Darin v. Olivero-Huffman, 2012 WL 3542514 (D. Puerto Rico)[Argentina] [Habitual Residence] [Consent]

In Darin v. Olivero-Huffman, 2012 WL 3542514 (D. Puerto Rico) on February 11, 2012, Lisandro Jonathan Darin (Petitioner) filed a Verified Petition for Return of Child against Lua Cecilia Olivero-Huffman (Respondent). The parties consented to proceed before this Magistrate Judge for all proceedings, including the entry of judgment On July 17 and 20, 2012 and on August 2 and 8, 2012, the trial was held.

Lisandro Jonathan Darin, Petitioner, and Lua Cecilia Olivero-Huffman, Respondent, were the natural parents of the child, who was born in Buenos Aires, Argentina on April 20, 2008. The child was citizen of the United States of America and of the Republic of Argentina. In 2007, Respondent traveled to Argentina to study dance therapy. Respondent bought an apartment in Argentina together with her sister.

In 2007, Respondent began a relationship with Petitioner and they began to live together in Respondent's apartment located in # 3357 Sarmiento Street, 1st floor, Apt. D, Buenos Aires. During her pregnancy, Respondent traveled with Petitioner to Puerto Rico and returned to Argentina. After their child was born, they moved with the child to an apartment, which belongs to Petitioner's family and was located in Villa Luro neighborhood. The parties traveled with the child to Puerto Rico on December 11, 2008, and returned to Argentina on February 9, 2009. While in Puerto Rico, they stayed at Respondent's mother's house located in # 514 Sagrado Corazon Street, San Juan.

The parties traveled with the child to Puerto Rico on March 24, 2009 for Respondent to take advantage of a work opportunity, and they returned to Argentina on August 7, 2009. While in Puerto Rico, they stayed at Respondent's mother's house. Respondent traveled alone with the child to Puerto Rico on January 19, 2010 under the terms agreed to and set forth in a Power of Attorney signed by the parties in Argentina, pursuant to which the child was authorized to travel to any country in the world accompanied by either of his parents, leaving the country and coming back when he/she considers it convenient, until the child becomes an adult. Respondent and the child returned to Argentina on April 2, 2010. While in Puerto Rico, they stayed at Respondent's mother's house. Petitioner revoked the Power of Attorney which authorized either of child's parents to travel with the minor. In mid-2010, the parties separated, and Respondent moved back with the child to her apartment.

The child began attending day care facility "Dulce de Leche", located near Respondent's apartment. On November 9, 2010, Respondent traveled to Puerto Rico alone and left the child with Petitioner under the agreement that the child would return under the care of Respondent upon her return to Argentina. The parties again moved in together and attempted a reconciliation. In late 2010, Respondent and her sister sold their apartment in Argentina. On January 31, 2011, the parties traveled to Orlando for vacation, and then traveled with the child to Puerto Rico on February 4, 2011. Upon arriving in Puerto Rico the parties and their child again stayed in Respondent's mother house. While in Puerto Rico in the first half of 2011, Respondent told Petitioner about her intentions to reside permanently in Puerto Rico with the child. Petitioner left Puerto Rico on July, 2011. Prior to Petitioner's departure to Argentina, Petitioner and Respondent subscribed and signed an affidavit on July 7, 2011, before Notary Public Jose Guillermo Perez Ortiz. Since February 4, 2011, Respondent and child had been living at # 514 Sagrado Corazon Street, San Juan, Puerto Rico. Since Petitioner's departure to Argentina he had continuous and frequent communication with his son by the use of telephone and internet. On December 19, 2011, Petitioner filed an application in Argentina to request remedies under the Hague Convention. On February 21, 2012, Petitioner filed a Verified Petition for Return of Child in the Federal Court for the District of Puerto Rico. During the 2011-2012 academic year, the parties' child had been attending school at "Escuela del Pueblo Trabajador" in Rio Piedras, Puerto Rico, and was enrolled for the 2012-2013 school year at the same school.

