Alvarado v Castanos, --- F.3d ----, 2020 WL 896487 (11th Cir., 2020) [Chile] [Consent] [Remanded for further proceedings]

In Alvarado v Castanos, --- F.3d ----, 2020 WL 896487 (11th Cir., 2020) Karen Berenguela-Alvarado sought the return of her daughter—EICB—to Chile from Florida, where she was currently living with her father, Eric Castanos. Berenguela-Alvarado had permitted EICB to visit Castanos in the United States from December 2018 to March 2019. Castanos never returned her to Chile. Berenguela-Alvarado consequently initiated Hague Convention proceedings in federal district court to get her daughter back. The district court found that although Berenguela-Alvarado had made out a prima facie case that Castanos had wrongfully retained EICB, Berenguela-Alvarado had consented to that retention and therefore wasn’t entitled to EICB’s return. The Eleventh Circuit found that (1) as a matter of fact, the court erred by relying on non-existent testimony that Castanos never threatened Berenguela-Alvarado as a means of securing her consent to EICB staying in the United States; and (2) as a matter of law, the court erred by shifting the burden on the consent issue back to Berenguela-Alvarado, requiring her to prove by a preponderance of the evidence that Castanos’s threat constituted “duress.” It therefore vacated and remanded the district court’s order for further proceedings in accordance with this opinion.

  Berenguela-Alvarado, a Chilean citizen, and Castanos, a naturalized U.S. citizen, were the parents of EICB. EICB is a dual citizen of Chile and the United States, but since her birth she has consistently lived in Chile with her mother. Castanos has acknowledged EICB as his daughter since she was three months old, and he has reliably provided child support and had regular contact with her since then, making several visits a year to Chile. EICB visited Castanos in the United States for the first time in February 2018; she stayed with him for two months and then returned to Chile. Berenguela-Alvarado later gave EICB permission to travel to the United States a second time. Castanos bought EICB a round-trip airline ticket for the trip, with a departure date of December 30, 2018, and a return date of February 28, 2019. Berenguela-Alvarado gave permission for EICB to stay in the United States until the end of March in the event Castanos kept her longer than originally planned, as he had on her previous visit. In early February 2019, during EICB’s second visit to the United States, Castanos “proposed” to Berenguela-Alvarado that EICB stay with him in the United States permanently, as he felt he could provide a better life for her here. Berenguela-Alvarado resisted, telling Castanos that she didn’t want EICB to “think that [she] had abandoned her.” Berenguela-Alvarado testified that in response to her resistance, Castanos “started pressuring” her to let EICB stay with him. As a result, she asserted that she “tentatively agreed” to Castanos’s proposal, to ensure that she would see EICB in July 2019, at a minimum—the terms of Castanos’s deal being that EICB would stay with him in the United States, that the two would go to Chile in July to visit Berenguela-Alvarado, that Berenguela-Alvarado could visit EICB once a year in Miami, and that she wouldn’t have to pay any child support. Berenguela-Alvarado said that she “agreed only because she just wanted her daughter to come back in July,” and that when she began to “express [] hesitation and s[eek] clarification [as] to what was going on,” Castanos—this is important— “threatened to hold [EICB] for good and told [Berenguela-Alvarado] she would never see her [daughter] again.”

To effectuate his plan, Castanos enlisted the help of his friend Doris Baquero, who worked at the Florida Department of Juvenile Justice. Baquero sent Berenguela-Alvarado a letter to sign that purported to give consent for EICB to stay in the United States with Castanos. The consent letter, dated February 10, 2019, stated as follows: Effective May 5, 2019, I, Karen Edith Berenguela Alvarado, is giving consent to my daughter, [EICB], ... to reside with her father, Eric Castanos, in the United States. [EICB] will be residing in the United States for the purpose of improving her quality of life, education, physical health and nutrition. Eric Castanos will fully be responsible for [EICB’s] housing, nutrition, clothing, education, personal hygiene and physical health. [EICB] will visit her maternal family in Chile the months of summer break from school in the United States. Karen Edith Berenguela Alvarado is in full agreement with this letter and her signature confirms her knowledge and consent. Berenguela-Alvarado testified that she felt that she “was under pressure” and that she “said yes” to Castanos’s proposal “because otherwise he wouldn’t bring [EICB] back.” She further testified that Castanos “was going to request custody if [she] didn’t sign the document.” So, she says, although she signed the letter, she didn’t intend to consent to EICB staying in the United States permanently. As part of their plan, Castanos and Baquero asked Berenguela-Alvarado to renew EICB’s U.S. passport and have the consent letter notarized. Berenguela-Alvarado renewed EICB’s U.S. passport in February 2019, but she ultimately skipped two appointments that she had scheduled at the local U.S. embassy to get the letter notarized. Instead, she texted Baquero a picture of the signed letter—she never sent the hard copy—which Baquero then notarized outside of Berenguela-Alvarado’s presence.

Later in February, Berenguela-Alvarado sent Baquero the following e-mail: Doris, good afternoon, I appreciate everything, but I changed my mind. I have everything ready for [EICB] to return. Her uniform and school supplies, she starts classes on March 4th at Primary school. It is very important that she starts when it’s appropriate so she won’t fall behind. Thanks for everything. Despite Berenguela-Alvarado’s request that EICB be back in Chile before school started, Castanos kept her in the United States after her travel-authorization period ended. This litigation ensued.

