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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Larbie v Larbie, --- F.3d ----, 2012 WL 3089773 (C.A.5 (Tex.) [United Kingdom] [Moot Appeal ][Consent and Acquiescence] [Habitual Residence]

In Larbie v Larbie, --- F.3d ----, 2012 WL 3089773 (C.A.5 (Tex.) Plaintiff-Appellee Evelyn Larbie filed a petition under the Hague Convention seeking the return of her son, K.L., to the United Kingdom. The district court granted Evelyn's petition and ordered Defendant Derek Larbie to turn K.L. over to Evelyn's care. The Fifth Circuit Court of Appeals found that district court's application of the Convention effectively reversed a custody order entered after lengthy proceedings, culminating in a final divorce and custody order, in which neither party objected to the state court's jurisdiction, creating precisely the type of international custody dispute that  the Convention seeks to avoid. Accordingly, it vacated the district court's order and rendered judgment in Derek's favor.

 Derek and Evelyn were Ghanian nationals. Derek obtained naturalized citizenship in the United States and served as an officer in the United States Air Force. Evelyn possessed permanent residency in the U.K. They married in December 2005. They lived in San Antonio, Texas. K.L. was born in August 2006. Derek had a son from a previous relationship. Derek sponsored Evelyn for a "green card," which expired on June 27, 2009. Although Evelyn held a temporary work permit, she stayed home to care for K.L. In March 2008, Derek filed for divorce in Texas state court. Shortly thereafter, Derek received orders to report in June for two months of training in preparation for a deployment to Afghanistan. Evelyn responded to Derek's divorce petition by answer and counter petition. In her counter petition she asserted that she had been domiciled in Texas for at least six months and that she had resided in San Antonio for at least ninety days before the suit commenced. She also specified that no other court had jurisdiction over K.L. Given Derek's impending overseas assignment, the Larbies entered into an agreed temporary divorce decree on June 11, 2008 which appointed Derek and Evelyn "Temporary Joint Managing Conservators" of K.L. and entered a "Standard Possession Order" outlining how the parties would spend time with him. The Temporary Order also gave Evelyn the authority to determine K.L.'s residence "without regard to geographic location." However, it also provided that "[i]n the event that [K.L.] [was] to travel internationally," Evelyn had to inform Derek of the dates and location of such travel, the identity of those persons with whom K.L. was staying, and the telephone numbers at which K.L. could be reached "while [he was] traveling." The Temporary Order ordered Evelyn to allow K.L. "weekly" visits with Derek's other son, and provided that various provisions were operative only so long as the "case [was] pending." On the same day the parties agreed to the Temporary Order, the Court granted Derek’s motion to stay the proceedings pursuant to the Service members Civil Relief Act,"until Sept. 1, 2009 or until such time as [he] return [ed] to Lackland Air Force Base at the conclusion of [his] deployment. It granted Derek's motion to stay and entered the Temporary Order on July 23 and 24, 2008, respectively. The Temporary Order specified that it was to "continue in force until the signing of the Final Decree of Divorce or until further order of th[e] Court."

 A few weeks after Derek left for training, Evelyn bought a plane ticket to travel to London on July 12th. Evelyn took only what was "permissible on the aircraft," leaving behind "substantially all" of her and K.L.'s "clothing and personal effects" and giving no indication that the trip was anything other than temporary. She and Derek exchanged e-mails that indicated her intent to return to San Antonio. Derek deployed to Afghanistan. Although Evelyn apparently contemplated obtaining a residence order there , she never sought custody of K.L. in the U.K. courts. A residence order is the U.K. equivalent of a custody order and different from he contact order. See Children Act 1989, c. 41, Part II, s 8(1) ("In this Act-'a contact order' means an order requiring the person with whom a child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other...."). K.L. had entered the U.K. on a limited-duration visitor's visa that expired in early 2009. Without notifying Derek, Evelyn filed an application to obtain permanent resident status for K.L. in autumn 2008. The U.K. denied that application on June 23, 2009, in part because Evelyn failed to show that she was " 'present and settled in the [U.K.] and ... had sole responsibility for [K.L.'s] upbringing.' " The U.K. official also reasoned that the Temporary Order " 'impl[ied] that the final decision regarding [K.L.'s] place of residence and which of [his] parents will have primary responsibility for [his] upbringing will not be decided until [his] parents' final decree is signed.' " The official saw " 'nothing to indicate that [Derek had] agreed to [K.L.'s] residing in the [U.K.] permanently with [his] mother.' "

