[Brazil][Habitual Residence] [Petition granted]
In Argueta v Argueta-Ugalde, 2023 WL 1466820, (E.D. Michigan, 2023) Petitioner alleged that on November 6, 2022, Respondent wrongfully retained their shared minor child M.A. (“M.A.”) and her two children from a previous marriage in the United States of America.1 The Court found that Petitioner has demonstrated a prime facie case for wrongful retention under the Hague Convention, and therefore grants the Petition.
Petitioner Williane Rodrigues Dos Santos Argueta is a Brazilian citizen. Respondent Omar Argueta-Ugalde is a Mexican citizen. Respondent began working and living in Brazil on a temporary work visa in 2015. The parties began a romantic relationship and were married on August 17, 2018. (In August of 2018, M.A. was born. She has two older siblings on her mother’s side that were born in Brazil. The parties purchased real property in Brazil in either 2018 or 2019, which was used as a family home until at least June 2019. On June 4, 2019, the parties traveled with all three children to China for Respondent’s work assignment. Petitioner and the children left due to the Covid-19 pandemic and associated restrictions in China. Petitioner and the children remained in Brazil until September 20, 2020. On September 20, 2020, Petitioner and the children returned to China. The parties remained in China until June 20, 2021, after which Petitioner and the children returned to Brazil. On November 28, 2021, the parties and children reunited in Mexico. On January 24, 2022, Petitioner returned to Brazil, while all three children remained in Mexico with. Petitioner returned to Mexico the first week of May 2022, after which she again traveled alone to Argentina from June 8, 2022, to July 2, 2022. Petitioner arrived back in Mexico on July 2, 2022, where the parties remained together as a family until July 31, 2022. On July 31, 2022, the parties and the children departed for the United States. On August 24, 2022, Petitioner flew to Brazil alone and returned to Michigan on September 16, 2022. Nevertheless, on November 3, 2022, Petitioner asserts she was served with divorce papers that Respondent filed in Michigan in which he was seeking sole legal and physical custody of M.A. Petitioner maintains this was a shock to her, as they had agreed to remain in Michigan as a family until January 2023, with divorce to be reconvened at a later time for the benefit of Respondent’s image and M.A. On November 6, 2022, Petitioner returned to Brazil because she felt she had no support in Michigan, especially given the fact she does not speak English. on November 17, 2022, Petitioner requested by text message that the children be sent to Brazil by November 20, 2022. The children were not returned by this date, but arrangements were made for the elder two children to be returned. M.A. still resides in the United States with Respondent. Accordingly, on November 18, 2022, Petitioner initiated the Hague process in Brazil. Thereafter, on November 22, 2022, Petitioner filed the instant Petition, and Respondent was served on December 1, 2022.
The court observed that a child’s habitual residence depends on the totality of the circumstances specific to each case, not on categorical requirements such as an actual agreement between the two parents. See Monasky,140 S. Ct. at 723. Wherever the child is at home at the time of removal or retention, is the child’s habitual residence. A child’s residence in another country only becomes “habitual” when it is more than transitory, and there is some degree of integration in a social and family environment “Accordingly, the Sixth Circuit instructs courts to focus on the child, rather than the parents, and examine past experience, not future intentions. Only a change in geography and the passage of time may establish a new habitual residence.” Tsimhoni v. Eibschitz-Tsimhoni, No. 10-10308, 2010 WL 11541986, at *5 (E.D. Mich. Mar. 26, 2010) (quoting Friedrich v. Friedrich (Friedrich I), 983 F.2d 1396, 1401 (6th Cir. 1993)). Furthermore, [t]his fact-driven inquiry must be sensitive to the unique circumstances of the case and informed by common sense. For older children capable of acclimating to their surroundings, courts have long recognized, facts indicating acclimatization will be highly relevant. Because children, especially those too young or otherwise unable to acclimate, depend on their parents as caregivers, the intentions and circumstances of caregiving parents are relevant considerations. No single fact, however, is dispositive across all cases.
Monasky, 140 S. Ct. at 727.
The facts of this case were complex given how much the parties and M.A. have traveled over the course of her lifetime. To address this type of scenario, the Sixth Circuit in Robert v. Tesson employed a comparative analysis approach. 507 F.3d 981 (6th Cir. 2007). To elaborate, the Sixth Circuit compared the children’s perceptions of and experiences in both France and the United States because the parties alternated living between the two for extended periods of time. Id. As such, the Sixth Circuit found it necessary to compare the children’s connections to both nations to determine their habitual residence. The Court found the facts of this case to be more similar to the facts of Robert given how much M.A. h moved in her lifetime, and thus will apply the comparative analysis approach in determining her habitual residence. In applying this type of analysis, the Court concluded that up until M.A.’s departure to the United States from Mexico on July 31, 2022, her habitual residence was Brazil. In the midst of all of M.A.’s relocations, Brazil remained the only constant.
Monasky instructs the Court to evaluate both the child’s acclimation and shared parental intent when evaluating the habitual residence of a young child. Monasky, 140 S. Ct. at 727. Incorporating the latter into the analysis yields the same result. First, during the relevant period of M.A.’s life, the parties kept their family home in Brazil, albeit as a rental property for at least a portion of their time abroad. The parties also purchased a second home in Brazil. Further, Petitioner maintained her businesses in Brazil while abroad, which were partially funded by Respondent. This lends to the notion that the parties intended Brazil to be the family home.
The remaining question was whether or not M.A.’s habitual residence changed from Brazil to the United States when she departed from Mexico on July 31, 2022. See Robert v. Tesson, 507 F.3d 981, 997 (6th Cir. 2007). In order to properly determine the habitual residence of a child in wrongful retention cases, courts must first determine the date of the retention, and then determine if this retention was wrongful depending on the habitual residence analysis outcome.. Courts in this Circuit have applied two tests:1. The date which the child remains with the abducting parent despite the clearly communicated desire of the left-behind parent to have the child returned; or 2. When the acts of the abducting parent are so unequivocal that the left-behind parent knows or should know, that the child will not be returned. Lopez Moreno v. Zank, 456 F. Supp. 3d 904, 908 (W.D. Mich. 2020). The court found for purposes of a habitual residence analysis—the date of retention to be December 1, 2022.This makes the relevant length of M.A.’s life in the United States four months. These facts are not sufficient to overcome the overwhelming evidence suggesting Brazil remained M.A.’s habitual residence under both the acclimation and shared parental intent standard. Regarding acclimation, M.A. video called her family in Brazil at minimum three times per week. This is material for a child, especially one that has relocated so many times in her life. Be it through her repeated physical presence in Brazil or her connection with her family and community there while abroad, the Court found that per M.A.’s perception, her habitual residence wass Brazil. Regarding the shared parental intent standard, the Court finds that the parties’ last shared intent was to relocate to Brazil in January of 2023. This is again evidenced by Petitioner’s businesses—which were partially funded by Respondent—remaining operational during her time abroad. Under Article 1.634 of the Brazilian Civil Code, each parent, regardless of marital status, has the right to participate in the determination of their child’s permanent residence. Petitioner was exercising custody rights as contemplated by the Convention.
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