 

In June 2019, she filed a petition under the Hague Convention in the Southern District of Florida. Berenguela-Alvarado alleged that Castanos had been unlawfully retaining EICB since her travel authorization expired in March 2019, and she insisted that she had never consented to EICB staying in the United States.  The district court held an evidentiary hearing to determine whether Castanos had wrongfully retained EICB. The vast majority of the evidence that Castanos presented bore on his first affirmative defense—namely, that EICB would face a grave risk of harm if returned to Chile—and he and other witnesses testified about EICB’s mental and physical health and asserted that she would enjoy a better quality of life in the United States than Chile. Importantly for our purposes, Castano didn’t present any evidence pertaining to Berenguela-Alvarado’s purported consent. Rather, the sole evidence about consent came from Berenguela-Alvarado—she testified that she signed the consent letter because Castanos “said he was not going to bring [EICB] back, and he was going to request custody if [she] didn’t sign the document.” She further testified that in signing the letter, she did not intend to consent to EICB remaining in the United States permanently.

  Although the district court agreed with Berenguela-Alvarado that she had established a prima facie case of wrongful retention under the Hague Convention, it held that she was not entitled to EICB’s return because it found that she had consented to that retention. The court held that by “sign[ing] a [consent] document, t[aking] a picture of it, and sen[ding] that picture to Baquero,” Berenguela-Alvarado had demonstrated “her subjective intent to allow EICB to remain in the U.S.” Importantly, the court acknowledged that if Castanos had threatened Berenguela-Alvarado as she alleged, that “statement would amount to duress.” But—again, importantly—the Court held that “Castanos denied making this statement and there is no documentary support for Berenguela-Alvarado’s assertion.” The district court found that Berenguela-Alvarado’s evidence concerning her communications with Castanos demonstrated “a contentious relationship” but did “not rise to the level of ‘improper and coercive’” behavior so as to satisfy the standard for duress. The court further rejected Berenguela-Alvarado’s argument that the consent letter should be discounted due to its legal deficiencies—it held that although “many questions exist[ed] as to the legal efficacy of the Consent Letter,” those questions were irrelevant because a parent’s consent doesn’t have to be formal under the Hague Convention. 

 

Berenguela-Alvarado appealed the district court’s order. The sole issue on appeal was whether the district court erred in ruling that Berenguela-Alvarado consented to Castanos’s retention of EICB. On appeal the parties agreed that Berenguela-Alvarado satisfied her prima facie burden regarding wrongful retention; the parties’ dispute focused exclusively on Castanos’s affirmative defense of consent. The sole affirmative defense at issue was consent, which the district court found to be “dispositive.” The consent defense requires the retaining/removing parent to prove by a preponderance of the evidence that the petitioning parent “consented to ... the removal or retention.” Hague Convention, art. 13(a); 22 U.S.C. § 9003(e)(2). The petitioning parent’s consent needn’t be formal, but “it is important to consider what the petitioner actually contemplated and agreed to in allowing the child to travel outside its home country.” Baxter v. Baxter, 423 F.3d 363, 371 (3d Cir. 2005). The focus of the court’s inquiry should be on the petitioning parent’s “subjective intent,” and should take into account “[t]he nature and scope of the petitioner’s consent, and any conditions or limitations” on that consent. The district court’s analysis of the consent defense centered almost exclusively on the consent letter that Berenguela-Alvarado signed. It was Berenguela-Alvarado who introduced the letter—in fact, Castanos objected to the letter’s admission, arguing that it was hearsay. With respect to the circumstances surrounding the letter’s signing, the district court made a clearly erroneous finding of fact regarding Castanos’s testimony. Although the district court acknowledged that if Castanos had threatened Berenguela-Alvarado as she claimed, it “would amount to duress”—and thus presumably vitiated her consent—it held, as a matter of fact, that “Castanos denie[d] making this statement.” That was incorrect. Castanos never actually denied threatening Berenguela-Alvarado. The district court therefore clearly erred in relying on non-existent testimony as a basis for holding that Castanos had shown that Berenguela-Alvarado had consented to EICB’s retention in the United States. He never testified that he didn’t make the threat. In mistakenly assuming that he had, the district court may well have relied on Castanos’s post-hearing brief, which asserted—falsely and without citation—that he “provided testimony that he never threatened or pressured [Berenguela-Alvarado] to sign the consent” letter. None of the testimony that Castanos did give could be interpreted as constituting a denial that he threatened Berenguela-Alvarado. So, in short, the district court clearly erred by relying on non-existent testimony. Castanos never denied threatening Berenguela-Alvarado, as he falsely claimed in his supplemental brief and as the district court found. Thus, it was left with [a] definite and firm conviction that a mistake has been committed.” Seaman, 766 F.3d at 1261 

 

In addition to this clear factual error, the district court also committed a significant legal error. Once a petitioning parent has established a prima facie case of wrongful retention/removal under the Hague Convention, the burden shifts to the retaining/removing parent to prove one or more affirmative defenses—without proof of one of those defenses, the child must be returned to the petitioning parent. Here, though, the district court improperly—but expressly—shifted the burden back to Berenguela-Alvarado on the consent issue, erroneously treating her allegation that she signed the consent letter as a result of Castanos’s threat as a formal allegation of “duress” that she had to prove by a preponderance of the evidence. The courts expressly found that “Berenguela-Alvarado ha[d] not shown by a preponderance of the evidence that her consent was the product of duress.” This was improper. When it came to the consent defense, Castanos—alone—had the burden to prove by a preponderance of the evidence that Berenguela-Alvarado had actually, subjectively intended to allow EICB to remain in the United States. See 22 U.S.C. § 9003(e)(2)(B); Hague Convention, art. 13(a); Baxter, 423 F.3d at 371. Berenguela-Alvarado had no burden to prove anything related to Castanos’s consent defense. The district court therefore erred as a matter of law in shifting the burden of proof to Berenguela-Alvarado.