 Days later, Evelyn asked the Texas court to set the divorce for a final hearing. In her motion, Evelyn stated that she had returned to Texas and discovered that her immigration paperwork was missing from the marital residence. These documents were crucial, Evelyn argued, because without them she could not "retain her current green card status in the United States." On June 30, 2009, Evelyn, her attorney, and Derek's attorney attended a hearing in San Antonio. Contending that K.L. could be ejected from England at any point in time, Evelyn's counsel asked either that the Texas Court order Derek to give consent for K.L. to have residency in London or lift the stay to allow the parties to litigate the divorce issue, because in order for Evelyn to remain in the United States, she's had to either be divorced or have sponsorship. Evelyn's attorney represented at least two more times in the relatively brief hearing that Evelyn hoped to maintain permanent residence in the United States. Derek's attorney noted that he had been served with "full blown discovery" shortly before the hearing and argued that Derek's continued deployment mandated that the stay remain in place. In response to the judge's questioning, the attorney admitted that he could not think of a solution to K.L.'s visa problem. He reiterated, however, that Derek ultimately sought full custody.

 The judge then proposed a potential solution: "what if [the parties] did some kind of an order that said, the Court finds that this temporary order that was agreed to by the parties signifies [Derek's] consent for [K.L.] to temporarily reside with [Evelyn] in London, until such time as the Court hears ... further orders in ... October of 2009 or something[?]" The attorneys agreed "that might do the trick." The judge repeatedly made clear that any consent for K.L. to stay overseas was to temporarily avoid separating him from Evelyn and should not "prejudice [Derek's] right to come back here and conduct a custody trial in the future." The judge also warned the parties that if they could not reach an agreement along the lines she had proposed, she would not rule out lifting the stay and finalizing the divorce. The attorneys agreed to work on an agreed order and to come back before another judge in a few days. The next day, Derek's attorney sent Derek an email about the "emergency" proceedings. Attached to the email was an affidavit for Derek's signature giving consent for K.L. to "reside" with Evelyn. In line with the discussion at the June 30th Hearing, Derek's attorney suggested that any consent would be valid only through Derek's return to the United States, noting that they would "have to have a side agreement between [Evelyn], her lawyer, and [Derek's attorney] that [K.L.'s] residence in England is not permanent and that he shall be returning to the U.S. eventually and that this case shall proceed here and only here in Texas." Derek signed the affidavit on July 6, 2009 . In it, Derek affirmed that he was K.L.'s biological father, reported that he was "currently deployed in Afghanistan," and gave his consent for K.L. to "reside with his mother ... in England," which he considered to be in K.L.'s "best interest." The same day, Derek emailed the affidavit to his attorney, writing only that he had "read, signed[,] and attached the consent form as discussed." On July 2nd-just two days after the June 30th Hearing-Evelyn filed an amended counter petition in the Texas court. Consistent with her stated desire to maintain permanent residency in the United States, the counter petition again stated that Evelyn had been domiciled in Texas for the preceding six months and had been a resident of Bexar County, in which San Antonio is located, for the preceding ninety days. Evelyn also sought "the exclusive use and possession" of the marital residence and an injunction against Derek's "entering or remaining on  the premises." The counter petition further asked the Texas court to appoint Evelyn as sole managing conservator of K.L. and to enter certain "temporary" child support and spousal maintenance provisions "until a final decree [was] signed." The counter petition also disavowed that K.L. was "under the continuing jurisdiction of any other court" or subject to any "court-ordered conservatorships, court-ordered guardianships, or other court-ordered relationships."

