Thomson v Gnirk, 2012 WL 3598854 (D.N.H.) [Canada] [Habitual Residence]

In Thomson v Gnirk, 2012 WL 3598854 (D.N.H.) petitioner, Jessica Lorraine Thompson, claimed that the respondent, Chad Paul Gnirk, wrongfully retained custody of their 3-year old daughter, J.G. in New Hampshire and sought J.G.'s return to Canada. At the trial Thompson participated via videoconference from the office of her counsel in British Columbia, while her American counsel was present in the courtroom to conduct her case. The District Court found that that J.G. was habitually resident in the United States as of August 25, 2012, when Gnirk's allegedly wrongful retention of custody of her began, so that Thompson's petition for relief under the Hague Convention had to be denied.

The District Court found that when the parties met, Gnirk was 34 years old and had been living with a friend and intermittently working at a restaurant. Gnirk was separated from, but still married to his wife, who lived, together with their daughter, in British Columbia. Gnirk was always a United States citizen and never had any permanent legal status in Canada. In June 2007, Gnirk moved to Washington State to work at a car dealership, and Thompson accompanied him. They initially lived together in a house that Gnirk rented, and then lived elsewhere in the area, including with one of Gnirk's friends. Gnirk and Thompson lived together in Washington State until June 2008. In the spring of 2008, while living with Gnirk in Washington State, Thompson discovered that she was pregnant. In June 2008, Thompson and Gnirk returned to British Columbia, where they initially lived in a structure outside the house of Thompson's sister and brother-in-law. After a brief time there, Thompson and Gnirk moved to a basement apartment they rented in Brentwood Bay, British Columbia. Gnirk worked sporadically in a restaurant during this time. Gnirk also explored the possibility of obtaining Canadian citizenship, which he discovered would prove difficult without a steady job. Thompson testified that, in late August 2008, she and Gnirk were engaged to be married. On January 18, 2009, J.G. was born at a hospital in Victoria, British Columbia. She was later issued a British Columbia birth certificate, a Canadian social insurance card, and, in April 2010, with Gnirk's consent, a Canadian passport. Eventually, Thompson and Gnirk decided that he should return to northern New England, where he had grown up, and where members of his family lived, to try to secure employment. In October 2009, Gnirk moved to Berwick, Maine, where he initially lived at the home of his brother and his family while looking for work. Shortly after the move, Gnirk accepted a job as the finance manager at a car dealership in Portland, Maine, but the job did not open up as anticipated, so the dealership allowed him to seek other employment. Gnirk worked for a few weeks in December 2009 as the sales manager at another car dealership, in Lebanon, New Hampshire, and then began working for the dealership in Portland that had initially hired him. In early December 2009, while Gnirk was working at the dealership in Lebanon, Thompson and J.G. traveled to the United States, where they began staying with Gnirk. Gnirk testified that, as he and Thompson had discussed prior to his own move to Maine, she and J.G. joined him there in December 2009 "to start a new life, get a home, settle down."

In late April or early May 2011, the parties' romantic relationship ended. Nevertheless, Thompson and Gnirk (and J.G.) continued living together in New Hampshire until May 26, 2011, when, with Gnirk's consent, Thompson and J.G. traveled to British Columbia. They initially stayed at Thompson's parents' house there. Thompson and Gnirk talked frequently by telephone. Thompson asked Gnirk to send her money, which he did. Roughly one month later, on June 26, 2011, Thompson and Gnirk met in Seattle, where Gnirk took J.G. back to New Hampshire with him. After returning to New Hampshire with J.G., Gnirk hired a babysitter to care for J.G. while he was at work. Thompson frequently communicated with Gnirk by phone or text to see how J.G. was doing, and spoke to J.G. by phone as well. On July 29, 2011, in what appeared to be one of a series of text messages between the parties around that time, Thompson wrote, "All I'm saying is I miss her and I don't think we can go three months. I'm dying here. I'm sure she misses me too" . This suggested that, contrary to Thompson's testimony, the parties had not already agreed that J.G. would stay with Gnirk for only two months.

The court found that Thompson, Gnirk, and J .G. had lived together in the United States (first in Maine, and then in New Hampshire) from early December 2009 to late May 2011, a period interrupted only by two visits that Thompson and J.G. made to Canada to see Thompson's family, and, finally, when Thompson, a Canadian citizen and J.G. returned to Canada following the breakup of the parties' romantic relationship. The circumstances of the cohabitation strongly suggested the parties' "shared intent or settled purpose" that J.G. reside in the United States and, therefore, that her habitual residence was in the United States as of the alleged wrongful retention. Nicolson v. Pappalardo, 605 F.3d 100, 103-04 (1^st Cir.2010).

　

After Gnirk notified Thompson that he would not be sending J.G. back to Canada, on August 25, 2011, she filed, through counsel, an ex parte application with the Supreme Court of British Columbia seeking an award of interim custody over J.G. On August 25, 2011, the British Columbia court issued an order awarding Thompson interim sole custody of J.G. and directing Gnirk to return her to Thompson's care. Gnirk learned of the order after Thompson faxed it to the Gorham New Hampshire Police Department and an officer brought a copy of it to Gnirk's. On August 26, 2011, Gnirk filed an ex parte motion with the Berlin Family Division of the First Circuit Court of New Hampshire, seeking to be temporarily awarded sole decision-making and residential responsibility over J.G. The court granted that relief the same day. On August 29, 2011, Thompson filed an application with the British Columbia authorities for relief under the Hague Convention. In the Berlin Family Division, she later filed a "Petition to Register a Foreign Judgment," namely, the ex parte order awarding her interim sole custody of J.G. The Family Division held a hearing on Gnirk's and Thompson's petitions in November 2011. Following the hearing, which both parties attended with counsel, the Family Division left its order granting temporary custody to Gnirk in place, dismissed Thompson's petition to register the British Columbia court's contrary order, and directed her to file a petition requesting Hague Convention relief with the Family Division if she wished to pursue it. In February 2011, the Family Division held another hearing, for the purposes of considering whether it had jurisdiction to determine custody of J.G. and, if so, what further custody orders should issue. Thompson attended the hearing with counsel, but only to contest the Family Division's jurisdiction; she refused to participate as to custody matters. On March 23, 2012, the Family Division ruled that it had jurisdiction to determine J.G.'s custody, and approved Gnirk's proposed temporary parenting plan. The British Columbia court later held a series of hearings on Thompson's petition in April and May 2012. Gnirk did not appear at any of them. On May 10, 2012, the British Columbia court awarded Thompson permanent sole custody and permanent sole guardianship of J.G. Thompson commenced this District Court action on June 12, 2012.