  These factual and legal errors tainted the rest of the district court’s analysis too severely to salvage its order. It therefore vacated and remand the district court’s order for further proceedings in accordance with its opinion. 

Pope v Lunday, 2020 WL 6817487 (10th Cir., 2020) [Brail] [Habitual Residence] [Newborn child] [Residence] [Petition denied]

In Pope v Lunday, 2020 WL 6817487 (10th Cir., 2020) (not selected for publication) Kenneth Pope appealed from the district court’s denial of his petition. He was a United States citizen who lives permanently in Brazil. Ms. Lunday joined Mr. Pope in Brazil in July 2018. The couple obtained a public deed of stable union in Brazil in December 2018. In March 2019, Ms. Lunday became pregnant with twins. When she was 19-20 weeks’ pregnant, she returned to Oklahoma. Mr. Pope understood her trip to the United States was for only a few weeks, to attend social and business events. But Ms. Lunday took her pet cat back with her, and she did not return to Brazil. The infants were born in Oklahoma in November 2019. Since then, they have resided there with Ms. Lunday. Mr. Pope filed his petition days after the birth, and argued that Ms. Lunday has wrongfully retained the twins in Oklahoma from the moment they were born. Focusing on the threshold question of whether the infants habitually resided in Brazil, the district court decided the petition without holding an evidentiary hearing. It first expressed doubt that newborn infants are capable of having a habitual residence. But even assuming that a newborn can have a habitual residence, it held that Mr. Pope had failed to establish that the infants’ habitual residence was in Brazil. It therefore held that Ms. Lunday had not wrongfully retained the infants, and it denied Mr. Pope’s petition. 

The 10th Circuit affirmed. It noted that the district court ruled without the benefit of the Supreme Court’s recent discussion of “habitual residence” in Monasky v. Taglieri, 140 S. Ct. 719 (2020). In Monasky the Court held that a habitual-residence determination is a fact-intensive question to be reviewed only for clear error. It pointed out that Monasky provides some guidance concerning whether a newborn might have a habitual residence. The Court stated there that the Convention requires a district court to determine whether the child habitually resides in the location that the petitioner claims. The Tenth Circuit could not conclude that the district court clearly erred in determining that Brazil was not the infants’ habitual residence.

The Court pointed out that the Hague Convention does not define the term ‘habitual residence.’” Monasky, 140 S. Ct. at 726. “A child ‘resides’ where she lives. Her residence in a particular country can be deemed ‘habitual,’ however, only when her residence there is more than transitory.” The place where a child is at home, at the time of removal or retention, ranks as the child’s habitual residence.” “[L]ocating a child’s home is a fact-driven inquiry,” in which “courts must be sensitive to the unique circumstances of the case and informed by common sense. In Monasky the Court rejected any “categorical requirements for establishing a child’s habitual residence,”, and held that “[n]o single fact ... is dispositive across all cases,” Ultimately, the question is, “Was the child at home in the particular country at issue?”.

  Mr. Pope’s position was an assertion that the court must rule that a newborn’s habitual residence is wherever the parents last agreed it would be. But Monasky rejected the proposition that any particular circumstance controls. It specifically held that although “the intentions and circumstances of caregiving parents are relevant considerations,” nothing requires an actual agreement between the parties. Ms. Lunday emphasizes that the infants had never even been to Brazil. But as with actual agreement, Monasky states that “[a]n infant’s mere physical presence ... is not a dispositive indicator of an infant’s habitual residence.” . “The bottom line is: There are no categorical requirements for establishing a child’s habitual residence[.]” “[A] wide range of facts ..., including facts indicating that the parents have made their home in a particular place, can enable a trier to determine whether an infant’s residence in that place has the quality of being ‘habitual. The district court’s ruling was consistent with Monasky’s “totality of the circumstances” approach. Rather than considering any factor to be dispositive, the court considered a wide range of factors. It noted that the infants were born in the United States; that both parents and children were United States citizens; and that Ms. Lunday had moved back to the United States while pregnant and the infants had not “spent a moment of their lives in Brazil” since birth. It discussed Mr. Pope’s actual-agreement argument but found that after their birth, “even granting Pope’s factual allegations every benefit of the doubt [,] there was never shared parental intent with respect to the children.” It rejected Mr. Pope’s contention that “Lunday can never withdraw from the pre-birth agreement she allegedly had with Pope [and] is bound to that agreement forever unless she comes to a new agreement with Pope,” noting that “Pope’s position ignores everything that has happened since the alleged in utero agreement,” And given the conflict between the parties since Ms. Lunday returned to the United States, the court stated, “ ‘shared parental intent’ that existed at 19 to 20 weeks in utero is not sufficient to override every other undisputed fact in this case, all of which point in one direction: away from Brazil as the place of habitual residence.” Having reviewed the briefs, the record, and the law, it could not conclude that the district court’s findings were clearly erroneous. It affirmed the district court’s determinations that the infants were not habitual residents of Brazil and that Ms. Lunday did not wrongfully retain them in Oklahoma.

  The Court rejected Mr. Pope’s argument that he was denied due process when the district court denied his petition without holding an evidentiary hearing. Neither the Convention nor ICARA, nor any other law including the Due Process Clause of the Fifth Amendment, requires that discovery be allowed or that an evidentiary hearing be conducted as a matter of right in cases arising under the Convention. Rather, a meaningful opportunity to be heard ... is all due process requires in the context of a Hague Convention petition.

