, courts must be sensitive to the unique circumstances of the case and informed by common sense.” “There are no categorical requirements for establishing a child’s habitual residence,” and “[n]o single fact ... is dispositive across all cases,” Instead, “[t]he inquiry into a child’s habitual residence ... cannot be reduced to a predetermined formula and necessarily varies with the circumstances of each case.” Id. A petitioning parent bears the burden of proving a child’s habitual residence in the applicable country by a preponderance of the evidence. See 22 U.S.C. § 9003(e)(1)(A); West v. Dobrev, 735 F.3d 921, 929 (10th Cir. 2013). 
Alin was correct that “ ‘the intentions and circumstances of caregiving parents are relevant considerations.’ ” (quoting Monasky, 140 S. Ct. at 727). “But a court must consider all the facts and circumstances concerning the couple’s intended stay in the country.” Watts, 935 F.3d at 1145. Here, Alin and Violeta shared an intent to return to the United States “as a family.” They “never had a shared, mutual intent to live apart.” And when Violeta’s green card expired in November 2019, the family could no longer live together in the United States. The district court weighed the impact of this changed circumstance on the couple’s prior intent, alongside other facts, including the couple’s joint effort to secure an affidavit time-limiting A.M.B.D.’s travel away from the only country she had ever lived in, and found that “the parties’ pre-birth intent [was] outweighed by their intent and conduct thereafter.” It declined Alin’s invitation to re-weigh the evidence on appeal. See United States v. Gilgert, 314 F.3d 506, 515–16 (10th Cir. 2002) (“On clear error review, our role is not to re-weigh the evidence ....”).
Alin argued that “[o]utside of [Violeta’s] unilateral actions, the district court had little to rely on to support its conclusion that A.M.B.D.’s habitual residence was Romania.” The Court disagreed. The evidence showed A.M.B.D. was born in Romania, lived there for ten months—accumulating various possessions and building relationships with extended family in Romania during that time—and only left Romania via a travel document that limited her legal absence to less than six months. Also, both of her parents could legally live in Romania, whereas only her father could legally live in the United States. These facts support a finding that A.M.B.D. was “at home,” Monasky, 140 S. Ct. at 726, in Romania. Cf. United States v. Chavez, 734 F.3d 1247, 1250 (10th Cir. 2013) 
Alin highlighted evidence that could support a finding A.M.B.D. was habitually resident in the United States. But this evidence did not lead  to “a definite and firm conviction that the district court erred,” Chavez, 734 F.3d at 1250. Starting with A.M.B.D.’s citizenship, the Hague Convention’s writers “deliberately chose ‘habitual residence’ for its factual character, making it the foundation for the Convention’s return remedy in lieu of formal legal concepts like domicile and nationality.” Monasky, 140 S. Ct. at 727. And Alin did not cite any evidence that A.M.B.D.’s legal citizenship bore any relation to where she was “at home,” 
Alin argued the district court erred by failing to discuss evidence pertaining to A.M.B.D.’s acclimation in the United States during the period between July 8 and December 31, 2020, in its section addressing A.M.B.D.’s habitual residence. But as a general rule, “the district court is not required to make findings as to every detail. Findings are sufficient if they indicate the factual basis for the court’s general conclusion as to ultimate facts and are broad enough to cover all material issues.” Hjelle v. Mid-State Consultants, Inc., 394 F.3d 873, 880 (10th Cir. 2005) And in this case, the district court’s order made it clear the court was aware of and considered evidence of A.M.B.D.’s acclimation in the United States after July 8, 2020, by discussing some of that evidence in a later section of its order. 

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

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