In Lozano v. Alvarez, --- F.3d ----, 2012 WL 4479007 (C.A.2 (N.Y.)) the Second Circuit observed that Article 12 of the Hague Convention, the “well-settled” defense, requires that a child wrongfully removed from a country be returned to that country in order to undergo a custody determination, unless the child is "now settled in its new environment." The Second Circuit held that courts cannot equitably toll the one-year period before a parent can raise the now settled defense available under Article 12 of the Convention, and that when making a now settled determination, courts need not give controlling weight to a child's immigration status.
Diana Lucia Montoya Alvarez ("Alvarez") and Manuel Jose Lozano ("Lozano") met and began dating in London in early 2004. [ See In re Lozano, 809 F.Supp.2d 197, 203 (S.D.N.Y.2011).] They never married. From the child's birth on October 21, 2005, until November 19, 2008, Lozano, Alvarez, and the child lived together in London. In October 2008, Alvarez spoke with the child's doctor regarding a host of concerns, including the child's silence at the nursery, frequent crying, nightmares, and bed-wetting. The child's nursery manager also noted the child's unusual behavior and concluded that the "home 'environment obviously had a negative effect upon [her]. Based on the foregoing, the district court found that the child had been exposed to, and negatively affected by, the problems in the couple's relationship. On November 19, 2008, shortly after visiting her sister Maria in New York, Alvarez left the couple's apartment] to bring the child to nursery school and never returned. For the next seven months, Alvarez and the child resided at a women's shelter. In early July of 2009, Alvarez and the child left the United Kingdom, eventually traveling to New York, where they lived since that time. In New York, Alvarez and the child lived with Alvarez's sister Maria, along with Maria's partner, daughter, and granddaughter. Alvarez had not had a job in the United States, but Maria had been employed as a nanny for the same family for four years and her partner owned a grocery business. Because Alvarez and the child had British passports, they were allowed to enter the United States without a visa" for a stay of ninety days or less. This period expired in October 2009. Alvarez testified that she had spoken with immigration authorities about the possibility of being sponsored by Maria, who was a United States citizen.
Since her arrival in New York, the child attended the same school and, at the time of the proceedings before the district court, was enrolled in kindergarten. The child's Academic Standards Reports from the 2009-2010 school year indicated that the child has been making progress both socially and academically. Outside of school, in addition to spending time with members of her extended family, the child had friends whom she met at the park and the library. The child was also enrolled in ballet classes and, on the weekends, attended church with Alvarez. After arriving in New York, both the child and Alvarez began receiving therapy from a psychiatric social worker at a family medical clinic. The therapist testified that "when she first met the child, the child was unable to speak, make eye contact, or play in the therapist's office."The therapist further noted that the child "would wet herself, was hypervigilant, and had a very heightened startle response.” By February 2010, the therapist diagnosed the child with post-traumatic stress disorder ("PTSD") caused by her "experience living in the
United Kingdom before coming to New York, including living in a shelter system, having to move to a new country, and knowing that her mother had been harmed or threatened." Within six months of arriving in New York, however, Alvarez reported that the child's behavior had improved. The therapist agreed with this assessment, describing the child as " 'completely different.'
After Lozano filed his petition for return in December 2010, Alvarez and the child resumed meeting with the therapist. After Alvarez's departure, Lozano took a number of steps to attempt to find his
child. Immediately after Alvarez left, he reached out to her sister in London, who denied any knowledge of Alvarez's whereabouts. In the summer of 2009, Lozano filed an application with a British court to "ensure that he obtains regular contact with his child.". He also, via court filing, submitted orders to Alvarez's sisters and her former counsel, as well as the child's nursery and doctor and various police and government offices, seeking information on the child's whereabouts. After exhausting all possibility that the child was still in the United Kingdom on March 15, 2010, he filed a Central Authority for England and Wales Application Form seeking to have the child returned to the United Kingdom. On November 10, 2010, Lozano filed a Petition for Return of Child in the United States District Court requesting an order requiring that the child be returned to London to have a British court make a custody determination.
The district court first held that Lozano had made out a prima facie case of wrongful retention under the Hague Convention because: (1) the child was a habitual resident of the United Kingdom; (2) Alvarez's unlawful removal of the child breached Lozano's custody rights under English law; and (3) Lozano exercised parental rights at the time the child was removed. The court noted that the child must be returned to the United Kingdom unless Alvarez established an affirmative defense. The district court rejected Alvarez's defense that "there is a grave risk" that the child's return to the United Kingdom would expose her to physical or psychological harm or otherwise place the child in an intolerable situation. However, it found that she had established the “now-settled” defense and denied the petition.
On appeal only the now settled defense was at issue. Lozano argued that the one-year period should be tolled until the time Lozano reasonably could have learned of his child's whereabouts. The district court disagreed, concluding that the one-year period is not a statute of limitations and, therefore, it is not subject to equitable tolling. A petitioner is not barred from bringing a petition after the one-year period has lapsed; rather, after that point, a court must consider the countervailing consideration that the child may now be better served remaining where he or she is currently located. Having rejected Lozano's tolling argument, the district court next held that the now settled defense applied and was a sufficient reason to have a United States court, as opposed to an English court, decide the child's custody.