The Court pointed out that Respondent recognized in her answer to the petition that Petitioner was actually exercising custody rights when the alleged wrongful retention or removal occurred. The date on which the removal or retention took place was not an issue. It was undisputed Petitioner left Puerto Rico to Argentina on July 2011 and left his son under the care and supervision of his mother after signing an affidavit, as explained in detail herein below.

The Court observed that a majority of the circuits approach the question of habitual residence beginning "with the parents' shared intent or settled purpose regarding the child's residence." However, the Circuit courts are divided on the extent that parental intent should factor into the acquisition of a habitual residence. The First, Second, Fourth and Seventh Circuits place the primary focus upon parental intent, following the Ninth Circuit's decision in Mozes v. Mozes, 239 F.3d at 1067. The focus is on the parents' last shared intent in determining habitual residence. Under the Mozes' approach, the first inquiry when deciding whether a new habitual residence has been acquired is: did the parents demonstrate a shared intention to abandon the former habitual residence. This intent could develop during the course of the stay and need not be settled at the time of departure. The second inquiry under the Mozes' rationale is whether there has been a change in geography for an "appreciable period of time" that is "sufficient for acclimatization." Following Mozes, cases raising issues regarding parental intent fall into three general categories. The first category deals with cases where there was a mutual settled intent to change habitual residence. In this situation, courts are likely to find that the child's residence has changed. The second category consists of those cases where both parents intend the relocation to be temporary in which courts will not find a change in habitual residence if one parent decides to resettle in the temporary location. The third category under Mozes entails situations where parents agree to allow a relocation, but for an ambiguous or uncertain period of time. In these cases, it seems that the result centers on whether the stay was intended to be indefinite or whether there was a conflict in the parental intent. Where the intent points to an indefinite stay, courts have tended to find an abandonment of the prior habitual residence. Mozes further finds that parental intent cannot effect a change in the habitual residence "by wishful thinking alone," but that it must be accompanied by an actual "change in geography" plus an "appreciable period of time." Mozes recognizes that despite a lack of uniform parental intent, a relocation to a different country for a longer period of time may result in such a degree of acclimatization that the child acquires a new habitual residence.

According to the testimony of Petitioner, he traveled with Respondent and the child to Puerto Rico in February 2011 for vacation purposes with the intent to return to Argentina. While in Puerto Rico in the first half of 2011, Respondent told Petitioner about her intentions to reside permanently in Puerto Rico with the child. Petitioner averred this decision was against their original intent which was to return to Argentina by mid March 2011. Respondent testified that several times during her relationship with Petitioner and, since the beginning of the relationship she told him and his family, about her desire to live permanently in Puerto Rico with the child. At times, Petitioner was in agreement with Respondent's wish. When the couple traveled to Puerto Rico in February 2011, Petitioner was aware of Respondent's prior attempts to reside in Puerto Rico with the child and her intentions to do so. Respondent testified that during the stay in 2011, she delayed her return to Argentina because she had a car accident and was waiting for her sister to come to Puerto Rico to spend time with her and develop a business for their mother. During this period, Respondent found two part time jobs in Puerto Rico, bought a car and the child was sharing with his maternal family where he lived with Petitioner and Respondent, including grandparents, a cousin about his age, among other family members. Petitioner took care of the child at the house while Respondent worked. Petitioner made some attempts to start a business in Puerto Rico and he contacted a friend in Texas to try to start a business of selling used cars in Puerto Rico with no positive results. Petitioner also contemplated opening a restaurant in Puerto Rico. By mid March 2011, Respondent told Petitioner of her intentions to reside permanently in Puerto Rico with the child. Knowing already by mid 2011 that Respondent had intentions of residing in Puerto Rico permanently with the child, Petitioner left Puerto Rico to Argentina on July, 2011 after subscribing and signing with Respondent an affidavit on July 7, 2011, before a Notary Public. Petitioner testified he had to leave Puerto Rico because the family business in Argentina was falling apart and his visa was about to expire.

