In Bre
v Aguirre, 2023 WL 8371981( S.D. Florida, 2023) the District Court denied the mothers Petition to have her minor child,
I.A.B., returned to her custody in Argentina.
In opposition to the petition, the Respondent argued in his motion
to dismiss and at the hearing that I.A.B. was born in the United States and
that a Parenting Plan established by the Eleventh Judicial Circuit in and for
Miami-Dade County established by mutual agreement that I.A.B.’s country of
habitual residence is the United States. Courts must consider the totality of
the circumstances in determining the habitual residence of a child for Hague
Convention purposes. Monasky v.
Taglieri,
140 S. Ct. 719, 729 (2020). “As best I can
determine, the concept of “habitual residence” [...] means the place where the
child in fact has been living for an extended period—unless that place was
never regarded as more than temporary or there is another place to which the
child has a strong attachment.” Id. at 734-35 (2020) (Alito, J., concurring). I.A.B. was born in Miami and lived here
with both parents until 2017, when the Petitioner moved to Argentina due to
immigration issues, bringing the child with her. The child did not hold
Argentine citizenship. In June 2021, the parties signed a Parenting Agreement,
under the terms of which it was agreed the child would live with the Petitioner
in Argentina until she was ten years old (January 2025), at which time she
would return to Miami, and the Respondent was allowed time sharing in Miami
during the extended summer and winter school breaks until that time. In
December 2022, the Petitioner allowed the Respondent to exercise his summer
visitation and allowed the paternal grandfather to take the child to Miami with
the understanding the child would be returned to Argentina in March 2023. The
grandfather returned to Argentina in March 2023 without the child, who remains
living in Miami with the Respondent. The Respondent told the Petitioner he did
not intend to return the child.
The Petitioner claimed that she was defrauded into signing the
Parenting Plan because she did not understand the contents of the document when
she signed it, and that the United States therefore should not be regarded as
the child’s habitual residence. The Court held that a person seeking to disavow
a contract based upon their claim of not being proficient in English must
establish more than lack of English proficiency to render the contract
unenforceable, such as fraud on the part of the other party. “[I]nability to
read in English will not preclude a person from entering into a binding
contract that he signs without reading.” “Unless one can show facts and
circumstances to demonstrate that he was prevented from reading the contract,
or that he was induced by statements of the other party to refrain from reading
the contract, it is binding. No party to a written contract in this state can
defend against its enforcement on the sole ground that he signed it without
reading it.” Federal courts have similarly found that inability to understand
English does not invalidate a contract.. The
Petitioner testified that she believed that the documents merely established
the Respondent’s paternity of the child and set forth the legal name of the
child agreed to by the parties. However, this subjective belief was
insufficient to establish that the Petitioner’s agreement was fraudulently
obtained. The Court therefore concluded that I.A.B.’s habitual residence was
the United States based upon the totality of the circumstances, including her
parents’ shared intentions as reflected in the Parenting Plan and Final
Judgment of Paternity and the child’s practical circumstances. Because the
child was currently present in the country of habitual residence, relief under
the Hague Convention was not available. See Hague Convention Preamble,
T.I.A.S. No. 11,670, at 4, 1343 U.N.T.S. 89, at 98.