On appeal, Lozano raised three principal objections to the district court's decision. First, he argued that, as a matter of law, the district court erred in permitting Alvarez to raise the now settled defense because the one-year period in Article 12 should have been equitably tolled until such time as he could have reasonably located his child. Second, Lozano contended that the district court erred in finding that the child was settled in New York despite the fact that neither the child nor her mother had legal status in the United States. Finally, even if lack of legal immigration status "does not preclude a well-settled finding as a matter of law," Lozano argued that "the District Court erred in finding that Alvarez proved by a preponderance of the evidence that the parties' daughter was well-settled in the United States.
The Second Circuit reiterated that in cases arising under the Convention and ICARA, it reviews a district court's factual determinations for clear error." Interpretation of the Convention, however, is an issue of law, which it reviews de novo. It also reviews de novo "the district court's application of the Convention to the facts it has found. It noted that in interpreting a treaty, it is well established that it begins with the text of the treaty and the context in which the written words are used. The clear import of treaty language controls unless application of the words of the treaty according to their obvious meaning effects a result inconsistent with the intent or expectations of its signatories. General rules of statutory construction may be brought to bear on difficult or ambiguous passages, but it also looks beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the signatory parties in determining the meaning of a treaty provision. While the interpretation of a treaty is a question of law for the courts, given the nature of the document and the unique relationships it implicates, the Executive Branch's interpretation of a treaty is entitled to great weight.
The Second Circuit agreed with the district court and held that while an abducting parent's conduct may be taken into account when deciding whether a child is settled in his or her new environment, the one-year period set out in Article 12 is not subject to equitable tolling. Neither Article 12 of the Hague Convention nor its implementing legislation, ICARA, explicitly permit or prohibit tolling of the one-year period before a parent can raise the now settled defense. Article 12 provides, in relevant part: Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the proceeding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.
Accordingly, the default presumption under the Convention is that a child shall be returned to the state from which she originally was wrongfully removed unless both of two conditions are met: (1) one year has elapsed between the date of wrongful removal and the date proceedings commence; and (2) the child is found to be "now settled in its new environment." Even if these two conditions are met, Article 12 does not bar the Central Authority of a Contracting State from ordering the return of a settled child. If more than one year has passed, a demonstration that the child is now settled in its new environment' may be a sufficient ground for refusing to order repatriation." Thus, while the text of Article 12 does not prohibit equitable tolling, the way the provision functions renders this sort of equitable relief unnecessary. Unlike a statute of limitations prohibiting a parent from filing a return petition after a year has expired, the settled defense merely permits courts to consider the interests of a child who has been in a new environment for more than a year before ordering that child to be returned to her country of habitual residency. This interpretation of Article 12 was bolstered by Article 18, which provides that none of the provisions in the Convention "limit the power of a judicial or administrative authority to order the return of the child at any time."Convention. The Convention's drafting history strongly supported Alvarez's position that the one-year period in Article 12 was designed to allow courts to take into account a child's interest in remaining in the country to which she has been abducted after a certain amount of time has passed. If this understanding of the second paragraph of Article 12 was correct, allowing equitable tolling of the one-year period would undermine its purpose.
After the Second Circuit determined that the district court properly permitted Alvarez to raise the Article 12 now settled defense, it considered whether the district court erred in finding the child to be settled in New York. Lozano primarily argued that "[w]here an abducted child resides in the abducted-to country illegally, a well-settled finding should be barred as a matter of law." Given the Convention's text and purpose, the Second Circuit held that immigration status should only be one of many factors courts take into account when deciding if a child is settled within the meaning of Article 12.
Additionally, it held that, in any given case, the weight to be ascribed to a child's immigration status will necessarily vary. Neither the Convention nor ICARA defines "settled" or states how a child's
settlement is to be proved. It held that "settled" should be viewed to mean that the child has significant emotional and physical connections demonstrating security, stability, and permanence in its new environment. In making this determination, a court may consider any factor relevant to a child's connection to his living arrangement. Such an approach is in line with the Convention's overarching focus on a child's practical well-being. Factors that courts consider should generally include: (1) the age of the child; (2) the stability of the child's residence in the new environment; (3) whether the child attends school or day care consistently; (4) whether the child attends church [or participates in other community or extracurricular school activities] regularly; (5) the respondent's employment and financial stability; (6) whether the child has friends and relatives in the new area; and (7) the immigration status of the child and the respondent.
The Second Circuit rejected Lozano’s contention that the district court erred because it discounted the significance of the child's lack of immigration status once it found that the child did not face an immediate threat of deportation. For example, a child might be ineligible for certain government-conferred benefits. It noted that the importance of a child's immigration status will inevitably vary for innumerable reasons, including: the likelihood that the child will be able to acquire legal status or otherwise remain in the United States, the child's age, and the extent to which the child will be harmed by her inability to receive certain government benefits. Moreover, rather than
considering the weight to be given to a child's immigration status in the abstract, courts deciding whether a child is settled must simultaneously balance many factors which, as in this case, may not support the same determination.