 

Farr v Kendrick, --- Fed.Appx. ----, 2020 WL 4877531 (9th Cir.,2020) [Mexico] [Habitual residence] [Petition denied]

In Farr v Kendrick, --- Fed.Appx. ----, 2020 WL 4877531 (9th Cir.,2020) (not selected for publication) Michael Farr filed a pro se petition under the International Child Abduction Remedies Act, 22 U.S.C. § 9001 et seq., for the return of his twin minor children to Mexico, after his ex-wife and mother of the children, Bonnie Jeanene Kendrick, took them from Mexico to live with her in Arizona. The district court denied Farr’s petition because the children’s country of habitual residence was the United States, not Mexico. The Ninth Circuit affirmed. It observed that the habitual-residence determination ... presents a task for factfinding courts, not appellate courts, and should be judged on appeal by a clear-error review standard deferential to the factfinding court.” Monasky, 140 S. Ct. at 730. It noted that the district court found that the parents did not have a shared, settled intent to abandon the United States as their habitual residence when they moved to Mexico, pursuant to existing precedent. See Valenzuela v. Michel, 736 F.3d 1173, 1177 (9th Cir. 2013) (“In the Ninth Circuit, we look for the last shared, settled intent of the parents in an attempt to determine which country is the ‘locus of the children’s family and social development.’ ” (quoting Mozes v. Mozes, 239 F.3d 1067, 1084 (9th Cir. 2001)). However, after the district court’s decision, the Supreme Court held that “a child’s habitual residence depends on the totality of the circumstances specific to the case.” Monasky, 140 S. Ct. at 723. Thus, “a wide range of facts other than an actual agreement, including facts indicating that the parents have made their home in a particular place, can enable a trier to determine whether an infant’s residence in that place has the quality of being ‘habitual.’ Under the circumstances of this case, it declined to disturb the judgment below. 

The district court’s very thorough findings enabled it to conclude that, under the totality of the circumstances, the children’s habitual residence was the United States. For example, the district court found that Kendrick credibly testified that she viewed the move as temporary and believed the family would remain in Mexico for three to five years.1 The court also relied on Kendrick’s repeated requests, in email exchanges and in conversations secretly recorded by Farr, to return to the United States. The court found “most telling” a January 2017 email exchange, in which Kendrick described Houston, Texas, as their home and permanent residence, and, rather than dispute the characterization, Farr sought to postpone deciding when the move would occur. A December 2016 email by Farr also supports the district court’s finding. In this email, Farr detailed a “plan of action” for their return to the United States, setting forth decisions they needed to make “very soon,” such as which United States city they would move to. The record also contained March 2016 text message exchanges in which Kendrick expressed uncertainty about whether they would stay in Mexico, writing, for example, that it was difficult for the family to settle in Mexico and make friends because “we don’t know month to month if we’ll be here or not.” Other circumstances the court relied on include the following: Farr, Kendrick, and the children are United States citizens; Farr’s sister testified that Farr’s job in Mexico was “indefinite” and “temporary”; Kendrick’s and the children’s temporary visas expired in August 2017; Farr made seven trips to the United States between August 2015 and August 2018; all of Kendrick’s and most of Farr’s extended family members lived in the United States; and Farr maintained an American bank account and American automobile insurance while living in Mexico. In addition, the court noted that the children were less than a year old when they moved to Mexico, only three years old when they returned to the United States, did not speak Spanish, and did not attend school in Mexico. The totality of the circumstances supported the district court’s finding that the children’s habitual residence was the United States, not Mexico. For the reasons articulated in Monasky, it concluded that it was not necessary to remand for the district court to consider the evidence under the new standard announced by Monasky. 

Castro v Rentieria, --- F.3d ----, 2020 WL 4814137 (9th Cir., 2020) [Mexico] [Wrongful retention][Now settled] [Petition denied]

In Castro v Rentieria, --- F.3d ----, 2020 WL 4814137 (9th Cir., 2020) the district court denied Carmen Flores Castro’s petition for the return to Mexico of Z.F.M.Z., a ten-year-old child who was Carmen’s paternal half-sister. Bertha Hernandez Renteria, Z.F.M.Z.’s maternal grandmother, who had been raising Z.F.M.Z. in Las Vegas, Nevada since 2017, opposed the petition. The parties’ dispute concerned the precise date on which Bertha either wrongfully removed or wrongfully retained Z.F.M.Z. within the meaning of the Convention, which dictates whether Carmen’s petition was timely filed. The Court concluded that the date of wrongful removal or retention was more than one year prior to the date of Carmen’s petition. It affirmed the district court’s discretionary decision not to order the return of Z.F.M.Z. to Mexico pending custody proceedings, because Z.F.M.Z. was now settled in Las Vegas.