The District Court observed that courts "[m]ost commonly" conclude "that the family as a unit has manifested a settled purpose to change habitual residence ... when both parents and the child translocate together under circumstances suggesting that they intend to make their home in the new country." Mozes v. Mozes, 239 F.3d 1067, 1076-77 (9th Cir.2001). The circumstances outlined strongly suggested, if not outright compel-that conclusion here. Indeed, Thompson and Gnirk " did what parents intent on making a new home for themselves and their child do," including finding stable employment and housing in the place where they moved. Feder v. Evans-Feder, 63 F.3d 217, 224 (3d Cir.1995); see also Koch v. Koch, 450 F.3d 703, 714 (7th Cir.2006) (upholding finding that children's habitual residence was Germany where "the entire family moved to Germany because that is where [the father] found work. They took all of their possessions except for a few large items and established a life in Germany
where [the father] worked and [the mother] cared for the children").

In addition to this strong circumstantial evidence that the parties intended for J.G. to reside in the United States, there was also direct evidence to that effect. Gnirk testified that he and Thompson had discussed in advance that, after he moved to Maine, she and J.G. would join him there "to start a new life, get a home, settle down."The court credited this testimony not only because it made sense in light of the parties' situation in Canada prior to the move and their actions in the United States afterwards, but also because Thompson had not come forward with any plausible theory of what else the parties could possibly have been planning. She claimed that the parties intended that she and J.G. remain in Canada and occasionally visit Gnirk in the United States until he could return to Canada, but it was not clear how that would have been possible in light of Gnirk's lack of job prospects or legal immigration status in Canada. Moreover, there was no credible evidence that the parties did anything to put such a plan into effect at any point after moving to the United States. To the contrary, nearly everything they did manifested their shared intentions that J.G. reside, together with her parents, in the United States.

The Court observed that perhaps Thompson never stopped subjectively thinking of British Columbia as her "home," or even her daughter's "home." Thompson grew up there, her parents, sister, and extended family lived there, and J.G. was born there. Perhaps she even subjectively thought of the time she and J.G. spent with Gnirk in the United States as "visits." Everything but Thompson's trial testimony suggested that she did not in fact see things that way, at least contemporaneously, but, as she acknowledged, her subjective feelings as to where J.G. was living carry little if any weight in the habitual residence analysis in any event.

The Court noted that the Court of Appeals has squarely rejected the notion that, "if [one parent] were credited with a fixed subjective intent to take her daughter permanently to [one country], then all other circumstances would be irrelevant" in deciding habitual residence, because " '[s]tanding alone, of course, [one parent's] intent that the child should one day live in [that country] cannot support a finding of habitual residence.' " Nicolson, 605 F.3d at 105 (quoting Ruiz v. Tenorio, 392 F.3d 1247, 1253 n.4 (11th Cir.2004)). Instead, whether the parents have arrived at a settled intent as to the child's habitual residence "should be guided by an objective observer standard."

Based on the facts and circumstances any objective observer would have to conclude that, in early December 2009, Thompson and J.G. had moved to the United States to live with Gnirk, and continued living there with him until late May 2011, a situation that clearly reflected the parties' settled intent that J.G. reside in the United States with her family as a unit.

The parties never sought legal immigration status in the United States for either her or for J.G., both of whom were Canadian citizens. While some courts have treated this fact as tending to negate any shared intent for the child to reside in the country in question, see, e.g., Ruiz, 392 F.3d at 1256, none appears to have relied exclusively on the child's (let alone a parent's) lack of legal status in a country to reject it as the child's habitual residence, and that fact certainly could not bear such significance here. To the contrary, it was reasonable to infer that the parties never sought lawful permanent residency or citizenship in the United States for Thompson or J.G. because they were preoccupied with the day-to-day issues that preoccupy many young working families, such as employment, housing, and financial stability, and not because they never intended that J.G. should habitually reside in the United States.

Thompson also argued that, prior to the move to the United States in December 2009, J.G.'s habitual residence was Canada, so that the court can find that her habitual residence later became the United States only if the "objective facts point unequivocally to a new habitual residence." As support for this view of the law, Thompson relied on a statement from the Eleventh Circuit's decision in Ruiz, with which she claims the First Circuit has said, in Nicolson, it is "in accord." There were several problems with this argument.

First, Nicolson does not say that it is "in accord" with this aspect (or claimed aspect) of Ruiz. Instead, Nicolson states that "Ruiz accords with our own view that the law is less rigid than [the respondent in that case] assume[d] and that tests of habitual residence must be applied to the circumstances of the case." 605 F.3d at 105. It is difficult to read this statement as an endorsement of the very sort of rigid test that the court understood Thompson to propose, i.e., so long as a child was habitually resident in some other country at some prior point-irrespective, it would appear, of how long ago that was at the time of the alleged abduction or retention-a new habitual residence can be shown only by "unequivocal" evidence. Second, Ruiz did not stand for that proposition anyway. Ruiz says "that  when there is no shared settled intent on the part of the parents to abandon the child's prior habitual residence, a court should find a change in habitual residence if the objective facts point unequivocally to a new habitual residence." 392 F.3d at 1254 (discussing Mozes, 239 F.3d at 1081). The court found that the parties had the "shared settled intent" to abandon J.G.'s habitual residence in Canada and move her habitual residence to the United States, even assuming, without deciding, that the parties had previously formed a shared settled intent that J.G. reside in Canada, a point on which there was conflicting trial testimony and circumstantial evidence that is ambiguous at best. Ruiz, then, does not support Thompson's view that J.G.'s habitual residence was Canada, rather than the United States, at the time of Gnirk's alleged wrongful retention of her on August 25, 2011.

Prior to that point, of course, J.G. had briefly traveled to Canada with Thompson, following the dissolution of the parties' romantic and cohabitative relationship in late May 2011. But "the mere fact that conflict has developed between the parents does not ipso facto disestablish a child's habitual residence, once it has come into existence." Delvoye v. Lee, 329 F.3d 330, 333 (3d Cir.2003). To show that Canada became J.G.'s new habitual residence following the parties' breakup in May 2011, Thompson would have to show by a preponderance of the either a "shared settled intent on the part of the parents to abandon the child's prior habitual residence" or that the "objective facts point unequivocally to a new habitual residence." Ruiz, 392 F.3d at 1254.