The Court found that the district court's analysis was largely compatible with the approach it prescribed Lozano contended that the district court's finding were not backed by a preponderance of the evidence because "most of the evidence on the well-settled issue should not be given much weight because it came from [Alvarez's] own self-interested hearsay testimony, and to a lesser extent, from the therapist and child's school records.". Relatedly, Lozano claimed that Alvarez should have provided "corroborating testimony ... and other evidence of the child's connections to her new environment ." .These arguments were rejected.. None of Lozano's challenges to these findings left the Court with a definite and firm conviction that a mistake has been committed. The judgment of the district court was affirmed.
Tuesday, October 2, 2012
Monday, October 1, 2012
Felder v. Wetzel, --- F.3d ----, 2012 WL 4465591 (C.A.1 (Mass.)) [Switzerland][Rights of Custody]
In Felder v. Wetzel, --- F.3d ----, 2012 WL 4465591 (C.A.1 (Mass.)) on May 19, 2012, K.W., a fourteen-year-old Swiss citizen, attempted to harm herself by ingesting pills while living in the United States with her godmother, Alexandra Ponder. She was then hospitalized at Children's Hospital Boston. On June 7, 2012, the Hospital declined to release K.W. to her mother, petitioner Claudia Felder, a Swiss resident, absent evidence such a release would comply with the child's treatment plan. It was undisputed that the mother had full custody of her daughter K.W. and that Switzerland was the country of habitual residence. Before these medical events Felder had signed an "Authorization for Medical Treatment of [K.W.]" giving "my authorization and consent for Alexandra Ponder to authorize necessary medical or dental care for this child." The form stated that Felder was the parent and legal guardian, and the authorization was limited. This was done because K.W. was attending school in Massachusetts in the Fall of 2011. Felder bought K.W. a July 12, 2012 return ticket to Switzerland at the end of the school year. K.W. flew back to Switzerland for the holiday break and then returned to Massachusetts on January 3, 2012.
Felder's Hague Convention petition stated that "on or about May 19, 2012 ... KW stated that she tried to hurt herself by ingesting certain medications belonging to Ponder." K.W. was initially taken to the emergency room at Holy Family Hospital in Methuen, Massachusetts, but was then transferred to the inpatient psychiatric unit of Boston Children's Hospital on May 23, 2012. Ponder informed Felder of K.W.'s hospitalization and Felder agreed that K.W. should receive immediate medical care; during the next three weeks, Felder monitored K.W.'s progress via Ponder and the staff at the Hospital while consulting with Swiss medical professionals. After K.W. had been hospitalized for three weeks, Felder and Dr. Andreas Schmidt, K.W.'s Swiss physician, proposed to the staff of the Hospital that K.W. be transferred to Zurich for further treatment. Felder's petition stated that she and Schmidt advised the staff at the Hospital that "they would take responsibility for KW's health and safety and would both personally accompany KW back to Switzerland."
On June 7, 2012, a social worker at the Hospital contacted Felder and advised her that the Hospital would not permit K.W.'s immediate return to Switzerland. On June 11, 2012, Hospital staff sent an email to Dr. Daniel Marti of the Kinderspital Zurich outlining the conditions under which K.W. could be safely returned to Switzerland. Felder contended that, at about this time, "Ponder stopped providing Mother with information about her daughter and, in conjunction with the staff at the Hospital,
prevented Mother and KW's sisters from having contact with KW." On June 17, 2012,
Felder told Ponder that she was terminating the medical authorization for K.W. she had signed. On June 20, 2012, Felder traveled to Boston and again told Ponder that she was revoking Ponder's authorization for medical care. Felder alleged that she did not know that K.W.'s father, Wetzel, had by this time filed an ex parte petition as to K.W. in the Guardianship Authority of the City of Lucerne. The Guardianship Authority may take appropriate measures to protect a child's welfare. See id. arts. 307, 315a.
On June 21, 2012, the Swiss Authority ex parte issued a precautionary order to Felder saying that "[a]t present, the existing endangerment of your daughter can only be avoided by withdrawing your right to determine the place of residence of [K.W.] or concretely the parental custody right."The order prohibited Felder from removing K.W. from the Hospital clinic and said she would be given a full hearing later. On June 25, 2012, Ponder filed a motion to be appointed as K.W.'s temporary guardian with the Essex Division of the Probate and Family Court of the Commonwealth of Massachusetts. Ponder's motion was made with the consent of K.W.'s non-custodial biological father, Patrick Wetzel. Felder did not appear. The state Family Court acted based on Ponder's representations. On June 25, 2012, the state Family Court appointed Ponder as K.W.'s guardian until September 24, 2012, a date that had since been extended to October 26, 2012. On July 10, 2012, Felder filed her petition under the Hague Convention in federal district court. Respondents Ponder and Wetzel, in addition to seeking the dismissal of Felder's petition, raised two Article 13 defenses under the Convention: that K.W.'s return to Switzerland would present a grave risk of harm to her, and that K.W. was of sufficient age and maturity that her objections to being returned to Switzerland should be heeded. Felder had by this time also sought recourse from the Swiss Guardianship Authority. On July 11, 2012, the Swiss Authority issued a "Decree" subtitled "Repeal of precautionary order of June 21, 2012," in which it observed that by "letter dated June 27, 2012, the biological mother ... requested reconsideration of the precautionary decision of June 21, 2012 and its complete repeal." The decree did in fact repeal the
precautionary order, with an explanation. On July 11, 2012, Felder filed an "Emergency Motion by Mother Claudia Felder to Vacate Temporary Guardianship" in the Massachusetts Family Court. Apparently, K.W. had been discharged from the Hospital and was staying with Ponder. At the close of the hearing, the Family Court "enter[ed] a finding, that the most recent order from the Swiss courts [i.e., the June 21, 2012 precautionary injunction], quote, withdraws mother's custody rights" and stated that "it is not clear to me ... that it is-it had been reinstated."Explaining that "I have to do what's in [K.W.'s] best interest and right now, I need to preserve the status quo," the court, in a handwritten order, denied Felder's emergency petition "pending the hearing in Federal Court." On July 2, 2012, Felder had also filed a court complaint in Switzerland seeking to reverse the Guardianship Authority's June 21, 2012 precautionary order. The July 11, 2012 decree was issued in the interim. On July 12, 2012 the District Court of Lucerne ruled on Felder's petition, concluding that "[w]ith the [Authority's] 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."