 The second hearing on Evelyn's motion to lift the imposed stay was held on July 6, 2009-the same day that Derek signed and emailed the Consent Affidavit. Evelyn's representations differed from those made at the June 30th Hearing in at least two crucial aspects. This time, Evelyn's counsel reported that U.K. immigration officials had scheduled K.L.'s deportation for July 9th, just three days away, and that Evelyn "could never come back over here and live with her child" because her green card had expired. Both of these claims were questionable. Evelyn's counsel nonetheless contended that the only way to prevent K.L.'s deportation was to grant a divorce or to have Derek sign the consent form. Derek's attorney had not yet heard back from Derek about the Consent Affidavit and announced "not ready." He argued that any action without Derek's participation violated the Service members Civil Relief Act, but attempted to work out some sort of agreement. Based on the alleged emergency, the judge crafted a compromise. She "order {ed] that [Derek] sign the consent form to do a status quo. In the event he fail[ed] to do that, [the judge would] enter a divorce decree." Although the decree would "grant the divorce and grant custody," it would only be a temporary arrangement to prevent K.L.'s deportation. After entry of the decree, the judge proposed that a motion for new trial be filed by Evelyn's attorney to "prevent it becoming a final order until [Derek was] able to get back from Afghanistan." The judge noted that she did not expect Derek's attorney to agree to this solution. In fact, when Derek's attorney asked for sanctions and attorneys' fees under the Service members Civil Relief Act, the judge promised to take up those issues when  "we really do have a final hearing." The judge was explicit that this arrangement would "not prejudice [Derek] for his custody suit" and that he was "not in any way precluded from coming back and obtaining [custody]-and [that] if he want[ed] to come back sooner, [she would] grant him a new trial." Although Derek emailed the Consent Affidavit to his attorney on July 6th, there apparently was some objection to Derek's failure to have it notarized. The Texas court therefore entered a "final" divorce decree on July 30, 2009, awarding Evelyn sole managing conservatorship over K.L. but notably omitting the Temporary Order's "without regard to geographic location" modifier. Evelyn forwarded the "final" divorce decree to U.K. immigration authorities.

 Derek returned from Afghanistan just over two weeks later. He quickly filed motions for a new trial and to lift the stay. The Texas court entered an agreed order granting the motion for new trial on August 26, 2009.

 A U.K. immigration appeals judge granted K.L. permanent residency in the U.K. a week later, but not because Evelyn had been granted sole managing conservatorship. The judge found that it was "quite clear from the [Texas court] documents that both parents retain[ed] a significant responsibility for the care of [K.L.]" and that Evelyn's "evidence [was] far from showing that [she] ha[d] sole responsibility for [him]." The U.K. judge noted that it was "not in dispute that suitable arrangements [had] been made for [K.L.'s] care both as a result of the American divorce proceedings and as a result of [Evelyn's] financial condition." The judge thus affirmed the rejection of K.L.'s application under the U.K. law provision relied upon in the original decision. The judge instead granted the appeal based on a provision allowing permanent residency in cases where "one parent is present and settled in the [U.K.] and there are serious and compelling family or other considerations which make exclusion of the child undesirable."

 Derek filed a "Motion for Additional Temporary Orders" on September 16, 2009, seeking extended visitation with K.L. in the U.K. The Texas court granted the motion on September 30th, and ordered Evelyn to allow Derek three weeks of "continuous and unrestricted (twenty four (24) hours per day) visitation with K.L." from October 20th to November 10th. Evelyn lodged no objections to this order even though she originally opposed Derek's visitation request.