The affidavit which was signed in Puerto Rico by Petitioner and Respondent before a Notary Public, in its pertinent parts reads as follows: WE, LUA CECILIA OLIVERO-HUFFMAN, of legal age, single, employee and a resident of San Juan, Puerto Rico, and LISANDRO JONATHAN Darin, of legal age, single, property owner, and a resident of Buenos Aires, Argentina, under the most solemn oath do hereby declare: 3. Lisandro Jonathan Darin, for reasons beyond his will, must leave the country. 4. The son of the parties, Lucio Alejandro Angel Darin-Olivero, is not being abandoned by his father since he will be in charge of all of the events relative of the minor, who will be under the care and supervision of his mother, Lua Cecilia Olivero-Huffman, with the absence of his father Lisandro Jonathan Darin. 5. For the best well-being of the minor, Lisandro Jonathan Darin authorizes Lua Cecilia Olivero-Huffman to make all the necessary arrangements on behalf of their son in the areas of education, health, and in everything that may be necessary for the best interests and well-being of the minor. 6. The son of the parties, Lucio Alejandro Darin-Olivero, is authorized to travel with either of his parents in the absence of the other to any country in the world, returning to the same when deemed convenient, until he reaches legal age.

The Court found that the clear language of the affidavit showed a different residence at the time of signing the document for Petitioner and Respondent. Respondent identified herself as resident of San Juan, Puerto Rico and Respondent as resident of Buenos Aires, Argentina. The affidavit demonstrated that, before leaving to Argentina on July 2011, Petitioner voluntarily left the child in Puerto Rico under the care and supervision of his mother, Lua Cecilia Olivero-Huffman, with the absence of his father Lisandro Jonathan Darin. Petitioner authorized Respondent, for the best well-being of the child, "to make all the necessary arrangements on behalf of their son in the areas of education, health, and in everything that may be necessary for the best interests and well-being of the minor."Petitioner also agreed for the child "to travel with either of his parents in the absence of the other to any country in the world, returning to the same when deemed convenient, until he reaches legal age."

Respondent testified that their agreement and intent in signing the affidavit was for her to stay in Puerto Rico with the child and Petitioner would travel to Argentina for a period of time and would come back to Puerto Rico. After Petitioner left on July 2011 to Argentina, he did not make any child support payments to Respondent for the benefit of the child. Thus, Petitioner was exercising his joint custody rights with Respondent when, prior to his departure from Puerto Rico to Argentina, he voluntarily signed with Respondent an uncontested agreement before a Notary Public, in which Petitioner expressly consented to the child staying in Puerto Rico for an indefinite period of time, under the care and supervision of Respondent. Petitioner admitted the terms of the affidavit were for an indefinite amount of time.

The affidavit clearly showed the parents' last shared intent in determining habitual residence. It was hard to think of a more formal acquiescence or alternatively a waiver of Hague Convention rights than voluntarily entering into an agreement signed before a Notary Public as the one signed in this case. Based on the testimonies of Petitioner and Respondent, their intention when they left Argentina in January 31, 2011 to travel to Orlando and Puerto Rico on vacation was to return to Argentina, as they had done on the prior occasions they had traveled to Puerto Rico. However, that intention changed during their stay in Puerto Rico and by the signing of the affidavit. As the Mozes' court noted, one need not have a settled intention at the moment of departure; the intention may coalesce during the course of a stay abroad originally intended to be temporary. Petitioner and Respondent unequivocally agreed on July 2011 that their child would remain in Puerto Rico for an indefinite, extended period of time for a settled purpose as described in the affidavit. Thus, at the time Respondent allegedly removed or retained the child in Puerto Rico, Petitioner  had acquiesced/consented and, thus, the settled purpose was still in force. The Court concluded (under the Mozes' approach) that, a new habitual residence in Puerto Rico was acquired based on the parents' shared intention in signing the affidavit in which it was agreed the child was going to remain under the care and supervision of Respondent in Puerto Rico for an indefinite period of time. Moreover, there was a change in geography for an "appreciable period of time" that is "sufficient for acclimatization."