　

The court could not find, by a preponderance of the evidence, that, following the end of the parties' romantic relationship in May 2011, they ever shared any "settled intent" that J.G. reside in Canada going forward. The court found that the parties had not decided where J.G. would live in the future, either before Thompson and J.G. traveled to Canada on May 26, 2011, or before Thompson transferred J.G. to Gnirk on June 26, 2011.Nor could the court that J.G.'s habitual residence became Canada as of May 26, 2011. J.G. had spent only about a month there before returning to New Hampshire in late June 2011.

Deciding a child's habitual residence under the Hague Convention is usually a "task to determine the intentions of the parties as of the last time their intentions were shared." Gitter, 396 F.3d at 134. The parties did not share an intent to transfer J.G.'s habitual residence to Canada at any point after they had settled on an intent that she habitually reside in the United States. It followed that the last time the parties shared an intent that J.G. habitually reside in any country, it was the United States.

The Court found that, as of Gnirk's allegedly wrongful retention of J.G. on August 25, 2011, J.G. was habitually resident in the United States. It followed that Thompson has not carried her burden of proof for relief under Article 3 of the Hague Convention. In reaching this conclusion, the court repeatedly found that Thompson's testimony was not credible, both as to larger matters such as whether she was simply "visiting" the United States and as to more minute details. The court stressed that it did not view Thompson as an inherently untrustworthy person, or as a witness bent on misleading the trier of fact. Instead, the court suspected that Thompson, like many parties who testify on their own behalf-particularly those who bear the burden of proof-was struggling to square prior events, including her own behavior, with the necessary showing (in this case, that she and Gnirk never shared an intent for J.G. to reside anywhere but Canada).

Fernandez v. Somaru, 2012 WL 3553779 (M.D.Fla.)[Costa Rica] [Habitual Residence]

In Fernandez v. Somaru, 2012 WL 3553779 (M.D.Fla.) petitioner Marcela Araya Fernandez filed a Verified Petition for Return of Child to Costa Rica on May 11, 2012. Petitioner and respondent were the unmarried parents of three year old daughter, I.S.A. Petitioner alleged that I .S.A. is being unlawfully retained in the Middle District of Florida by the child's father, Pramanan Somaru, Jr., who wrongfully prevented the child's return to her habitual residence of Costa Rica. Marcela Araya Fernandez (petitioner ) was born in Costa Rica, resided there virtually her whole life, and was a citizen of only Costa Rica. Araya's entire family lived in Costa Rica. Pramanan Somaru, Jr. (respondent was a naturalized United States citizen who for the past fifteen years considered his residence to be his parent's house in Cape Coral, Florida. Somaru possessed a United States passport and traveled extensively in the years relevant to this case. In 2007, Somaru started a call center business in Costa Rica. Other than this business, Somaru had no particular ties to Costa Rica. Somaru hired Araya as an employee of his call center business in San Jose, Costa Rica, and in approximately April, 2007, they became romantically involved. Somaru fired Araya as an employee after a couple of weeks, but they continued their personal relationship. Somaru and Araya lived together in Costa Rica from May, 2007 through late April, 2008, and the relationship proved to be volatile, with numerous arguments and break-ups followed by periods of reconciliation. Somaru continued to travel frequently, and there was numerous email communications between the two. The Costa Rica call center was not successful, and Somaru closed it in April or May, 2008. In May, 2008, Somaru returned to Cape Coral, Florida and rented a house. Araya followed him shortly thereafter on a tourist visa. The relationship remained volatile, and Araya returned to Costa Rica and broke up with Somaru. Araya then learned she was pregnant, so she informed Somaru and they tried to make their mostly long distance relationship work.

Araya remained in Costa Rica, and her daughter I .S.A. was born in Costa Rica on March 4, 2009. Somaru arrived in Costa Rica three days before, and was present for the birth of I.S.A. Somaru left Costa Rica shortly thereafter, but continued to financially support his daughter to the best of his ability. Somaru returned to Costa Rica for a week when I.S.A. was five or six months old. Petitioner was always the primary care-giver for I.S.A., who remained in Costa Rica. Petitioner and respondent (collectively the parents) were often separated during the following two years, with Araya residing in Costa Rica with I.S.A. and Somaru living between Florida and Costa Rica and working primarily in Florida. They spoke or emailed often about living together in various places, including the United States. Somaru testified that he and Araya's "main plan" was to make the United States their permanent residence, although the location in the United States was not determined. Araya testified that Somaru talked a lot about residing in various locations to which he had traveled, but this was essentially just talk.

By 2009, when Somaru was working in Miami, Florida, Araya wanted to be together as a family either in or out of Costa Rica, but it did not happen. After that, Araya testified, she gave up any intention of permanently leaving Costa Rica because she just did not believe anymore. Somaru would travel back and forth between his parents' house in Cape Coral and Costa Rica. Somaru and Araya would live together in one of a series of rental houses when Somaru was in Costa Rica. In January, 2011, Somaru purchased a restaurant from Araya's stepfather in Costa Rica, but continued to travel back and forth from his parents' house in Cape Coral, Florida to Costa Rica. Araya initially ran the restaurant during Somaru's absences from Costa Rica, but another employee was soon promoted to manager. In February, 2011, Somaru hired Elizabeth Valde Varantes as a live-in nanny for I.S.A. in Costa Rica. Ms. Varantes was born in Costa Rica, and spoke only Spanish. On September 1, 2011, the parents obtained a United States passport for I.S.A. based upon her father's United States citizenship. On September 13, 2011, both Somaru and Araya executed a "Permiso de Salida de Personas Menores de Edad", a consent form which allowed either parent to travel alone with I.S.A. outside of Costa Rica. Araya testified that the purpose of the passport was to allow I.S.A. to visit her paternal grandparents, while Somaru testified it was in furtherance of their agreement to live permanently in the United States. From September 21 through October 8, 2011, the parents took I.S.A. on a trip to the United States. Somaru describes the trip as a chance for I.S.A. to meet her paternal grandparents and for he and Araya to look for a house and work pursuant to their plan to reside permanently in the United States. According to Araya, the purpose of the trip was simply to allow I.S.A. to visit her paternal grandparents in Cape Coral. During this trip Somaru took a side trip to Bolivia to visit his son for several days. The parents then took I.S.A. to Disney World, and they visited New York, where Somaru was offered employment. According to Somaru, Araya agreed to move to New York, and Somaru accepted the employment. I.S.A. and Araya returned to Costa Rica on October 8, 2011. Somaru testified he returned to Costa Rica in October for a weekend and again in November, 2011, both for the purpose of facilitating the plan to move to the United States. Araya agrees he came to Costa Rica, but only for visits. In the later part of November, 2011, Araya described a "final breakup" with Somaru. Somaru moved out of the house and left Costa Rica, and Araya began sending out employment resumes and actively looking for employment. Somaru testified he did not believe this was a permanent breakup, and that Araya simply did not answer his calls for several days. Somaru testified he left Costa Rica and returned to New York to get things under way while Araya looked for apartments in the New York area. After the breakup, Araya met and shortly thereafter became involved in a romantic relationship with another man in Costa Rica.        