On July 20, 2012, the federal court conducted oral argument on Wetzel's motion to dismiss Felder's petition under the Convention but did not take evidence. On July 30, 2012, the federal district court dismissed Felder's petition. Felder, 2012 WL 3128570, at *1. The district court concluded that K.W.'s state of habitual residence was Switzerland. It looked to Swiss law and the orders of the Swiss authorities to determine that "as of June 21st, the Guardianship Authority took the action that it was empowered to take and revoked Felder's parental custody," and that "the Guardianship Authority's subsequent rulings did not unequivocally reinstate her custody rights," The district court reasoned that "the one authority, the Guardianship Authority, that has the power to determine custody rights, did not decline to take further action, but instead deferred to the actions of the Probate and Family Court in the United States." The court concluded that "Felder has failed to show, by a preponderance of the evidence, the wrongful retention of K.W. in the United States."
The First Circuit reversed. It observed that the district court's reasoning in dismissing Felder's petition was based on its reading of the various orders of the Swiss authorities and court. It concluded that these orders were not designed to nor did they terminate the mother's rights. It analyzed each order and reached the conclusion that there was an attempt to do no more than cope with an emergency situation as to K.W., which the Guardianship Authority concluded required prompt action and which was better not taken from abroad, but immediately addressed by courts, doctors, and others concerned on the scene. The first Swiss Authority order, the June 21, 2012 order, was, as it stated, only a "precautionary injunction"; it was ex parte and in the nature of a temporary emergency order. The June 25, 2012 Guardianship Authority letter to the Hospital explained its June 21, 2012 order as being based on "the [present] urgent need for action" and a fear the American authorities would otherwise not act as needed in the best interests of the child. In light of the emergency nature of the measures taken, it would be incorrect to conclude that these decisions decisively and permanently altered Felder's custody rights over K.W. under Swiss law. They did not strip Felder of her right under the Convention to seek K.W.'s return and to have custody over her child decided by K.W .'s state of habitual residence. It was clear from the Swiss Guardianship Authority's July 11, 2012 decree that the prior order, the Authority's June 21, 2012 temporary revocation of some of Felder's custody rights, had itself been revoked. The decree expressly stated that: * Felder is "entitled to custody" of K.W.; both Felder and K .W. reside in Switzerland. This reading was strongly buttressed by the authoritative Swiss District Court's July 12, 2012 order dismissing Felder's complaint that the June 21, 2012 precautionary order should be reversed. The Lucerne District Court's July 12, 2012 order stated that "the revocation of the complainant's parental custody ordered by the custodianship authorities of Lucerne [has] become[ ] obsolete. The complainant no longer has any legally protected interests in continuing the proceedings before the Lucerne District Court." These later orders established that as of July 12, 2012, any temporary revocation by the Swiss authorities of some of Felder's custody rights over K.W. had itself been revoked. Felder had custody rights under the Convention.
Two defenses were raised under Article 13 of the Convention: (1) that K.W .'s return to Switzerland would present a grave risk of harm to her, and (2) that K.W. was of sufficient age and maturity (she was almost fifteen) that her objections to being returned to Switzerland had to be heeded. The First Circuit directed that these exceptions to return, must be heard on remand. It reversed the dismissal of Felder's petition under the Convention, reinstated the case, and remanded for further proceedings consistent with its opinion.
Saturday, September 22, 2012
Reyes v Jeffcoat, 2012 WL 4009641 (D.S.C.) [Venezuela] [Federal & State Judicial Remedies] [Evidence]
In Reyes v Jeffcoat, 2012 WL 4009641 (D.S.C.) Maritza Meszaros Reyes, filed a petition seeking a declaration that respondent, Harry Lee Langford Jeffcoat,
had wrongfully retained the parties' two minor children in the United States and that
Venezuela, not the United States, was the "habitual residence" of the children pursuant to the Hague Convention. In an order dated June 27, 2012, the court disagreed with the petitioner, determining that the respondent had not wrongfully retained the children and that the United States was the habitual residence of the children involved in this case.
After the court rendered its decision adversely to the petitioner, the petitioner filed a
motion to alter or amend the judgment on the ground that the court had neglected to rule upon one set of evidentiary submissions advanced by the petitioner during her case-in-chief. The court now made an order memorializing the court's ruling on the
disputed evidence.