  Z.F.M.Z. was born in Las Vegas in 2009, the daughter of Rusia Michel Zamora and Raul Flores Hernandez. Rusia and Raul thereafter moved to Mexico, where they lived separately. Z.F.M.Z. lived primarily with Rusia and Bertha. In 2014, Rusia disappeared under unknown circumstances. Raul was in prison at the time, and Bertha became Z.F.M.Z.’s primary caregiver. Upon Raul’s release in 2016, Bertha and Raul agreed to an informal arrangement pursuant to which Bertha would have custody of Z.F.M.Z. on weekdays, and Raul on weekends. In May of 2017, Raul and Carmen initiated custody proceedings against Bertha in family court in Jalisco, Mexico. The court granted Raul full custody during the pendency of the proceedings. Z.F.M.Z. then resided partly with Raul and partly with Carmen. That arrangement ended when Raul was arrested in Mexico on allegations of drug trafficking by the U.S. Office of Foreign Assets Control. After his arrest, Raul allegedly gave Carmen informal custody of Z.F.M.Z. ubsequent to Raul’s arrest, with custody proceedings ongoing, Bertha obtained provisional custody of Z.F.M.Z. On August 25, Bertha left Mexico with Z.F.M.Z. on a flight from Guadalajara to Las Vegas. On August 30, Carmen reported to the Jalisco court that Bertha had taken Z.F.M.Z. out of Mexico. The Jalisco court issued an order the same day that set the custody hearing for September 8; ordered Bertha to appear along with Z.F.M.Z. at the hearing; acknowledged that Bertha had “left the country with [Z.F.M.Z.]”; set a bond on Bertha’s appearance; and directed personal notice to Bertha “that she may not leave the territory of this court ... or the country, accompanied by the mentioned minor, without leaving a duly authorized representative to take part in this trial.” Neither Bertha nor Z.F.M.Z. appeared at the September 8 hearing. On September 13, the court received a letter from Bertha stating that she would be staying in the United States indefinitely with Z.F.M.Z. On October 2, the court issued an order directing communication to the Mexican Ministry of Foreign Affairs and the U.S. Consulate General in Guadalajara, to inform them “that [Z.F.M.Z.] was illegally taken out of the country against all the judicial orders.” On October 12, the Jalisco court issued a further order stating that Bertha “did not comply with the secure order decreed in the resolution of August 30th, 2017, and left out of the territory with [Z.F.M.Z.].” The order directed the Jalisco District Attorney to notify Bertha of her noncompliance by virtue of “taking [Z.F.M.Z.] out of the country without authorization.” The order additionally directed that the relevant diplomatic offices be informed “about the illegal subtraction of [Z.F.M.Z.] out of the country.” On September 7, 2018, Carmen filed her Hague Convention petition with the district court, requesting Z.F.M.Z.’s return to Mexico.

  The magistrate recommended granting Carmen’s petition pursuant to the mandatory return provision of Article 12 of the Convention. The magistrate found that Bertha, had “provisional custody” at the time she removed Z.F.M.Z. from Mexico. The magistrate determined that September 8, 2017, when Bertha failed to appear at the Jalisco court hearing with Z.F.M.Z., “was the earliest unequivocal act when [Carmen] should have known that [Bertha] had wrongfully retained [Z.F.M.Z.].”1 On this basis, the magistrate concluded that the date of wrongful retention was September 8, 2017, and that Carmen’s September 7, 2018 petition was timely filed. Notwithstanding its threshold conclusion the magistrate also found that, “[a]lthough she has only been in Las Vegas for a little over a year, [Z.F.M.Z.] has established significant connections to Las Vegas, as she has developed friends, attends school regularly, and has family that resides in the area.” The magistrate concluded that Z.F.M.Z. was now “settled” with Bertha in Las Vegas. 

The district court rejected the magistrate’s recommendation regarding the timeliness of Carmen’s petition, and ultimately denied the petition. Reviewing the facts de novo, the court found that Bertha “had no right to take Z.F.M.Z. to the United States,” and that this matter was therefore “one of wrongful removal” rather than wrongful retention. The court concluded that wrongful removal occurred on August 30, 2017, and that Carmen’s September 7, 2018 petition was therefore filed more than one year after the operative date. The court then declined to exercise its discretion to nevertheless order return. The court highlighted the magistrate’s uncontested findings on the now-settled defense, including that Z.F.M.Z. had made “significant improvement in English,” achieved “several school awards,” made “three best-friends” in her new environment, and has family in the United States that “supports her academic and recreational interests.” The court found that Bertha did not attempt to conceal Z.F.M.Z. after her entry into the United States, but rather informed the Jalisco court of Z.F.M.Z.’s relocation to Las Vegas shortly after her arrival. The court also found that Carmen was capable of litigating custody issues here in the United States, whereas Bertha would likely be unable to litigate custody in Mexico due to her outstanding arrest warrant for abducting Z.F.M.Z. The court concluded that “[o]n balance,” the facts favored preserving Z.F.M.Z.’s stability in her current environment.

   The Ninth Circuit pointed out that as relevant here, if the other parent or guardian fails to petition for return within one year, and “it is demonstrated that the child is now settled in its new environment,” the judicial authority is not required to order return. 

The Court indicated in a footnote that it used the term “guardian” as shorthand for “a person, an institution or any other body” that “jointly or alone” has “rights of custody” within the meaning of the Convention. Hague Conv. Art. 3(a). It  adopted the conclusion of the House of Lords in In re H that a court in the child’s country of habitual residence may be such a guardian where custody proceedings are pending before it. In re H (A Minor) (Abduction: Rights of Custody), [2000] 2 A.C. 291, 1999 WL 1319095 (appeal taken from Eng.); see Fawcett v. McRoberts, 326 F.3d 491, 500 (4th Cir. 2003) (adopting same, noting that “judicial ‘opinions of our sister signatories’ to the Convention are ‘entitled to considerable weight.)