On December 1, 2011, Somaru returned to Costa Rica to take Araya and I.S.A. to the United States. Araya had packed up the house, and on Sunday, December 4, 2011, Somaru and the movers took the furniture to store in the nanny's house, which Somaru had rented for that purpose. Araya then told Somaru that she had a job interview the following day in San Jose, Costa Rica, which was three hours away. Somaru testified that Araya insisted on going to the interview to see if she could get the job, and would then quit. Araya testified this was a bona fide job interview, and she was trying to get the job in Costa Rica. Araya drove to San Jose on December 4, 2001, and Somaru and I.S.A. stayed in the nanny's house while Araya was in San Jose. Somaru made arrangements to leave Costa Rica with I.S.A. on December 8 if the nanny's visa was obtained. In San Jose, Araya interviewed for several days, and was ultimately hired. On December 7, 2011, Somaru, I.S.A., and the nanny took a bus to San Jose and met Araya. According to Araya, she and Somaru agreed that Somaru could take I.S.A. to Florida to visit the child's paternal grandparents if I.S.A. was returned to Costa Rica before December 28, 2011, Araya's birthday. Somaru maintains this was to be their final trip from Costa Rica to their new life in the United States. On December 8, 2012, Somaru and I.S.A. flew from Costa Rica to Florida, while Araya and the nanny (who had not yet obtained a visa) remained in Costa Rica.   
Earlier in December, 2011, Somaru had applied to the United States Embassy for a "nanny" visa for Ms. Barrantes. Somaru's letter to the Embassy stated that Ms. Barrantes had been employed by him since October, 2011; that his fiancé and daughter would be traveling to the United States for the Christmas and New Year holiday; that his fiancé and daughter will return to Costa Rica after the New Year "as my fiancé and Daughter reside in Costa Rica where Ms. Barrantes takes care of my daughter full-time." The visa was issued on December 9, 2011, with the annotation of "babysitter to accompany Somaru family December 2011-Jan 2012 Florida" and with an expiration date of February 7, 2012.  When Araya reported for work in San Jose, Costa Rica on December 8, she was told the position was no longer available. Araya then scheduled job interviews through December 14 in San Jose. She was ultimately offered employment. The nanny could only travel with one of the parents, and Araya and the nanny left Costa Rica and arrived in the United States on December 15, 2011. The nanny traveled on the six month "nanny visa", and Araya traveled on a 90-day tourist visa. Araya testified that the trip to the United States was a holiday trip so I .S.A. could see her paternal grandparents, and that she had no intention of living in the United States permanently. She testified she intended to return to Costa Rica for job training which began on December 19, 2011. Araya, Somaru, I.S.A., and the nanny all stayed at Somaru's parent's house for a day, and then in Somaru's sister's house in Cape Coral. Somaru testified that after they had been in Florida for about a week, Araya changed her mind and decided she did not want to go to New York, so he found work in Florida. Araya had scheduled a flight to Costa Rica on December 18, 2011, but missed it and ended up taking a flight to Costa Rica on December 22, 2011. Somaru testified that on December 21, 2011, Araya told him that she was going back to Costa Rica to wrap up a few things, including employment she had been offered which she no longer wanted, and that she would be back after the holidays. Araya testified that it was agreed that I.S.A. would be back in Costa Rica by December 26 or 27, before Araya's December 28 birthday. Araya returned to Costa Rica, and never returned to Florida (other in connection with this litigation). Somaru testified that he tried to contact Araya in Costa Rica, but had little success. Sometime after December 28, 2011, Somaru decided he needed to move forward with starting to build a life for I.S.A. in the United States without Araya. When I.S.A. was not returned by December 28, 2011, Araya contacted Somaru, who told her to "get used to it."

In January, 2012, Araya contacted Costa Rican authorities and initiated procedures to obtain the return of I.S.A. to Costa Rica, revoking her prior travel permission for Somaru and I.S.A. Araya began work at a new job in Costa Rica on January 2, 2012, and has worked and resided in Costa Rica since then. The Court resolves the credibility issues between petitioner and respondent on material issues as discussed below. The Court found that the retention of I.S.A. in the United States was clearly with petitioner's consent until on or about December 28, 2011, the date by which I.S.A. was to be in Costa Rica for petitioner's birthday. Petitioner testified that she agreed that I.S.A. could be taken to and remain in Florida to visit her paternal grandparents as long as I.S.A. was returned to Costa Rica by December 28, 2011. Respondent retained I.S.A. in Florida past that date without the consent of petitioner. The issue therefore becomes the location of I.S.A.'s habitual residence as of on or about December 28, 2011. Determination of a habitual residence focuses on the existence or non-existence of a settled intention to abandon the former residence in favor of a new residence, coupled with an actual change in geography and the passage of a sufficient length of time for the child to have become acclimatized. Ruiz, 392 F.3d at 1253-54, adopting the approach set forth in Mozes v. Mozes, 239 F.3d 1067 (9th Cir.2001).

 The Court concluded that petitioner established by a preponderance of the evidence that on or about December 28, 2011, I.S.A.'s habitual residence remained Costa Rica. The Court found that the parents never had a settled intention to abandon Costa Rica as a habitual residence and to make the United States the habitual residence for themselves or the child. The version of the facts related by petitioner and respondent, while inconsistent as to material components, both established a lack of a settled intention to do almost anything together with regard to a habitual residence. The only settled shared intent the Court found credible was for I.S.A. to come to Florida for the holidays in December, 2011. The Court found that the actual state of affairs was as respondent told the immigration authorities in mid-December, 2011 in the nanny's visa application: Petitioner and I .S.A. resided in Costa Rica, they were going to Florida for a holiday, and they would then return to Costa Rica. Consequently, the Court finds that at the time the retention began on December 28, 2011, the habitual residence of I.S.A. was Costa Rica. Respondent maintained custody of I.S.A. in the United States and refused to allow the child to return to her mother in Costa Rica. Respondent also retained the child's United States passport (until surrendered to the court). I.S.A.'s usual family and social environment was with Araya in Costa Rica. The Court found that there was a "retention" of I.S.A. within the meaning of the Hague Convention from at least December 28, 2011, forward. Under Costa Rican law, parental custody depends on whether a child was born in or out of wedlock.