 With Derek's return, the divorce proceedings turned to discovery. The record suggests that Evelyn refused to comply with several discovery requests and court orders. Derek filed motions to compel, for sanctions, and for a continuance. After a December hearing, the Texas court granted Derek's requests, ordering Evelyn to respond to the discovery requests and to pay Derek $1538 in sanctions. Trial was continued to March 1, 2010. Evelyn failed to comply with the order, and Derek filed another motion to compel and other motions. The Texas court granted these requests by, among other things, giving Derek the exclusive right to occupy the marital residence, ordering Evelyn to comply with certain discovery requests, and setting other matters for a hearing. Evelyn was ordered to bring K.L. to the hearing. On February 4th, the Texas court issued a multi-part order addressing several pending matters. Among other things, the order provided that Derek discontinue child and spousal support payments as a sanction for Evelyn's failure to bring K.L. to the hearing; that Evelyn comply with the outstanding discovery requests and finish paying the previously ordered sanction; that Evelyn was prohibited from raising certain issues in future proceedings; and that Evelyn pay an additional $1200 in sanctions for her failure to abide by various orders. The order also imposed heavy sanctions for her conduct, but allowed her to fully participate in the final divorce hearing if she complied with all unresolved orders and discovery requests by March 1, 2010. Evelyn complied with the sanction order, as well as an order to bring K.L. back to the United States for the trial. The Texas court heard arguments on March 1 and 2, 2010. Derek and Evelyn both testified, along with an immigration specialist and an accountant.

 The Texas court entered a "Final Decree of Divorce" on May 25, 2010, finding that it had "jurisdiction of [the] case and of all the parties." It appointed Derek and Evelyn as joint managing conservators of K.L., with Derek as the possessory parent, and found that such an arrangement was in K.L.'s "best interests." Because the parties "reside[d] in different and remote countries," the Final Decree imposed a custom possession order rather than the Texas Standard Possession Order used in the Temporary Order. In lieu of child support, Evelyn was ordered to pay "all costs of travel associated with her visitation" rights. Unlike the Temporary Order, the Final Decree contained a mutual ne exeat provision that required each party to obtain "written authorization" from the other to take K.L. "beyond the territorial limits of the United States," provided that during her periods of possession, Evelyn had the right to take K.L. to England, Scotland, and Wales. Before removing K.L. from the United States, however, the Final Decree obligated Evelyn to post a $25,000 bond in Derek's favor. The Texas court gave Derek "the exclusive right to designate the primary residence of [K.L.] without regard to geographic location," and found "that the United States of America is the country of habitual residence of [K.L.]"

 Derek took possession of K.L. shortly after the trial ended. Evelyn appealed and in January 2011 filed a "Motion to Modify and Motion for Clarification" of the Final Decree which was disposed of.

 On February 25, 2011, Evelyn initiated this action. A an evidentiary hearing, at which both parties testified and presented evidence the district court granted Evelyn's petition on August 10, 2011, and ordered that Derek immediately return K.L. to Evelyn's possession. The district court found that the U.K. was K.L.'s "habitual residence" under the Convention; that Derek breached Evelyn's U.K. custody rights by retaining K.L. pursuant to the Final Decree; and that Evelyn was actually exercising her U.K. custody rights at the time of retention. Evelyn departed for the U.K. with K.L. in tow. Derek timely appealed.

 The Fifth Circuit rejected Evelyn’s argument that the court should adopt the reasoning of the Eleventh Circuit's opinion in Bekier v. Bekier, 248 F.3d 1051 (11th Cir.2001), and hold that the case was moot in light of K.L.'s return to the U.K. The petitioner in Bekier took his son from the United States to Israel immediately after the district court resolved the Convention issue in his favor. The Eleventh Circuit dismissed the respondent's appeal, reasoning that it could provide her "no actual affirmative relief" because any "potential remedies ... lie in the Israeli courts." The Fifth Circuit found that Bekier was inconsistent with the grain of circuit authority. The Third and Fourth Circuits, the only other circuit courts to rule on the issue, had explicitly rejected Bekier 's approach. See Whiting v. Krassner, 391 F.3d 540, 544-46 & n.2 (3d Cir.2004); Fawcett v. McRoberts, 326 F.3d 491, 494-97 (4th Cir.2003). The Court held that Derek's appeal was not moot for basically the reasons articulated by the Fawcett court. '[C]ompliance [with a trial court's order] does not [ordinarily] moot an appeal [of that order] if it remains possible to undo the effects of compliance or if the order will have a continuing impact on future action.' " The Convention and U.K. law perhaps best demonstrate that granting Derek relief can " 'affect the matter in issue.' Both provide a "mechanism for enforcing a judgment by this court or the district court on remand." It also was possible that Evelyn could voluntarily respond to an order requiring K.L.'s return or risk contempt sanctions.