The Court concluded that Petitioner has failed to meet his burden and the alleged removal or retention of the child was not wrongful under the meaning of the Hague Convention. Because the parties' shared intent, as evidenced by the affidavit subscribed by both, was for the child to remain in Puerto Rico for an indefinite period of time under the care and supervision of Respondent, the court found the child was a habitual resident of Puerto Rico at the time of the claimed removal or retention. Because the child was habitually a resident in Puerto Rico, Respondent's alleged removal or retention of the child in Puerto Rico was not wrongful and the court did not need to engage in any further analysis. As such, the Petition was denied.

Chafin v. Chafin, 2012 WL 1636904 (2012) [Petition for Certiorari Granted By United States Supreme Court [Mootness of Appeal]

In Chafin v. Chafin, 2012 WL 1636904 (2012), decided on August 13, 2012 the United States Supreme Court, granted Petitioner, Jeffrey Lee Chafin’s, petition for a Writ of Certiorari to review a final order of the United States Court of Appeals for the Eleventh Circuit (entered February 6, 2012) holding that the underlying District Court's order was to be vacated and the action moot. Under the International Child Abduction Remedies Act 42 U.S.C. §§ 11601-11610 (2000) and the Hague Convention on the Civil Aspects of International Child Abduction a parent may file a petition for return of their minor child/custodian to the child's country of habitual residence if it appears that the child has been wrongfully abducted. Once an Order has issued from the District Court returning the child to the petitioning custodian and an appeal has been filed by the respondent the Circuits are spilt as to whether the return of the child to the country of habitual residence renders the appeal moot. The Eleventh Circuit, in Bekier v. Bekier, 248 F.3d 1051 (2001), held that such an appeal is clearly moot since the relief sought by petitioner has been granted and the Court had “no authority ‘to give opinions on moot questions or abstract propositions … which cannot affect the matter in issue in the case before [the Court]’ ” Bekier at 1054. The Court provided that no actual affirmative relief could be provided to the appellant. However, the Fourth Circuit, in Fawcett v. McRoberts, 326 F.3d 491 (2003), has held that “[c]ompliance with a trial court's order does not moot an appeal if it remains possible to undo the effects of compliance or if the order will have a continuing impact on future action.” The Sixth Circuit has since adopted the position of the Eleventh Circuit while the Third, Eighth and Tenth Circuits have adopted the reasoning of the Fourth Circuit with regard to the issue of mootness of an appeal.

Mota v. Castillo, --- F.3d ----, 2012 WL 3330176 (C.A.2 (N.Y.) [Mexico] [Habitual Residence]

        In Mota v. Castillo, --- F.3d ----, 2012 WL 3330176 (C.A.2 (N.Y.) Asuncion Mota and Rivera Castillo married in Puebla, Mexico in March 2006. Later that year, in September, Asuncion Mota gave birth to their daughter, Elena. For the first six months of her life, Elena lived in Puebla with both of her parents. Then, in March 2007, when Elena was six months old, Rivera Castillo left Puebla and entered  the United States illegally. He traveled to Queens, New York, where he obtained full-time employment, and began sending financial support to his wife and daughter.  Meanwhile, in Mexico, Asuncion Mota assumed sole responsibility for Elena's day-to- day care, and she and Rivera Castillo maintained regular communication via telephone.  In the spring of 2010, Asuncion Mota and Rivera Castillo decided to reunite their family: mother and child would move to New York, where the three would again live together. Toward that end, mother and father agreed to the following arrangements.  Asuncion Mota, her uncle, and Elena would travel from Puebla to Nogales, a Mexican city close to the Arizona border. There, using funds provided by Rivera Castillo, Mota would hire a person or persons to smuggle Elena across the border. After Elena had entered the United States, Asuncion Mota and her uncle would cross the border themselves, and travel with Elena to New York.  The plan was successful only in part. Asuncion Mota was able to arrange for smugglers to take Elena across the border, but the repeated attempts of Asuncion Mota and her uncle to follow Elena into the United States were blocked by American border guards, and the two were returned in each instance to Mexico. Meanwhile, the  smugglers had transported Elena on her own to New York, where she began living with her father.
        After living for some months more in a house in Nogales, Asuncion Mota procured for herself and her uncle certain false identification, which they used in a renewed attempt to cross the border. This attempt, too, failed, but with more disastrous consequences: the pair were arrested and prosecuted for use of false identification. Each pleaded guilty and served a seventy-five-day prison term in the United States before being deported to Mexico.    By the time Asuncion Mota was deported after her release from prison, it had  become "apparent" that "the plan for the mother to enter the United States and travel to New York had been, and would continue to be, frustrated."  Rivera Castillo had begun living with another woman, and it became evident that Rivera Castillo would no longer send financial support to  Asuncion Mota. In response to Asuncion Mota's repeated demands that Elena be returned to her in Mexico, Rivera Castillo declared that he would keep Elena with him in New York.