Near the end of her case-in-chief, the petitioner offered "the amended verified
petition" in evidence. Respondent objected, arguing that "it contains hearsay within hearsay." Petitioner's counsel argued that "under the Hague Convention and under ICARA, the petition and the attachments were admissible." Respondent argued that the Hague Convention merely provides for a waiver of all authentication requirements but does not render documents admissible, without further inquiry simply because they are attached to the petition filed under the Hague Convention. The Court rejected the Petitioner’s argument and held that in any event, had the evidence been admitted, it would not have affected this court's ultimate conclusion in the case.
The Court concluded that respondent was correct as to the legal matter presented. ICARA provides that documents attached to the Hague Convention petition need not be authenticated, but it does not indicate that all such documents are therefore automatically admissible. And, while it could be argued that the emails between the parties would be admissible in any event either as an admission by a party opponent or a hearsay statement admissible under the state of mind exception of Rule 803(3), there were other portions of the email that contained hearsay within hearsay, and the court was not aware of any authority that would admit these second level hearsay statements. Accordingly, the respondent's objection to the documents attached to the verified amended petition was sustained.
Sunday, September 9, 2012
Tlustochowicz v. Tlustochowicz, 2012 WL 3779071 (N.D.Ill.) [Poland][Article 15] [Habitual Residence]
In Tlustochowicz v. Tlustochowicz, 2012 WL 3779071 (N.D.Ill.) on September 22, 2011, Respondent Emilia Tlustochowicz left Illinois for Poland, taking along her child without the consent of Petitioner Marcin Tlustochowicz, who was Emilia's husband and the child's father. Marcin brought a petition in the Regional Court for Szczecin Prawobrzeze and Zachod, in the Republic of Poland, seeking return of the child to the United States pursuant to the Hague Convention. Article 15 of the Convention permits a court of a nation that is party to the Convention to "request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention." Convention Art. 15; see Sorenson v. Sorenson, 563 F.Supp.2d 961 (D.Minn.2008), aff'd, 559 F.3d 871 (8th Cir.2009). On April 12, 2012, the Polish court issued an Article 15 order requesting Marcin "to submit [to] the authorities of the state of the habitual residence of the child a decision or other determination that the removal of a minor child [first name] Tlustochowicz was wrongful within the meaning of Article 3 of the Convention." On July 11, 2012, Marcin filed an Article 15 petition with the court. The Court reiterated that Article 15 was strictly limited to determining whether the removal was wrongful under Article 3. Any further proceedings that may be necessary under the Convention, including any affirmative defenses Emilia could wish to assert, were beyond the scope of the Polish court's referral to this court and are reserved for the Polish court to consider as it deems fit. (Citing Khan v. Fatima, 680 F.3d 781, 784 (7th Cir.2012); Altamiranda Vale v. Avila, 538 F.3d 581, 587 (7th Cir.2008); Fabri v. Pritikin-Fabri, 221 F.Supp.2d 859, 863-64 (N.D.Ill.2001). Marcin was born in Poland in 1972 and moved to the United States in 1992. Although he initially came to the United States to study, he decided soon thereafter to remain permanently. He was a dual citizen of the United States and Poland. Emilia was born in Poland in 1979. She was a Polish citizen and a permanent resident of the United States. Marcin and Emilia met in Poland in November 2008 when Marcin was there visiting members of his family. Marcin and Emilia were married in a religious ceremony in Poland in November 2009, followed by a civil ceremony in Illinois in December 2009. The purpose of the civil ceremony was to facilitate Emilia's becoming a permanent resident of the United States. In December 2009, Marcin and Emilia settled together at the house Marcin owned in Plainfield, Illinois. Emilia brought with her from Poland to Illinois several heavy suitcases containing many of her possessions and personal effects, including the majority of her photographs and of the wedding gifts the couple received. Both Marcin and Emilia agreed and intended to live together in Illinois. After going through the application process with Marcin's assistance, Emilia became a permanent resident of the United States in May 2010. On December 30, 2010, the child was born to Marcin and Emilia in Naperville, Illinois. The child was a citizen of both the United States and Poland. Marcin assisted with the care of the child, would feed and play with the child, and would purchase items for the child. From mid-July to September 7, 2011, Emilia and the child took a vacation to Poland to visit Emilia's family, while Marcin remained in the United States. Marcin paid for the trip by purchasing a round-trip ticket for Emilia. Both Marcin and Emilia viewed the trip to Poland as a temporary vacation; neither intended that Emilia or the child would remain in Poland permanently or indefinitely. Emilia and the child returned to Illinois on September 7, 2011. Around that time, Marcin and Emilia discussed buying a new house closer to Marcin's workplace to reduce his commute to work, which at that point exceeded two hours daily. Emilia preferred not to move because she had recently become accustomed to the Plainfield neighborhood in which they then lived and did not want to have to become accustomed to a new neighborhood. Also around that time, Marcin and Emilia discussed buying a new car for Emilia, and Marcin bought Emilia a new car, a station wagon, which Emilia drove. On September 9, 2011, Emilia sent an email to Marcin. Although the email addressed an apparent disagreement between the couple regarding how the child would be fed, the email was very affectionate and provided no indication that Emilia had any intention to return to Poland permanently or indefinitely either alone or with the child. On or around September 13, 2011, Emilia contacted her parents, who lived in Poland, and asked them to buy her a plane ticket to return to Poland. Emilia's motivation in leaving Illinois was strife she was experiencing in her marital relationship with Marcin. Emilia did not inform Marcin of her desire and intent to return to Poland permanently or indefinitely at any time prior to her departure on September 22, 2011. Using a ticket purchased by her parents, Emilia left for Poland on September 22, 2011, taking the child with her. Marcin never consented to Emilia's taking the child