 Turning to the merits of Evelyn's case the court concluded that Derek should prevail. The district court's order had the effect of undoing the custody arrangement ordered by the Texas court of competent jurisdiction, before which both parties participated and sought relief, in favor of relitigating custody before tribunals that, until this proceeding, Evelyn never argued had authority over the matter. Derek contended that Evelyn consented to the Texas court's resolution of the custody issue and "waived" recourse to the Convention by failing to raise it in the Texas court. The district court, however, held that Evelyn's "[m]erely participating in the Texas divorce and custody proceedings [was] not consent to [K.L.'s] removal or retention in Texas." According to the district court, Evelyn attended the final divorce proceedings "under compulsion of the Texas court's order," belying the voluntariness of her participation. Similarly, the district court believed that "[t]here was nothing consensual or voluntary in her surrender of her son."

 The Court observed that under Article 13(a), "[t]he consent defense involves the petitioner's conduct prior to the contested removal or retention, while acquiescence addresses whether the petitioner subsequently agreed to or accepted the removal or retention." Baxter v. Baxter, 423 F.3d 363, 371 (3d Cir.2005). The focus of inquiry is "the petitioner's subjective intent," , as "evinced by the petitioner's statements or conduct, which can be rather informal." Nicolson v. Pappalardo, 605 F.3d 100, 105 (1st Cir.2010). "In examining a consent defense, it is important to consider what the petitioner actually contemplated and agreed to in allowing the child to travel outside its home country. The nature and scope of the petitioner's consent, and any conditions or limitations, should be taken into account." Consent for a particular tribunal to make a final custody determination, which may be established by entry of a temporary custody order, suffices to establish an affirmative defense under the Convention. See Nicolson, 605 F.3d at 106-07 ("The consent order in this case provided only for temporary custody but, if it were read as agreeing to let the Maine courts determine final custody..., we would think that this was an acquiescence or, alternatively, a waiver of Hague Convention rights."; cf. Navani, 496 F.3d at 1132 ("As the English family court retained jurisdiction at all times over [the child's] custody, and we have never had jurisdiction over the merits of the English family court's custodial decisions, we are powerless to alter the current custodial regime forbidding the very relief that [the appellant-respondent] seeks: return of the child to the United States.").

 Applying these principles left no doubt that Evelyn gave " 'clear and unequivocal' " consent for the Texas court to make a final custody determination. Evelyn and Derek agreed to the Temporary Order because Derek's military service made a final resolution and trial impractical at the time. Evelyn answered the divorce lawsuit and filed a counter petition seeking affirmative relief. Evelyn exercised custody, as a temporary joint managing conservator, under the Temporary Order until July 30, 2009, when the "final" divorce decree was entered at the suggestion of a Texas judge and as a compromise to forestall what was claimed to be K.L.'s imminent deportation. That decree was vacated weeks later by agreement of the parties. During Evelyn's time in the U.K., she recognized and obeyed orders entered by the Texas court on multiple occasions. Although Evelyn was sanctioned for discovery abuses and for failing to bring K.L. to the United States on one occasion, she ultimately paid the imposed sanctions and complied with all Texas court orders. She participated in the divorce trial, appealed the Final Decree, and later moved that the Texas court modify its terms based on her consistent obedience to the court's orders and submission to its jurisdiction. By her own admission, at no time did Evelyn initiate custody proceedings in the U.K.