The one-year period is triggered by the “date of the wrongful removal or retention” of the child. A removal or retention of a child is “wrongful” if it is “in breach of the rights of custody” attributed to any guardian “under the law of the State in which the child was habitually resident.” Hague Conv. Art. 3(a). According to the U.S. State Department: Generally speaking, “wrongful removal” refers to the taking of a child from the person who was actually exercising custody of the child. “Wrongful retention” refers to the act of keeping the child without the consent of the person who was actually exercising custody. The archetype of this conduct is the refusal by the noncustodial parent to return a child at the end of an authorized visitation period. Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed. Reg. 10,494, 10,503 (Mar. 26, 1986). 

The district court concluded that Bertha wrongfully removed Z.F.M.Z. from Mexico no later than August 30, 2017. Carmen argued that Bertha’s removal of Z.F.M.Z. was not wrongful at all, and that Bertha’s retention of Z.F.M.Z. outside of Mexico did not become wrongful until at least September 8, 2017, when Bertha failed to appear with Z.F.M.Z. at the custody hearing.

The Court noted that Bertha alleged that she and Z.F.M.Z. boarded a flight from Guadalajara to Las Vegas on August 25, 2017. The record contained copies of the August 25 boarding passes for Bertha and Z.F.M.Z. In light of this evidence, it concluded that the district court’s finding was clearly erroneous. Bertha removed Z.F.M.Z. from Mexico on August 25, 2017. For a removal to be “wrongful,” the Convention requires that the removal be in breach of the “rights of custody” of any guardian. The Convention in turn defines “rights of custody” to include “the right to determine the child’s place of residence.” Art. 5(a). Prior to this appeal, there had been no dispute that both Carmen and the Jalisco court had such “rights of custody” at the time that Bertha removed Z.F.M.Z. from Mexico. There remained no dispute that at least the Jalisco court had the relevant “rights of custody.”  It found that Bertha’s removal of Z.F.M.Z. was “in breach” of either Carmen’s or the Jalisco court’s rights of custody under Mexican law. Hague Conv. Art. 3(a). It gave great weight to the Jalisco’s court’s own rulings concerning the wrongfulness of the removal in this case and concluded that the child. Jalisco court’s decisions issued in October 2017 made clear that the removal was in breach of the relevant rights of custody. Accepting those factual findings made by the district court which it had not found to be clearly erroneous, and reviewing de novo the application of the Convention to those facts, it concluded that Bertha wrongfully removed Z.F.M.Z. from Mexico on August 25, 2017.

   It then noted that Carmen’s petition was filed with the district court on September 7, 2018. Her petition was therefore filed more than one year after “the date of the wrongful removal or retention.” Hague Conv. Art. 12; 22 U.S.C. § 9003(f)(3). Accordingly, the district court had discretion to decline to order the return of Z.F.M.Z. to Mexico if Bertha proved by a preponderance of the evidence that Z.F.M.Z. was now “settled” in Las Vegas. Hague Conv. Art. 12; 22 U.S.C. § 9003(e)(2)(B); In re B. Del C.S.B., 559 F.3d at 1009. Carmen did not appeal the district court’s findings that Z.F.M.Z. was “settled,” nor did Carmen argue that the district court abused its discretion in declining to order return. Thus, it held that the district court’s decision was proper, and affirmed the district court’s denial of Carmen’s petition for the return of Z.F.M.Z. to Mexico pending custody proceedings. 

Smith v Smith, --- F.3d ----, 2020 WL 5742023 (5th Cir., 2020) [Argentina] [Habitual residence] [Petition denied]

In Smith v Smith, --- F.3d ----, 2020 WL 5742023 (5th Cir., 2020) Colin David Smith filed a petition under the Hague Convention asserting that Sarah Elizabeth Smith wrongfully removed their children from Argentina to Texas. The district court denied the father’s petition because it determined that Argentina was not the children’s habitual residence. The Fifth Circuit affirmed. 

  Colin Smith and Sarah Smith married in 2008 and had four children. After several moves within the United States, the family moved to Argentina in June 2017. The couple separated in May 2018 and jointly petitioned an Argentinian court for divorce. That court’s divorce decree provided for the parents’ shared custody. Sarah removed the children to Texas in July 2019, with Colin’s permission, to attend a funeral, but t she remained in the United States with the children. Colin filed a lawsuit seeking the children’s return to Argentina in the United States District Court on October 1, 2019. The district court held a bench trial in which Colin argued that a foreign custody order and the provisions thereof, combined with the length of time the children lived in Argentina, determined that Argentina was the children’s habitual residence. He also testified, however, that there was no objective evidence showing a shared intention to permanently move to Argentina. Sarah pointed to the fact that none of the children had ever left the United States before moving to Argentina, certain provisions in Colin’s work contract, the children’s attendance at an American school in Argentina, and her own continued ownership of inherited property in Texas as evidence that Argentina was not the children’s habitual residence. She further testified that Colin had reassured her that the move to Argentina was only for two years and that they would use the money he earned there to pay for a house in the United States. A close family friend also testified at the hearing that neither party ever represented that they intended to permanently abandon the United States by moving to Argentina and that they always spoke of the move as temporary.

  The district court then issued an order denying the return of the children to Argentina, determining that the facts supported the conclusion that none of the children habitually resided in Argentina. Specifically, the district court found: both parents and all the children were born in the United States and continued to be United States citizens; Colin was eligible to apply for Argentinian citizenship and did not do so; Colin’s work contract was at will, contained provisions for “home leave” which referred to the United States, specifically San Francisco, and provided for a 24-month housing allowance; the parties brought all of their personal belongings with them to Argentina, but Sarah continued to own, and Colin was aware of, land in Texas that she inherited prior to the move abroad; the parties chose to sign a two-year lease in Argentina rather than purchase a residence; all four children were enrolled in an “American style” school in Buenos Aires; none of the parties own any property or have any family members in Argentina; Sarah does not now qualify for anything other than an Argentinian tourist visa, which would only allow her to stay in the country for up to three months. The district court also found that the oldest two children were of sufficient age and maturity to object to being sent back to Argentina, and that they did object.