back to Poland. Had Marcin been aware of Emilia's plan to take the child to Poland, he would not have consented. When Marcin returned from work on September 22, he discovered a letter from Emilia informing him that she had decided to leave. The following morning he received a text message from Emilia informing him that she had arrived in Poland with the child. These were the first indications that Marcin received that Emilia no longer intended to live with him and raise their child in Illinois. Marcin soon consulted the U.S. State Department website for advice on regaining custody of the child. Marcin reported the child missing to local authorities on September 23, 2011. Marcin had multiple contacts with Emilia in the months after she arrived in Poland by phone and over the internet. Marcin visited Emilia and the child in Poland and attempted to persuade Emilia to return. Marcin filed a petition with the Polish courts to have the child returned to Illinois pursuant to the Convention. That petition precipitated the reference by the Polish court of the Article 3 determination to the United States courts. Emilia and the child remained in Poland as of August 31, 2012. The District court found that Emilia removed the child from Illinois to Poland on September 22, 2011 and that Illinois was the child's habitual residence immediately prior to the removal. It observed that the determination of 'habitual residence' is to be made on the basis of the everyday meaning of these words rather than the legal meaning that a particular jurisdiction attaches to them. Kijowska v. Haines, 463 F.3d 583, 586 (7th Cir.2006). The Seventh Circuit approved the standard set forth in Mozes v. Mozes, 239 F.3d 1067 (9th Cir.2001). Koch v. Koch, 450 F.3d 703, 715 (7th Cir.2006) In the case of young children, the Mozes court found it most prudent to focus on the intent of the parents rather than the intent of the child in determining the child's habitual residence. The standard requires courts to determine whether the parents intended to abandon their previous habitual residence, judging that intent at the last time the parents had a shared intent. The establishment of a habitual residence requires an actual change in geography, as well as the passage of an appreciable amount of time." The facts showed that when Marcin and Emilia married and moved to Illinois, they intended to live together in Illinois on a permanent or long-term basis. Emilia brought several suitcases worth of possessions and personal effects to the United States and moved into Marcin's house; she and Marcin also began the application process that culminated in her receiving United States permanent resident status. Their intent had not changed as of December 2010, when they had been in the United States for a year and Emilia gave birth to the child. And Emilia and the child's vacation to Poland in the summer of 2011 only confirmed that Marcin and Emilia still both intended to stay in the United States and raise the child there: Marcin bought Emilia a round-trip ticket and stayed behind, and when the length of the trip was extended, the extension was short (about a week) rather than lengthy or indeterminate. When Emilia returned on September 7, she and Marcin discussed buying and moving to a new house, also in Illinois, and actually bought a new car for Emilia-further indications that they shared an intent to remain permanently with the child in the United States. And Emilia's September 9 email to Marcin was affectionate and offered no suggestion of any intent or desire to return with the child to Poland permanently or indefinitely. Emilia's intent changed around September 13, when troubles in her marital relationship led her to ask her parents to help fly her back to Poland. At that point, the parents' intent regarding the child's habitual residence was no longer shared, for Marcin still intended and expected that the family would remain in Illinois. Thus, the parents' last shared intent was that the child's habitual residence be the United States. Emilia of course could not change the child's habitual residence by unilaterally removing him to Poland; as the Seventh Circuit has held, a parent cannot create a new 'habitual residence' by the wrongful removal and sequestering of a child. The court held that Marcin had rights of custody over the child under Illinois law at the time of the removal. At the time of removal, there had been no court or administrative order concerning custody of the child. The Illinois Probate Act provided at the time of the child's birth, as follows: Parental rights to custody. If both parents of a minor are living and are competent to transact their own business and are fit persons, they are entitled to the custody of the person of the minor and the direction of his education.... The parents have equal powers, rights and duties concerning the minor. 755 ILCS 5/11-7 (2010). When the child was born Marcin indisputably had legal custody of the child, together with Emilia. Emilia noted that this provision was repealed effective January 1, 2011, months before the child's removal to Poland, see Illinois Pub. Act 96-1338, s 10, and argued that its repeal meant that Marcin had lost legal custody of the child as of the date the child was removed to Poland. The argument was wholly without merit. The court held that Illinois law gave Marcin and Emilia custody rights over the child as of the time of removal. The court held that Emilia's removal of the child from Illinois to Poland was in breach of Marcin's custody rights. Emilia took the child to Poland without obtaining consent from or even notifying Marcin, and her intent in doing so was to deprive Marcin of the ability to exercise his right of custody. It held that Marcin exercised and sought to exercise his rights of custody as of the time of removal. Prior to and after the child's birth, Marcin took part in his upbringing by reading books on child -rearing, attending parenting classes with Emilia, and taking time off from work to help care for the newborn. Prior to the removal, Marcin cared for the child by acting as his father. Immediately following the removal, Marcin filed a missing person report and initiating a police investigation, and he continued seeking to regain custody by visiting Emilia, attempting to persuade her to return, and filing his Hague Convention petition. Given these facts, Marcin was exercising his custody rights at the time of removal and thereafter attempted to restore his custody over the child. Given these circumstances, Emilia's removal of the child to Poland was "wrongful" within the meaning of Article 3 of the Convention. See Kijowska, 463 F.3d at 588; Feder v. Evans-Feder, 63 F.3d 217, 222-26 (3d Cir.1995).