 The only thing in the record suggesting that Evelyn disagreed with the Texas court's authority was the filing of this action nine months after Final Decree was entered and almost a year after the divorce trial ended. Accordingly, the Fifth Circuit held that Derek proved as a matter of law that Evelyn agreed to the Texas court's final resolution of the custody issue.

 The Courts conclusion that consent was given defeated Evelyn's claim of "wrongful retention." Even if this analysis was incorrect, however, the Court concluded that Evelyn failed to satisfy her burden on the elements necessary to establish wrongful retention. Because wrongful-retention analysis depends on first determining
 K.L.'s country of "habitual residence," it began there. The Fifth Circuit joined the majority of circuits that "have adopted an approach that begins with the parents' shared intent or settled purpose regarding their child's residence." Nicolson, 605 F.3d at 104 & n.2 (collecting cases). This approach does not ignore the child's experience, but rather gives greater weight to the parents' subjective intentions relative to the child's age. For example, parents ' intentions should be dispositive where, as here, the child is so young that "he or she cannot possibly decide the issue of residency." Whiting, 391 F.3d at 548-49. In such cases, the threshold test is whether both parents intended for the child to "abandon the [habitual residence] left behind." Mozes, 239 F.3d at 1075; see also Whiting, 391 F.3d at 549-50. Absent shared intent, "prior habitual residence should be deemed supplanted only where 'the objective facts point unequivocally' to this conclusion." Mozes, 239 F.3d at 1082. Notably, when "the child's initial move from an established habitual residence was clearly intended to be for a specific, limited duration [,] ... most courts will find no change in habitual residence." Mere retention in another country and "private reservations" or intentions that are made "manifest and definitive" only after the child has left its country of origin are generally insufficient to establish intent to change a child's habitual residence.

 The district court concluded that the U.K. was K.L.'s habitual residence in March 2010 based on K.L.'s acclimation to the U.K. and Derek's intent that K.L. reside there with Evelyn during Derek's deployment. The district court relied primarily on Derek's agreeing to the Temporary Order provision giving Evelyn the right to determine K.L.'s residence without geographic restrictions and on his executing the Consent Affidavit allowing K.L. to reside in the U.K. The district court found that Evelyn and Derek's "last shared agreement ... was that [K.L.] reside in the U.K. with his mother." The Fifth Circuit disagreed.

 As an initial matter, the district court's order did not consider several components of the habitual-residence inquiry. The order never analyzed the threshold question of whether Derek and Evelyn shared an intention that K.L. abandon the United States, which was indisputably his habitual residence before his arrival in the U.K.. Nor did the order address the fact that Evelyn never claimed before filing her petition that she intended for K.L. to permanently remain in the U.K. Derek, for his part, never intended for K.L. to "abandon" the United States for any amount of time and, at most, agreed for K.L. to stay in the U.K. through resolution of the divorce proceedings. Thus, although Derek agreed that K.L. could remain in the U.K. for some time, no objective facts "unequivocally" show that the U.K. should "supplant[ ]" the United States as K.L.'s habitual residence. Regardless of the ties that K.L. unavoidably developed in the U.K., his young age required Derek and Evelyn's
 shared intentions be the primary focus in the habitual residence inquiry here. The Court opted against following the Sixth Circuit's exclusively child-centered approach. To focus on a young child's experience encourages future "would-be abductor[s] to seek unilateral custody over a child in another country" or to delay returning to the child's original habitual residence as long as possible.

 The record established that K.L.'s presence in the U.K. was to last for a limited duration; that Derek never agreed to any other arrangement; and that no special circumstances justified departing from courts' general practice of finding no change in habitual residence in such cases. See Whiting, 391 F.3d at 549-50. It concluded that Evelyn's sojourn did not alter K.L.'s habitual residence. As a result, it did not need to analyze any other element of the "wrongful-retention" analysis.

 It held that the appeal was not moot; that Derek satisfied his affirmative defense burden under the Convention to show that Evelyn consented and acquiesced to the Texas court's authority to make a final custody adjudication; and found that K.L.'s habitual residence at the time of the alleged retention remained the United States.