  Colin filed this appeal in which he contended that the district court erroneously applied a “shared intent” standard for determining the habitual residence of the children instead of a “totality of the circumstances” standard. It was Colin’s position that the Argentinian divorce decree was dispositive in that its shared custody provisions can practically be implemented only in Argentina.

  The Fifth Circuit observed that before Monasky, the Fifth Circuit adopted an approach that looked to the parents’ “shared intent” as a threshold test for determining a child’s habitual residence. This was the approach the district court used to arrive at its determination in this case. While this appeal was pending, the Supreme Court of the United States held in Monasky that the correct approach to habitual residence is to examine the totality of the circumstances. 140 S. Ct. at 730. Once this standard is identified, a court need only apply that standard to determine if a child was at home in the country from which the child was removed.  This is a fact-intensive analysis that “should be judged on appeal by a clear-error review.” Therefore, it reviewed the district court’s determination for clear error, but under a totality-of-the-circumstances analysis. 

 

It observed that the Supreme Court held in Monasky that “a child’s habitual residence depends on the totality of the circumstances specific to the case.” It also held that a child’s “residence in a particular country can be deemed ‘habitual’ ... only when her residence there is more than transitory.” 

The district court, in keeping with what was then-binding Fifth Circuit precedent, began with the parents’ shared intent before moving onto a “fact-intensive determination that necessarily varies with the circumstances of each case.” However, as was the case in Monasky, the district court had determined and considered all the relevant facts. After doing so, it decided that Colin, as petitioner, did not meet his burden of establishing habitual residency. Finding no clear error with the district court’s factual findings and examining those findings under the totality of the circumstances, it held that Argentina was ot the children’s habitual residence. 

  Following the example set in Monasky, it did  not remand for the district court to reconsider because to do so would “consume time when swift resolution is the Convention’s objective,” and there was no indication that “the District Court would appraise the facts differently on remand.” Monasky, 140 S. Ct. at 731. Likewise, counsel agreed at oral argument that a remand was unnecessary. Instead, because we are unable to find any clear error with the district court’s findings of fact, it applied the totality-of-the-circumstances standard established in Monasky to the district court’s factual findings. Because the totality of the circumstances showed that the children did not habitually reside in Argentina, it affirmed.

In a footnote it pointed out that in light of the Supreme Court’s holding in Monasky that a child’s habitual residence should be determined by looking to the totality of the circumstances, to the extent that its prior caselaw in Larbie and other cases has prioritized the parents’ shared intent over other factors, it overruled that emphasis. 

Palomo v Howard, --- Fed.Appx. ----, 2020 WL 3989461 (Mem) (4th Cir., 2020) [Spain] [Petition granted]

In Palomo v Howard, --- Fed.Appx. ----, 2020 WL 3989461 (Mem) (4th Cir., 2020) (not selected for publication) Olga Rodriguez Palomo, a citizen and resident of Spain, commenced an action against Donald Ray Howard, a citizen and resident of the United States, seeking the return of their son pursuant to Hague Convention on the Civil Aspects of International Child Abduction and International Child Abduction Remedies Act. After a trial, the district court found for Palomo and ordered that the child be returned to his mother’s custody in Spain. Howard appeals. The Fourth Circuit reviewed the district court’s factual findings for clear error and its legal conclusions regarding domestic, foreign, and international law de novo. It reviewed the record and the district court’s thorough opinion and order and found no reversible error. It affirmed for the reasons stated by the district court. Palomo v. Howard, 426 F.Supp.3d 160 (M.D.N.C. 2019). It dispensed with oral argument because the facts and legal contentions were adequately presented in the materials before this court and argument would not aid the decisional process.

 

Da Silva v De aredes, --- F.3d ----, 2020 WL 1226492 (1st Cir., 2020) [Brazil] [Grave risk of harm] [Now settled][Petition denied]

In Da Silva v De aredes, --- F.3d ----, 2020 WL 1226492 (1st Cir., 2020) Marcelene de Aredes “wrongfully removed” her daughter A.C.A. from Brazil, and the child’s father petitioned for her return. De Aredes appealed from a district court order rejecting her defenses to return and ordering the return of A.C.A. to Brazil with A.C.A.’s father, Nelio Nelson Gomes da Silva. The First Circuit affirmed the district court’s decisions, with a technical caveat directing the district court modify the language of the injunctive decree that directs A.C.A.’s return to Brazil. Modification was necessary to prevent the injunction from being read to have made an inappropriate custody determination.

    De Aredes and da Silva, both Brazilian citizens, met in 1998 and soon after began dating in Muriaé, Brazil. The two lived together from 2007 to 2016. They were never married. In 2010, de Aredes gave birth to A.C.A., who was the natural child of da Silva. In February 2016, de Aredes and da Silva separated, and da Silva moved out of their home, to a house next door to de Aredes. M.A. and A.C.A. continued to reside with de Aredes in her home. The district court found that de Aredes had suffered some degree of abuse by da Silva. In September 2016, de Aredes took M.A. and A.C.A. to de Aredes’s parents’ house in Cuparaque, Brazil. De Aredes, M.A., and A.C.A. stayed in Cuparaque for a few months. During this time, da Silva did not travel to Cuparaque or visit A.C.A. In December 2016, and without da Silva’s consent or knowledge, de Aredes took the children to the United States. The Brazilian courts were never asked to determine custody or whether de Aredes had been abused. De Aredes, M.A., and A.C.A. arrived in the United States on or around December 17, 2016, without a visa or other permission to enter. De Aredes did not formally apply for asylum at that time. Immigration authorities released the three on recognizance and ordered de Aredes to attend an immigration hearing in Boston, Massachusetts. The three moved to East Boston immediately afterwards and the two children enrolled in public school.