Petitioner and respondent were never married, and therefore their daughter I.S.A. was born out of wedlock. Costa Rican law provides, in such a circumstance that, [t]he mother, even when she is under age, shall have custody of the children born out of wedlock and shall have legal rights for that purpose. The Tribunal could, in special cases, confer custody to the father and natural mother jointly, according to its judgement, or upon request from Patronato Nacional de la Infancia and concerning solely the minors' interests. In the event that a child is born in wedlock, Costa Rican law generally provides for custody of both the mother and the father. Under Costa Rican law, custody was conferred to petitioner. Thus, respondent's retention of the child was a wrongful retention under the Hague Convention. Respondent's unilateral retention of I.S.A., without the consent of petitioner, violated petitioner's custody rights under Costa Rica law. The Sixth Circuit has stated that "[t]he only acceptable solution, in the absence of a ruling from a court in the country of habitual residence, is to liberally find 'exercise' whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child." Friedrich, 78 F.3d at 1065. The court went on to "hold that, if a person has valid custody rights to a child under the law of the country of the child's habitual residence, that person cannot fail to 'exercise' those custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child." Under this standard, Petitioner established she was exercising her rights of custody at the time the child was wrongfully retained. As established above, petitioner had sole legal custody of I.S.A. There was no evidence of any acts by petitioner which constitute clear and unequivocal abandonment of the child . Accordingly, petitioner met her burden of establishing that I.S.A. was wrongfully retained by respondent and should be returned to Costa Rica, her habitual place of residence. The Court found no factual basis for any of the affirmative defenses raised by the Respondent and granted the petition.

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.

Sanchez v Sanchez, 2012 WL 3204183 (W.D.Tex.) [Mexico] [Grave Risk of Harm] [Well-Settled] [Federal & State Judicial Remedies]

In Sanchez v Sanchez, 2012 WL 3204183 (W.D.Tex.) Petitioner Angelica Lopez Sanchez's and Ramon Gonzalez were the parents of R.G.L. (Born 1998), S.I.G.L.
(Born 1999) and A. S.G.L. (Born 2004). The children were all born in Mexico. Petitioner was a resident of Mexico. From birth until June 9, 2011, the children continuously lived with their mother in Ciudad Juarez, Chihuahua, Mexico. On or about June 9, 2011, the children's aunt, Miriam Lopez Sanchez, took the children from Ciudad Juarez to the El Paso, Texas residence of their uncle, Jose Enrique Lopez Sanchez. Miriam Lopez Sanchez did not have Petitioner's permission to remove the children to Texas. If Miriam did have permission to take the children to Texas, it was only for the purposes of a temporary visit. While in El Paso, Texas, the children resided in several locations, Miriam's home, and the home of someone named Antonio. Despite several requests by the Petitioner, Jose Enrique Lopez Sanchez and Miriam Lopez Sanchez refused to return the children to Petitioner.

Eventually, on or about July 18, 2012, either Jose or Miriam took the children to the Santa Fe International Bridge for the purposes of returning the children. The children were dropped off at the bridge and instructed to walk across to the Mexican border. Petitioner and her boyfriend were on the other side waiting for the children. Rather than walk across the border, the oldest child Ramon decided he did not want to return to Mexico and he "handed" himself and his siblings to U.S. Immigration and Customs Enforcement (ICE) officials. The ICE officials detained the children on the U.S. side of the Santa Fe International Bridge. They were not accompanied by any adult. Rather than return the children to Petitioner, ICE agents were advised that Miriam Lopez Sanchez made allegations that the children were abused by Petitioner's
boyfriend, Arturo Quinonez. ICE officials decided that they could not return the children until the allegations of abuse could be determined. ICE officials later transferred the children from an El Paso facility, to a Brownsville, Texas facility, and later to a U.S. Department of Health and Human Services, Office of Refugee Resettlement (ORR), Division of Unaccompanied Children's Services (DUCS) foster care facility in San Antonio, Texas. The Director of that facility was Asennet Segura.

On June 8, 2012, Petitioner filed her Verified Petition for return in the District Court.
The District Court found that the Republic of Mexico was the children's country of habitual residence prior to June 2011. The children were physically located in Texas. Pursuant to an agreement between the U.S. Office of Refugee Resettlement, located within the U.S. Department of Health and Human Services, and Baptist Child and Family Services (BCFS), the children had been placed in a BCFS foster home. The Respondent, Asennet Segura, was BCFS Executive Director of Residential Programs.

The Department of Homeland Security instituted removal proceedings against
the children. Attorney Lee Teran and the St. Mary's Law School Clinic  entered
appearances as attorneys for the children in those immigration proceedings. On July 6, 2012, the St. Mary's Clinic filed I-589 asylum applications on behalf of the children.
On July 11, 2012, the Refugee and Immigrant Center for Education and Legal
Services (RAICES) through attorney Alexandra Minnaar, filed a Petition in Suit 
Affecting the Parent-Child Relationship in the 438th Judicial District Court of Bexar
County, Texas. In that suit it requested that the state court find "that it is not in [the]
best interests [of the children] to return to their parents' country of nationality, Mexico. The children also request that the [state] court find that reunification with one or both of their parents is not viable due to abuse, abandonment, or neglect, or a similar basis under state law." RAICES had a contractual agreement with the Republic of Mexico's Consulate in San Antonio to provide certain legal services in Texas for its citizens. The Republic of Mexico did not authorized the filing of this state lawsuit and opposed it.

The Young Center for Immigrant Children's Rights at the University of Chicago has sent the Court a letter claiming that it had been appointed by the ORR as the Child Advocate for the three children. They argued that returning the children to Mexico would pose a grave risk of physical and psychological harm because Arturo Quinonez, who it claimed was the children's stepfather was a violent person, beat the mother and the children and that the drug cartel Los Aztecas threatened the family because of Arturo Quinonez. Petitioner testified that she and Arturo were not married. Petitioner claimed that she separated from Arturo and now lived with her father.