 In October 2010, Asuncion Mota contacted the Mexican government and sought to obtain relief through diplomatic channels. Within two weeks of being contacted by the State Department, Rivera Castillo instituted custody proceedings in New York Family Court, seeking sole custody of Elena. Having obtained no relief through official diplomatic channels, in November 2011 Asuncion Mota filed a petition in federal district court seeking an order requiring  Rivera Castillo to return Elena to her in Mexico. After trial,  the court issued a decision concluding that Elena's country of "habitual residence" under the Convention was Mexico; that Rivera Castillo had "wrongfully retained" Elena in contravention of Asuncion Mota's custody rights under Mexican law; and that the Hague Convention and ICARA therefore required that Elena be returned to Mexico forthwith.  A . A.M. v. J.L.R.C., 840 F.Supp.2d 624 (E.D.N.Y.2012).

 The Second Circuit affirmed. It pointed out that in cases arising under the Hague Convention and ICARA, it reviews a district court's factual determinations for clear error, and reviews de novo a district court's interpretation of the Convention and its application of the Convention to the facts.

 The Second Circuit observed that the Convention places two substantive provisions at the core of any petition seeking relief. A petitioner must demonstrate: (a) the child in question was "habitually resident" in a Contracting State before the child's removal to or retention in a different state, and (b) removal or retention of the child was "wrongful." A preponderance of the  evidence must support a petitioner's showing. In the absence of any guidance from the Convention or ICARA regarding the crucial determination of a child's state of "habitual residence," the  Court in Gitter adopted the following approach: “ First, the court should inquire into the shared intent of those entitled to fix  the child's residence (usually the parents) at the latest time that their intent  was shared. In making this determination the court should look, as always in  determining intent, at actions as well as declarations. Normally the shared  intent of the parents should control the habitual residence of the child. Second, the court should inquire whether the evidence unequivocally points to  the  conclusion that the child has acclimatized to the new location and thus has  acquired a new habitual residence, notwithstanding any conflict with the  parents' latest shared  intent.” Gitter, 396 F.3d at 134.

      Although the parties' intent presented a factual determination that it reviewed for clear error, the determination of "habitual residence" under the Convention is a legal precept that it reviews de novo.

          The Court stated that it primary consideration in determining a child's place of habitual residence is the shared intention of the child's parents "at the latest time that their intent was shared." "[T]his is a question of fact in which the findings of the district court are entitled to deference, and we consequently review those findings for clear error."  Under the deferential "clear error" standard, "[w]e will not upset a factual finding unless we are left with the definite and firm conviction that a mistake has been committed."

            For the first three and one-half years of her life, Elena's habitual residence was in Mexico: until she was brought to the United States in 2010, Elena had lived only in Mexico, apparently with the intention of both parents that their daughter would live in Mexico indefinitely. No argument had been made to the contrary. 