Demaj v. Sakaj, Slip Copy, 2012 WL 3822015 (D.Conn.) [Federal and State Judicial Remedies] [Evidence of Parental Alienation]
In Demaj v. Sakaj, 2012 WL 3822015 (D.Conn.) respondent moved to exclude any testimony or other evidence relating to "parental alienation syndrome," in that "[d]isclosures by ...Petitioner as to the testimony expected from Dr. Benjamin Garber indicate that he will testify about the concept of parental alienation syndrome."
The District Court observed that under ICARA and the Hague Convention, there was not one published decision that relied to any degree on the "parental alienation syndrome." It concluded that "parental alienation" was not, and will not be, permitted.
The Court pointed out that in Karkkainen v. Kovalchuk, 445 F.2d 280, 288 (3d Cir.2006), the petitioner-mother argued on appeal that the district court had abused its discretion by appointing an expert to evaluate the daughter's "level of maturity [who] lacked sufficient experience in 'parental alienation syndrome.' " The petitioner-mother contended that her daughter's desires to remain permanently in the United States were the result of the respondent-father and his second wife having alienated the child from the petitioner, including referring to her as the child's aunt. The issue of parental alienation was irrelevant because the district court held that the United States was the child's habitual residence.
Similarly, in Haimdas v. Haimdas, 720 F.Supp. 183, 207, n. 17 (E.D.N.Y.), aff'd on other grounds, 401 Fed. Appx. 567 (2d Cir.2010), the district court categorically rejected the report and testimony of the petitioner-mother's expert regarding the children's maturity level and any other matter in controversy giving the report and testimony no weight. The district judge described the expert's opinions regarding the potentially distorting effects of the protracted custody battle, parental alienation and ping-pong lifestyle that A.H. and S.H. have experienced, as well as their notable verbal abilities and overall intelligence, essentially confirmed the obvious. The district court observed, Frankly, short of opining as to a mental or emotional pathology, it is hard to fathom what a child psychologist in a Hague Convention case could opine that is not already within the ken of an ordinary finder of fact.
In Garcia v. Angarita, 440 F.Supp.2d 1364,1368 (S.D . Fla.2006), like here, the court had ordered a psychological evaluation of the child, which report the petitioner-father introduced into evidence. In this report, the expert opined, in rejecting the respondent-mother's defense of grave risk, that any psychological harm to their son would be reduced by the close relationship the children with his paternal relatives, and the "support system" that the petitioner-father had in Colombia. The Court
observed that: "Significantly, Respondent is in a position to greatly reduce this risk, if she so chooses, by discontinuing the activities which [the expert] believes have resulted in a degree of parental alienation toward Petitioner, and if Respondent returns with the children to Colombia." The issue of parental alienation was hardly the central focus of that trial.
Tuesday, August 28, 2012
Duran v Beaumont, 130 S Ct 3318, 176 L Ed 2d 1216 [2010][Chile] [Rights of Custody]
In Duran v Beaumont, 130 S Ct 3318, 176 L Ed 2d 1216 [2010] on petition for writ of certiorari to the United States Court of Appeals for the Second Circuit, the Petition for a writ of certiorari was granted. The judgment was vacated, and case was remanded to the United States Court of Appeals for the Second Circuit for further consideration in light of Abbott v. Abbott, 560 U.S. ––––, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010)
Monday, August 27, 2012
Holmes v Holmes, --- F.Supp.2d ----, 2012 WL 3610218 (E.D.Mich.)[Ireland] [Habitual Residence]
In Holmes v Holmes, --- F.Supp.2d ----, 2012 WL 3610218 (E.D.Mich.) Plaintiff Michael Holmes was a citizen and resident of the Republic of Ireland. Defendant Angela T. Holmes was a citizen and resident of the United States. Mr. Holmes and Ms. Holmes were the parents of a daughter. They married in the United States on February 9, 2011, about a month and a half after meeting for the first time. About a month after the couple married, they found out they were pregnant. The couple decided that they would move to Ireland, largely based on the fact that Ms. Holmes had no health insurance in the United States and would receive healthcare benefits in Ireland. Their daughter was born on December 11, 2011 in Ireland. On February 6, 2012, at Defendant Angela Holmes' request, the Irish police were called. She reported spousal abuse. A nurse and social worker took Ms. Holmes and child to a safe house in Ireland. On February 15, 2012, Ms. Holmes brought the child to the United States without Mr. Holmes' permission.