The District Court found that the children were wrongfully retained by Respondent. It also found that Respondent had failed to establish that there was a grave risk that the children's return would expose the children to physical or psychological harm or otherwise place the children in an intolerable situation. Advocates for the children argued that the following, either individually or in   combination, would expose the children to physical or psychological harm or otherwise place the child in an intolerable situation: (1) the Petitioner's boyfriend subjected Petitioner to physical domestic abuse by either physically striking her various times a week or is verbally abusive to Petitioner; (2) the Petitioner's mother once saw her daughter's face "black and blue" from hits inflicted by the boyfriend; (3) Petitioner's boyfriend used drugs (marijuana use and ingesting some form of pills for "nerves") in the home; (4) the boyfriend hit the two oldest children with a belt and his hand; (5) the boyfriend required that the children assist him in washing cars and seldom paid them; (6) the boyfriend sold marijuana and may be hiding drugs for cartel members at the home; (7) Ramon's father failed to secure medical treatment on one occasion when Ramon was injured in a vehicle accident. Ramon's mother promptly secured medical attention for him; and (8) Petitioner caused the children to miss school because of financial problems.

The District Court found that Petitioner had been in an on and off relationship with Arturo Quinonez for years. He was convicted in Oklahoma in 1989 and 1997 for assault with a deadly weapon. On October 2, 1998 Shannon Danelle Quinonez secured a divorce from Arturo. The state district court in Oklahoma found that Arturo was "dangerous to the physical well-being of [Shannon] and the minor children and that he should be restrained from harassing, molesting or interfering with the peaceful existence of [Shannon] or the minor children...."

　
The St. Mary's School of Law Center for Legal and Social Justice Immigration and Human Rights Clinic (attorneys Lee Teran, Albert Kauffman, Adriane Meneses) sought leave to intervene on behalf of the three children. The motion stated that the
minor children sought to appear in this action through Alex Hernandez as Next Friend. Alex Hernandez was married to Maria Balderas. Ms. Balderas was Petitioner's sister. Alex Hernandez was not related by blood to the children. Neither he nor any of the attorneys listed above had been appointed by any Texas court as attorneys or guardians at litem for the children. Ms. Balderas testified that she had not authorized anyone to initiate any legal action for the children. Petitioner and the children's father had likewise not authorized Alex Hernandez or any of the attorneys listed above to initiate any legal action on behalf of the children. The Court found that this action ran counter to the objectives set forth in Hague Convention and denied the motion.

The proposed intervenors mentioned above filed a motion to dismiss arguing that the Court lacked jurisdiction Alternatively, they sought dismissal arguing that the
Department of Homeland Security had exclusive legal control of the children pursuant to 8 U.S.C.A. 1232. The Court found that the proposed intervenors had no standing "zone of war, famine, or disease," or in cases of serious abuse or neglect. Respondent provided evidence that there has been a surge of violent activity in Monterrey due to drug cartel activity and that the neighborhood where Petitioner lives is dangerous. This is not sufficient to find that Monterrey is a "zone of war." See Silverman, 338 F.3d at 900-01 (finding that general regional violence in Israel does not establish a "zone of war"); Mendez Lynch v. Mendez Lynch, 220 F.Supp.2d 1347, 1365-66 (finding civil instability and presence of violent   demonstrations in Argentina did not amount to a "grave risk" or "intolerable situation").

The District Court observed that Respondent had to establish that there is a grave risk that the child's return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. It is not enough to put forward evidence of past acts of domestic abuse or past drug activity in the home. Petitioner testified that she severed her ties with her former boyfriend and moved to a new home. There was testimony that Petitioner previously separated from her boyfriend and reconciled with him, only to fall prey to domestic abuse again. This was a disturbing pattern. Petitioner testified that she understood the children did not want any association with her former boyfriend and that she concluded that her children were more important to her than her relationship with Mr. Quinonez. Neither the children, nor any other interested party, had raised concerns that the children would suffer physical or psychological harm by returning the children to their mother (assuming that Mr. Quinonez was no longer present). The Mexican Government presented evidence that they had an agency similar to the Texas Department of Child Protective Services and can monitor any claims of abuse or neglect. The attempted intervenors' argument that "the country of habitual residence ... may be incapable or unwilling to give the child[ren] adequate protection" must be measured against the Hague Convention goals and deference to a sovereign foreign country.

The attempted intervenors also argued that under Article 13, the two oldest children
attained an age and degree of maturity to opine that they do not wish to be returned to Mexico. The Court considered this argument and met with the two oldest children in chambers. Although bright and well-mannered, the children had just completed fifth and eighth grades. Although they wished to remain in the United States, there was no certainty that the Immigration Court would actually grant any asylum application. The children's preferences were based on animosity towards their mother's boyfriend. They had not expressed to the Court any concern about their mother. They recognized that their financial and comfort level living in San Antonio exceeded what they formerly enjoyed in Ciudad Juarez. They, understandably, did not want to give up their current lifestyle.

The Court that Respondent failed to establish by clear and convincing evidence that there is a grave risk that the child's return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The age of maturity exception also failed. Respondent also has failed to establish that Article 20 mandate denial of Petitioner's Petition for the return of the children. Petitioner's motion for return of the children was granted. The motion was dismissed for that
reason. It also held that 8 U.S.C. 1232 was not applicable in this case. No one advanced any argument or testimony that the children had been victims of a severe form of trafficking in persons, and there was no credible evidence that the children were at risk of being trafficked upon return to the child's country of nationality or of last habitual residence. Accordingly, in the alternative, the motion to dismiss was denied.

      
Although the Court denied the motions from the proposed intervenors and the
above named attorneys, the Court evaluated the arguments they raised in its decision.
It observed that in Vazquez v. Estrada, 2011 WL 196164 (N.D.Tex. Jan. 19, 2011), the removing parent argued that returning the child to Mexico would expose her to a grave risk of physical harm due to the "spiraling violence and surge in murders
in Monterrey" and because of "specific violent acts that have been committed in the
school [the child] attended in Monterrey and in the neighborhood where Petitioner
resides."The court found that the removing parent failed to establish the exception by
clear and convincing evidence: " Like the other defenses, the grave risk defense must be narrowly construed. The defense was not intended to encompass situations such as the return to a home where money is in short supply or where educational opportunities are more limited. Instead, a grave risk or intolerable situation exists where return of the child would send the child to a "zone of war, famine, or disease," or in cases of serious abuse or neglect. Respondent provided evidence that there has been a surge of violent activity in Monterrey due to drug cartel activity and that the neighborhood where Petitioner lives is dangerous. This is not sufficient to find that Monterrey is a "zone of war." See Silverman, 338 F.3d at 900-01 (finding that general regional violence in Israel does not establish a "zone of war"); Mendez Lynch v. Mendez Lynch, 220 F.Supp.2d 1347, 1365-66 (finding civil instability and presence of violent  demonstrations in Argentina did not amount to a "grave risk" or "intolerable situation").