 

On November 9, 2018, da Silva filed a Hague Convention petition seeking the return of A.C.A. to Brazil. De Aredes raised five affirmative defenses, only two of which were at issue here: (1) that returning A.C.A. to Brazil would subject A.C.A. to grave risk of physical or psychological harm, 22 U.S.C. § 9003(e)(2)(A); and (2) that da Silva did not file his petition within twelve months of A.C.A.’s wrongful removal, and A.C.A. was “now settled” in the United States. On appeal, de Aredes did not challenge the holding that da Silva made a prima facie case of wrongful removal. The district court concluded that de Aredes had wrongfully removed A.C.A. from Brazil and had not met her burdens of proof on the affirmative defenses. On October 28, 2019, the district court entered an injunction ordering that A.C.A. be returned to Brazil on January 2, 2020. De Aredes appealed the order on October 29, 2019.

 

The district court rejected de Aredes’s claim that returning A.C.A. to Brazil would expose A.C.A. to a grave risk of physical, sexual, and psychological harm. The district court found that da Silva had “rights of custody over” A.C.A., the removal was wrongful, and da Silva did not sit on his rights. The court found the relationship between the parents was “tumultuous” and “on occasion [da Silva] engaged in some degree of physical assault or abuse of [de Aredes].” It found the parental relationship “falls regrettably in the category of dysfunctional relationships that are known generally in all nations.” And it found the evidence of abuse of de Aredes was “not so pervasive” as to attribute that to da Silva’s other interactions with the family. Correctly stating that the grave risk of harm analysis was concerned with harm or potential harm to A.C.A., rather than de Aredes, the district court concluded that de Aredes failed to show by clear and convincing evidence the possible risk of harm to A.C.A. The grave risk defense requires de Aredes to show, by clear and convincing evidence, “there is a grave risk that ... return would expose the child to physical or psychological harm.” Danaipour, 286 F.3d at 13 . Further, the “harm must be ‘something greater than would normally be expected on taking a child away from one parent and passing [the child] to another.’” Walsh v. Walsh, 221 F.3d 204, 218 (1st Cir. 2000). It rejected De Aredes argument that the finding of “some degree” of abuse of de Aredes required a finding that A.C.A. would be exposed to grave risk. There was no claim that A.C.A. was ever herself abused. The claims here were largely that A.C.A. would be at grave risk from seeing the instances of conflict between her parents, or that the conflict between her parents demonstrated that A.C.A. would be at grave risk of da Silva abusing her in the future. But that degree of conflict does not come close to the witnessed abuse in Walsh v. Walsh.4 See 221 F.3d at 219-22. The district court found that, while da Silva “on occasion ... engaged in some degree of physical assault or abuse,” the abuse was not so severe as in Walsh. The court found that da Silva never abused A.C.A. The details of the abuse alleged were insufficient to support a finding of grave risk as to A.C.A. The district court committed no clear error in concluding that the “showings of physical abuse” were not “so pervasive” as to support a determination of grave risk of harm as to A.C.A.

 

Nor did the district court err in finding that de Aredes failed to show returning A.C.A. to Brazil would expose A.C.A. to grave risk of sexual harm. That assertion was primarily based on the testimony of M.A.’s therapist, about alleged sexual abuse of M.A. and de Aredes’s characterization of da Silva’s testimony as failing to explicitly deny abusing M.A., this being an admission of child abuse. Here, the alleged sexual abuse was not of A.C.A. De Aredes did not witness any sexual abuse as to A.C.A.’s sister. 

When the petition for return has been filed one year or more after the wrongful removal, as here, a district court may decline to order return if the child is now settled in the new country. Courts look to the totality of the circumstances in determining whether a child is now settled. A court may consider any relevant fact, including immigration status. The district court considered the relevant facts and found that A.C.A. was not now settled. Although it found that the evidence supported A.C.A.’s having “developed meaningful relationships and lasting emotional bonds with a community in East Boston,” the district court found that A.C.A.’s resiliency and ability to form bonds in Brazil would not make her return to Brazil an event that “wrench[ed] [her] out of a well-settled position.” In support, the district court properly considered the “unsettled character [of] the immigration status” of de Aredes, A.C.A., and M.A. Tthe evidence before the district court supported its finding that A.C.A. was not now settled, and that finding was not clearly erroneous. Although A.C.A. was engaged in school, she was repeatedly tardy and absent. During the 2017-2018 school year, A.C.A. was tardy on 40 days and absent 8 days, out of 167 days. In the first half of the 2018-2019 school year, she was tardy 41 out of 113 days. The district court could credit this administrative record as weighing against a finding that A.C.A. was now settled. As of October 26, 2018, just two weeks before the petition date, de Aredes seemed to struggle “to find a regular and steady employment [yet] at th[at] time however manage[d] to run the household.” A.C.A. was diagnosed with “adjustment disorder with depression or anxiety.” A.C.A. experienced a documented difficulty adjusting to her move to the United States and the absence of her father, grandparents, and friends in Brazil.