The District Court concluded that Mr. Holmes had not shown that Ireland was the child's habitual residence by a preponderance of the evidence and denied the petition. It observed that a child's habitual residence is the place where she has been physically present for an amount of time sufficient for acclimatization and which has a 'degree of settled purpose' from the child's perspective. A determination of whether any particular place satisfies this standard must focus on the child and consists of an analysis of the child's circumstances in that place and the parents' present, shared intentions regarding their child's presence there. Feder -Evans v Feder, 63 F.3d at 224. The child was only two-months-old when she was removed from Ireland. The child was still nursing. The couple's infant, two-month-old, child did not acquire a habitual residence in Ireland before her mother relocated her to the United States. See Delvoye v. Lee, 329 F.3d 330, 332 (3d Cir.2003) (finding that a two-month-old infant, who is still nursing, has not been present long enough to have an acclimatization apart from his parents). Because the child was too young to have acclimated itself to its surroundings, the Court considered the intentions of the parents as factors in determining whether there was a habitual residence for the child. The evidence did not support a finding that Ireland was the intended long-term residence of the parents.
It was undisputed that the couple moved to Ireland to receive healthcare for the mother and child during birth. It was also undisputed that neither the mother or the father had a job in Ireland. They did not own a home in Ireland. They were renting a place to live, and the lease was to end in June. They essentially had no family support in Ireland because Mr. Holmes was estranged from his family. This was admitted by Mr. Holmes and also supported by his brother's testimony and Ms. Holmes' testimony. The couple did, however, receive financial support and emotional support from Ms. Holmes' family in the United States. The parties disagreed as to their intent to stay in Ireland long-term. Mr. Holmes maintained that they only agreed to move to Ireland temporarily and had planned on moving back to the United States. Ms. Holmes testified that they discussed moving back but the discussion was simply a possibility and not set in stone. Mr. Holmes' own testimony and Skype conversation transcript supports this notion-that the couple was not committed to staying in Ireland. Also supporting the claim that the move was not permanent was the fact that Mr. Holmes left behind tools in the United States that he used for his trade. If they intended on moving permanently, it did not seem likely that he would have left behind tools needed to make a living. The couple also completed a Petition for Alien Relative, I-130, from the U.S. Citizen and Immigration Services. Although it was never submitted, this application shows that the couple was not necessarily committed to staying in Ireland long-term. They had been in Ireland for less than a year and were already filling out paperwork to return to the United States. Ms. Holmes' assertion was supported by her own testimony, which the Court found to be credible. The evidence presented in the form of testimony and exhibits supported Ms. Holmes' assertion that the move to Ireland was temporary. Therefore, the Court found that the child did not have a habitual residence in Ireland.
The District Court concluded that Mr. Holmes had not shown that Ireland was the child's habitual residence by a preponderance of the evidence and denied the petition. It observed that a child's habitual residence is the place where she has been physically present for an amount of time sufficient for acclimatization and which has a 'degree of settled purpose' from the child's perspective. A determination of whether any particular place satisfies this standard must focus on the child and consists of an analysis of the child's circumstances in that place and the parents' present, shared intentions regarding their child's presence there. Feder -Evans v Feder, 63 F.3d at 224. The child was only two-months-old when she was removed from Ireland. The child was still nursing. The couple's infant, two-month-old, child did not acquire a habitual residence in Ireland before her mother relocated her to the United States. See Delvoye v. Lee, 329 F.3d 330, 332 (3d Cir.2003) (finding that a two-month-old infant, who is still nursing, has not been present long enough to have an acclimatization apart from his parents). Because the child was too young to have acclimated itself to its surroundings, the Court considered the intentions of the parents as factors in determining whether there was a habitual residence for the child. The evidence did not support a finding that Ireland was the intended long-term residence of the parents.
It was undisputed that the couple moved to Ireland to receive healthcare for the mother and child during birth. It was also undisputed that neither the mother or the father had a job in Ireland. They did not own a home in Ireland. They were renting a place to live, and the lease was to end in June. They essentially had no family support in Ireland because Mr. Holmes was estranged from his family. This was admitted by Mr. Holmes and also supported by his brother's testimony and Ms. Holmes' testimony. The couple did, however, receive financial support and emotional support from Ms. Holmes' family in the United States. The parties disagreed as to their intent to stay in Ireland long-term. Mr. Holmes maintained that they only agreed to move to Ireland temporarily and had planned on moving back to the United States. Ms. Holmes testified that they discussed moving back but the discussion was simply a possibility and not set in stone. Mr. Holmes' own testimony and Skype conversation transcript supports this notion-that the couple was not committed to staying in Ireland. Also supporting the claim that the move was not permanent was the fact that Mr. Holmes left behind tools in the United States that he used for his trade. If they intended on moving permanently, it did not seem likely that he would have left behind tools needed to make a living. The couple also completed a Petition for Alien Relative, I-130, from the U.S. Citizen and Immigration Services. Although it was never submitted, this application shows that the couple was not necessarily committed to staying in Ireland long-term. They had been in Ireland for less than a year and were already filling out paperwork to return to the United States. Ms. Holmes' assertion was supported by her own testimony, which the Court found to be credible. The evidence presented in the form of testimony and exhibits supported Ms. Holmes' assertion that the move to Ireland was temporary. Therefore, the Court found that the child did not have a habitual residence in Ireland.
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 (1st 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.
Friday, August 17, 2012
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.
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