The District Court observed that Respondent must establish that there is a grave risk that the child's return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. It is not enough to put forward evidence of past acts of domestic abuse or past drug activity in the home. Petitioner testified that she severed her ties with her former boyfriend and moved to a new home. There was testimony that Petitioner previously separated from her boyfriend and reconciled with him, only to fall prey to domestic abuse again. This was a disturbing  pattern. Petitioner testified that she understood the children did not want any association with her former boyfriend and that she concluded that her children were more important to her than her relationship with Mr. Quinonez. Neither the children, nor any other interested party, had raised concerns that the children would suffer physical or psychological harm by returning the children to their mother (assuming that Mr. Quinonez was no longer present). The Mexican Government presented evidence that they had an agency similar to the Texas Department of Child Protective Services and can monitor any claims of abuse or neglect. The attempted intervenors' argument that "the country of habitual residence ... may be incapable or unwilling to give the child[ren] adequate protection" must be measured against the Hague Convention goals and deference to a sovereign foreign country.

The attempted intervenors also argued that under Article 13, the two oldest children attained an age and degree of maturity to opine that they do not wish to be returned to Mexico. The Court considered this argument and met with the two oldest children in chambers. Although bright and well-mannered, the children had just completed fifth and eighth grades. Although they wished to remain in the United States, there was no certainty that the Immigration Court would actually grant any asylum application. The children's preferences were based on animosity towards their mother's boyfriend. They had not expressed to the Court any concern about their mother. They recognized that their financial and comfort level living in San Antonio exceeded what they formerly enjoyed in Ciudad Juarez. They, understandably, did not want to give up their current lifestyle.

The Court that Respondent failed to establish by clear and convincing evidence that there is a grave risk that the child's return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The age of maturity exception also failed. Respondent also has failed to establish that Article 20 mandate denial of Petitioner's Petition for the return of the children. Petitioner's motion for return of the children was granted.

Felder v. Ponder, 2012 WL 3128570 (D.Mass.) [Switzerland] [Rights of Custody]

In Felder v. Ponder, 2012 WL 3128570 (D.Mass.) Petitioner Claudia Felder sought an order for the return of her fourteen year-old daughter ( "K.W."), to Switzerland. Felder claimed the wrongful retention of K.W. under the Hague Convention by Respondent Alexandra Ponder, K.W.'s godmother, Patrick Wetzel, K.W.'s father, and Children's Hospital Corporation where she had been treated. The District Court granted Wetzel’s motion to dismiss for lack of subject matter jurisdiction.

K.W. was a citizen of Switzerland. When K.W.'s parents divorced in August 2007, the Uster District Court in Switzerland granted Felder custody of K.W. and her two sisters. Ponder was K.W.'s godmother; she and Felder had known each other for over twenty years. In September 2011, Felder sent K.W. to the United States to study at Central Catholic High School in Lawrence, Massachusetts. Felder agreed to have Ponder, a resident of Haverhill, Massachusetts, care for K.W. while she attended
school in the United States. Although she resided here during the school year, K.W. flew back to Switzerland for approximately one week in December and returned to school on January 3, 2012. At some point, Ponder began complaining about K.W.'s behavior and expressed doubts about her ability to continue caring for K.W. On May 19, 2012, K.W. attempted suicide. This attempt came on the heels of Felder's suggestion that K.W. should return to Switzerland. K.W. was taken to the emergency room at Holy Family Hospital in Methuen, Massachusetts. She was subsequently admitted to the inpatient psychiatric unit at Children's Hospital. Ponder notified Felder of K.W.'s emergency hospitalization and Felder agreed that K.W. should receive immediate medical care to ensure her safety and well-being. Throughout the first three weeks of K.W.'s hospitalization, Felder monitored K.W.'s progress through Ponder and the medical team at the Hospital. After K.W. had been hospitalized for about three weeks, medical staff proposed that K.W. be discharged from the Hospital to McLean Hospital, a psychiatric facility, in Belmont. After consulting with medical professionals in Switzerland, Felder proposed that K.W. be transferred back to Switzerland for further treatment. Felder and K.W.'s physician in Switzerland advised the Hospital staff that they would take responsibility for K.W.'s health and safety and would personally accompany K.W. back to Switzerland. On June 7, 2012, Felder was contacted by a social worker of the Hospital and informed that K.W. could not return to Switzerland. By mid-June, Ponder and Felder's relationship had broken down and Ponder no longer responded to Felder's inquiries about K.W.

.On June 17, 2012, Felder refused to give her consent to Ponder's request for guardianship over K.W., including an order that K.W. remain in the United States, and told Ponder that any prior consent to temporary guardianship had been terminated. On June 20, 2012, Felder traveled to Boston and informed Ponder that she was revoking her temporary role as K.W.'s guardian. On the heels of K.W.'s suicide attempt, K.W.'s father, Wetzel, contacted the City of Lucerne Switzerland, Office of Guardianship Authority concerning his daughter's situation. The Guardianship Authority issued an order by letter dated June 21, 2012 to Felder, stating that the "endangerment of [K.W.] can only be avoided by withdrawing your right to determine the place of residence of [K.W.], or concretely the parental custody right.". The Guardianship Authority issued its precautionary decision withdrawing Felder's parental custody rights, ordering that K.W. continue to be hospitalized for further treatment at Children's Hospital and prohibiting Ponder from removing K.W. from the clinic at that time. Ponder then sought and obtained temporary guardianship over K.W. in Essex County Massachusetts Probate and Family Court on June 25, 2012. On June 27, 2012, Felder requested reconsideration of the Guardianship Authority's June 21, 2012 decision withdrawing her custody rights and requested "its complete repeal."

On July 10, 2012, Felder filed a Hague Convention petition for K.W.'s return to Switzerland, claiming the wrongful retention of K.W. under the Hague Convention by Ponder, Wetzel and Children's Hospital The following day, the Swiss Guardianship Authority issued a letter stating that it "always has jurisdiction over child protection matters" but that "since [K.W.] has resided in America for almost one year, this is a matter of international concern ... the authorities at the place of residence of the child have subject-matter jurisdiction...." The letter further stated that "[b]y the decision of June 25, 2012, the Essex Probate and Family Court ... appointed Alexandra Ponder as the preliminary custodian of [K.W.]. The American authorities thus acknowledged their jurisdiction due to residency and ordered the child protection measures they deemed necessary" and that because of that decision "the basis for the continuation of the child protection proceedings by the Lucerne guardianship office ... ceases to exist" and "the precautionary decision [of June 21, 2012] is to be repealed."

