In Urquieta v Bowe, --- F.4th ----, 2024 WL 4630284 (United States Court of Appeals, Second Circuit, 2024) Petitioner-Appellant Maria Elena Swett Urquieta (“Swett”)1 appealed from an order of the United States District Court denying her petition for repatriation to Chile of her minor son S.B.S. from the United States, where S.B.S. was wrongfully retained by his father, Respondent-Appellee John Francis Bowe.
Swett, a Chilean actress, and Bowe, a writer based in the United States, have a son, S.B.S., who was born in Minnesota in 2012. Swett and Bowe separated shortly thereafter but shared legal custody of S.B.S, who lived in Chile with Swett. While Swett enjoyed sole physical custody, she granted travel authorizations that permitted S.B.S. to visit Bowe in New York City. On December 23, 2022, S.B.S. and Bowe traveled from Chile to New York under a travel authorization that expired on January 8, 2023. This litigation arose because Bowe refused to return S.B.S. to Chile on January 8. Instead, he wrongfully retained S.B.S., enrolled S.B.S. in a school in New York City, and sought sole custody. On February 23, 2024, Swett filed this ICARA petition seeking S.B.S.’s return. The District Court explained that Swett had made out a prima facie case of wrongful retention under the Hague Convention but that S.B.S. need not be returned to Chile because Bowe had established two affirmative defenses available under the Convention, the “well-settled” defense and the “child objection” defense.
The Court of Appeals pointed out that the Article 12 well-settled defense “permits courts to consider the interests of a child who has been in a new environment for more than a year before ordering that child to be returned to [his] country of habitual residency.” Lozano v. Alvarez, 697 F.3d 41, 52 (2d Cir. 2012). The defense is available only if over a year has passed from the wrongful removal or retention until the filing of the Hague Convention petition. The defense requires a respondent to show by a preponderance of evidence that the proceeding seeking the child’s return commenced more than one year “from the date of the wrongful ... retention” and “the child is now settled in its new environment.” Hague Convention, art. 12; 22 U.S.C. § 9003(e)(2)(B). The Court of Appeals agreed with the District Court that the petitioner can consent to an extension of time for the child’s stay, in which case the retention becomes wrongful at the end of the extension.
The Court observed that that it had not previously decided whether a petitioning parent can extend authorization for a child to remain outside the country of habitual residence after an initial instance of wrongful retention. This extension would postpone the date of wrongful retention to determine whether the well-settled defense is available. It adopted the District Court’s analysis of the defense. It held that the District Court correctly concluded that, even after an initial instance of wrongful retention, a parent may extend authorization for the child to remain outside the country of habitual residence. But it was also right to conclude that Swett did not consensually extend the authorized time and instead merely acceded to circumstances she felt she could not change after Bowe wrongfully retained S.B.S. on January 8, 2023. Swett, ––– F.Supp.3d at –––– – ––––, 2024 WL 2034713, at *31–34. Critically, the District Court found that Swett could not meaningfully consent to Bowe’s continued retention because she lacked any practical ability to control Bowe’s decisions, had already filed a police report in Chile on January 10, 2023, and did not have any firm belief that Bowe would return S.B.S at the end of the extension. The District Court thus correctly found that Bowe’s wrongful retention of S.B.S. occurred on January 8, 2023, and that the well-settled defense was available because Swett did not file her petition until more than a year after that date.
As to the remaining issues raised by Swett on appeal, the Court affirmed for substantially the reasons articulated by the District Court in its opinion and order entered on May 7, 2024.