           According to Rivera Castillo, however, as of April 2010 "it was the parties' settled intention" that Elena "move ... to the United States."  This new intention, he argued, "negates the conclusion that Mexico continued to be her habitual residence." Rivera Castillo called "clear error" the district court's finding that the parents' agreement that Elena would move to New York was conditioned upon Elena joining a household that included both her father and her mother. In support, Rivera Castillo emphasized that only he testified as to the specifics of the agreement to move the family to the United States, and that his testimony did not suggest that Elena's habitual residence in America was contingent  upon Asuncion Mota's success in entering the country. Thus, when asked on cross-examination whether Asuncion Mota had consented to Rivera Castillo keeping Elena in  the United States, even if Asuncion Mota did not join them, Rivera Castillo answered,  "We never talked about there being any kind of condition." In response to the district court's query whether Rivera Castillo had "ever discuss[ed] with [Asuncion Mota] what would happen if the child came over and she did not," Rivera Castillo  answered, "We never talked about that."
            Rivera Castillo also posited on appeal  that Asuncion Mota offered "no evidence that her consent to Elena's move to the United States was conditioned on her own ability to achieve entry into the United States." He pointed out that the district court rejected as incredible Asuncion Mota's account of the  planned border crossing, and argued that there was no basis on which the district court could reasonably find that a condition attached to the plan for Elena to be brought to New York.

          The Second Circuit was not persuaded with this argument. Notwithstanding Rivera Castillo's assertions and the district  court's rejection of the particulars of Asuncion Mota's account of Elena's border  crossing, the record evidence sustained the district court's factual finding as to the  parties' latest shared intention.   Asuncion Mota was Elena's primary caretaker for the first three and one-half years of  her daughter's life, and, as the district court found, Elena "was raised in a loving, supportive home in Mexico." A.A.M., 840 F.Supp.2d at 638. Asuncion Mota proved  herself a devoted mother and was persistent in her efforts to retrieve Elena after the  plan fell through. After her multiple failed attempts to enter the United States, and  having served a seventy-five-day term of incarceration, Asuncion Mota demanded that Rivera Castillo return Elena to Mexico. She contacted Mexican authorities to obtain help in recovering her child. She instituted this lawsuit, and  continued to prosecute it  from Mexico in hopes of reuniting with Elena. During the bench trial, Elena was put on the phone so that she could listen to and speak with her mother. As the district court  observed, Elena "was obviously delighted to hear her mother's voice," and "[i]t was clear that a warm relationship continued to exist between the two."   The impression of Asuncion Mota that emerged from the record was that of a
committed parent who had sought to keep her child close to her. The record was devoid of any suggestion that Asuncion Mota intended permanently to abandon Elena.  Asuncion Mota testified that she never intended that Elena would live permanently in the United States, and that she had only helped smuggle Elena across the Arizona border to allow her father to visit with her for a few hours. Although the district court rejected the particulars of this account as not credible, it  permissibly relied on the core of Asuncion Mota's testimony, to the effect that she  always intended for Elena to be by her side. The district court thus reasonably inferred  from Asuncion Mota's actions, the proffered testimony, and personal observations that it was more likely than not that Asuncion Mota intended for Elena to live in the United States only if she herself could join the household and continue to raise her child. On  review, the Court was not  "left with the definite and firm conviction" that the district court was mistaken.

          The Second Circuit held that Asuncion Mota's intention that Elena live in the United States only if she, as mother, were able to join Elena there was dispositive of the determination of Elena's habitual residence. If Rivera Castillo shared this conditional intention with his wife, Elena's habitual residence would lie in Mexico, because the condition was not satisfied. Were Asuncion Mota unable to join her daughter in America, Elena's stay would be  temporary, and the daughter would rejoin her mother in Mexico, her habitual residence. And if (as he said) Rivera Castillo did not share his wife's understanding, Elena's  habitual residence would still lie in Mexico: if the parents did not agree that Elena would live indefinitely in America regardless of her mother's presence, it could not be said the parents "shared an intent" in April 2010 that America would be Elena's state of habitual residence. Thus, the "latest time" (in Gitter's phrase) in which Asuncion Mota and Rivera Castillo shared an intent regarding Elena's habitual residence would have occurred earlier, before they decided to have Elena and her mother join Rivera Castillo in New York, and when both parents intended that Elena would live indefinitely in Mexico.