The same day the Swiss Guardianship Authority issued this decision, Felder filed an emergency motion to vacate Ponder's guardianship of K.W. in Probate and Family Court, which was denied. In rendering its decision, the Probate and Family Court reasoned that "the best evidence" before it demonstrated that Felder's "custody rights have been withdrawn" and that the last letter by the Guardianship Authority, does not make clear that those rights "had been reinstated."

On July 12, 2012, the District Court of Lucerne in Switzerland dismissed Felder's complaint against the Guardianship Authority regarding its June 21, 2012 ruling. The Court found that "[w]ith the repeal of the precautionary ruling handed down June 21, 2012, the revocation of the complainant's parental custody ordered by the custodianship authorities of Lucerne becomes obsolete. The complainant no longer has any legally protected interests in continuing the proceedings before the Lucerne District Court. This shall not affect any child protection actions offered by the U.S. authorities."

On July 16, 2012, Ponder filed her verified answer in the Federal District Court, and Wetzel moved to dismiss for lack of subject matter jurisdiction. The Court held a hearing on the matter on July 20, 2012.

Felder argued that K.W.'s habitual residence was Switzerland. The Court observed that the  determination of a child's habitual residence "begins with the parents' shared intent or settled purpose regarding their child's residence." Nicolson, 605 F.3d at 104 & n. 2. It was undisputed that K.W. was born and raised in Switzerland and that both of her parents still resided there. K.W. also resided in Switzerland until she came to the United States with her mother's permission to attend school. Felder had custody of K.W. since August 2007 and allowed her to come to the United States to attend Central Catholic in Lawrence, Massachusetts, arranging that Ponder would care for K.W. while she studied here. Shortly after purchasing K.W.'s tickets for travel to the United States in August 2011, Felder booked her return flight to Switzerland for July 12, 2012. She also flew back home to Switzerland in late December between the fall and spring semesters. Based on this record, even focusing, as the Court must, on where the child was habitually resident immediately before the alleged wrongful retention in June 2012, Felder's intent and settled purpose was that K.W.'s habitual residence would remain in Switzerland even as she allowed K.W. to attend school in the United States. Although Ponder and Wetzel claimed that K.W.'s habitual residence was now the United States, the record did not support this contention. Even if the Court credited the Defendants' contention that Felder had acquired a four-year student visa for K.W. to attend school in the United States, such fact did not negate Felder's intent or settled purpose that K.W. would temporarily attend school here but retain a habitual residence in Switzerland. See Poliero v. Centenaro, 373 Fed. Appx. 102, 105-106 (2d Cir.2010) (finding that children's expressed preference for staying in the United States and their schooling for one year in New York did not alter intention that children's habitual residence remain Italy). This was not a case in which "the evidence points unequivocally to the conclusion that the child had become acclimatized to [her] new surroundings and that [her] habitual residence has consequently shifted," Poliero, 373 Fed. Appx. at 105, to the United States. "This is a difficult test to satisfy, and a child's habitual residence will only be found to have shifted due to acclimatization, if the child's relative attachments to the [the two possible habitual residences] have changed to the point where requiring return to the original forum would not be tantamount to taking the child out of the family and social environment in which its life has developed." The evidence here did not not unequivocally demonstrate that K.W.'s acclimatization to the United States had become so complete that returning her to Switzerland would be equivalent to taking her out of a family and social environment in which her life has developed. K.W. returned to Switzerland between the fall and spring semesters to spend time with her Mother and sisters, and there was no suggestion that since returning to the United States for her spring semester, she had not maintained regular contact with her family and friends in Switzerland, despite the allegedly volatile relationship between K.W. and her mother. Thus, it could not be said that K.W.'s habitual residence shifted to the United States.

The Court pointed out that although Felder was granted sole custody of K.W., as part of her divorce decree by the Uster District Court in Switzerland in August 2007, the Swiss Civil Code grants the Guardianship Authority the authority to determine parental custody rights in all matters apart from divorce decrees or modification of same. Under the Swiss Civil Code, the Swiss courts have jurisdiction to amend court orders regarding custody awards and child protection during divorce proceedings, proceeding to alter a divorce decree or in proceedings to modify measures for the protection of the marital union, but "[i]n all other cases jurisdiction lies with the guardianship authorities."Swiss Civil Code, art. 315b. Accordingly, the Guardianship Authority had the power to withdraw parental custody from a parent. Art. 307, 310-312. As of June 21st, the Guardianship Authority took the action that it was empowered to take and revoked Felder's parental custody. However, the Guardianship Authority did take further action after June 21, 2012, but its subsequent rulings did not unequivocally reinstate her custody rights. The Court agreed that the June 21, 2012 decision withdrawing Felder's custody rights over K.W. was a provisional, emergency ruling given the urgent situation involving K.W.'s hospitalization in the United States. The Guardianship Authority's July 11, 2012 letter explained that its previous decision to withdraw Felder's custody rights was based on the information it had at the time that Felder wanted to remove K.W. from the hospital against doctors' recommendations and that at the time of its decision, no Massachusetts court had exercised jurisdiction over the matter to ensure K.W.'s health and safety given the exigency of the situation. The letter explained that because the Probate and Family Court ordered child protection measures for K.W. in appointing Ponder as her temporary guardian on June 25, 2012, after the Guardianship Authority's June 21, 2012 decision, a Massachusetts court had now exercised jurisdiction over the matter, and, as a result, there was no longer a need for the child protection measures the Guardianship Authority had implemented in its June 21, 2012 decision and it repealed that decision. That the Guardianship Authority withdrew its June 21, 2012 order in light of the proceeding in Probate and Family Court, in which Ponder was appointed as a temporary guardian, did not mean that Felder retains her custodial rights. There was no affirmation by the Guardianship Authority of Felder's custody rights even in light of its knowledge of the Probate and Family Court proceedings in which Ponder was appointed as K. W.'s temporary guardian. In the absence of confirmation by the Guardianship Authority that Felder retained her custodial rights, the Court found that Felder failed to show, by a preponderance of evidence, the wrongful retention of K.W. in the United States.

Felder's counsel urged the Court to obtain from Swiss authorities pursuant to Article 15 of the Hague Convention"a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, ...." The Court stated that making such a request is at the discretion of the Court and, given both the emergency nature of the Petition and the rulings of the Guardianship Authority in Switzerland, the last of which deferred to Probate and Family Court's ongoing proceedings regarding K.W., the Court declined to make such request.