         The Court observed that although the shared intentions of Elena's parents strongly favored a conclusion that Mexico was Elena's state of habitual residence for Convention and ICARA purposes, Gitter advises that the Court must also consider whether "evidence points unequivocally to the conclusion that [Elena] has become acclimatized to [her] new surroundings and that  [her] habitual residence has consequently shifted" to the United States. In analyzing this factor, courts should be "slow to infer" that a child's acclimatization "trumps the parents' shared intent." Therefore, only in  "relatively rare circumstances" in which a child's degree of acclimatization is "so  complete that serious harm ... can be expected to result from compelling his [or her] return to the family's intended residence" might the Court  conclude that the child's habitual residence has shifted to his or her new location.    The evidence in no way suggested that returning Elena to Mexico would subject her to serious harm. Elena spent the first three and one-half years of her life in a "loving, supportive home in Mexico, and a "warm relationship continue[s] to exist between" her and her mother. The district court expressly found that Elena "faces no risk of harm, physical or  psychological, upon her return" to Mexico. 
       The Court recognized that Elena  lived for the last two years in New York. But this duration of time was not nearly so great that it could presume that returning her to Mexico would expose her to the "severe harm" one associates with a child's
"deprivation of [her] acclimatized life." This was particularly so given the evidence of the loving home with her mother that awaited Elena in her native country. The Court noted that her uncertain immigration status, as well as the undocumented status of her father, placed an additional obstacle on the path to determining that a supervening acclimatization had occurred.

       It concluded that the evidence adduced before the district  court was sufficient to support the district court's finding that when last they shared an intent about Elena's residence, Elena's parents intended that she live in Mexico, a factor it assigned controlling weight in fixing the state of the child's habitual residence. The evidence did not point unequivocally to the conclusion that Elena had become acclimatized to her new surroundings and that her habitual residence had shifted to the United States as a consequence. Because Elena was a habitual resident of Mexico at the time Rivera Castillo retained Elena in the United States, the first prong of Gitter was satisfied.

          Having found that Mexico was the country of Elena's "habitual residence," the Court found that as a matter of law Rivera Castillo's removal or retention of Elena "was in breach of [Asuncion Mota's] custody rights under the law of the State of habitual residence," and that Asuncion Mota was exercising those rights at the time of the retention-or would have been exercising those rights but for the retention. Rivera Castillo did not dispute that his retention of Elena in the United States violated Asuncion Mota's right under Mexican law to maintain physical custody of  her daughter.
In addition, the evidence supported the district court's uncontested factual finding that  Asuncion Mota would be exercising this custody right "but for the retention by [ Rivera Castillo] in New York, and there was no argument to the contrary.
 
 Rivera Castillo argued that the "consent" exception set out in Article 13 of the Convention applies in this case. The Second Circuit agreed with the district court that Rivera Castillo's argument was unavailing. Asuncion Mota's consent to her daughter's relocation was conditioned upon her own ability to join father and daughter in New York. The failure of this condition annulled  Asuncion Mota's consent.

         Rivera Castillo also urged the court to consider whether the exception set forth in Article 12 of the Convention might apply here. Under Article 12, a court is not bound to return a  wrongfully removed or retained child if the respondent shows by a preponderance of the evidence (1) that the return proceeding was commenced more than one year after the wrongful removal or retention, and (2) that the child "is now settled in its new environment." Hague Convention, art. 12; see also42 U.S.C.
s 11603(e)(2)(B). As Rivera Castillo did not raise this issue before the district court, and made only passing reference to it in his reply brief on appeal, the Court treated this argument as waived. (Citing In re Nortel Networks Corp. Sec. Litig., 539 F.3d 129, 133 (2d Cir.2008) ("Although we may exercise discretion to consider waived arguments where necessary to avoid a manifest injustice, the circumstances normally do not militate in favor of an exercise of discretion to address new arguments on appeal where those arguments were available to the parties below and they proffer no reason for their failure to raise [them].")

         The Second Circuit concluded that Mexico was the country of Elena's habitual residence at the time relevant for this analysis; that Rivera Castillo had wrongfully retained Elena in the United States; and that no statutory exception applied.
Elena must therefore be returned to Mexico, where her parents' respective custody rights may be fully adjudicated.