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Valero v. De Nevi

United States District Court, S.D. Florida, Miami Division

August 31, 2017


          FINAL ORDER


         Like most custody disputes, this case cries out for a resolution to be dictated by the parties who have the most to gain and lose-the parents. But like most custody disputes, the decision over the life of a child-in this case, 3½-year-old Carlos Felipe Viciedo Cadelo-is to be made not by those who love him-Petitioner father and Respondent mother-but by a stranger-a judge who has taken an oath to uphold the law. In this case, the applicable law is the Hague Convention on the Civil Aspects of International Child Abduction, signed by the two countries in question here: Canada and the United States; and the International Child Abduction Remedies Act of 1988, 42 U.S.C. §11603(b), passed by the United States Congress to implement the Hague Convention. The treaty dictates whether the custodial battle should be fought in a state court in Florida where the mother, Claudia Cadelo De Nevi, now lives or by a court in Quebec, Canada where the father, Raymel Viciedo Valero, has resided. And the heart-wrenching permanent ruling is to be made by this federal judge in Miami.

         The federal judge does not decide where the child will be better off, whether: (1) in Miami, where he presently receives needed care from professionals and a loving mother, who is a Cuban national and has sought asylum in the United States after fleeing Canada where she lived, on and off, for more than a year near the child's father; or (2) with the child's father, also a Cuban national who works in rural Quebec and now lives in a small town, Drummondville, after residing in a very small village, Saint-Guillaume, on and off, with the mother and child.

         Rather, the narrow issue before this Court is to decide: (1) if the mother wrongfully removed the child from Canada in late September 2016; and (2) if so proven by the father petitioning for the child's return to Quebec, whether the mother has met her burden to prove that the return of the child would cause great risk of physical or psychological harm to the child.

         I. THE LAW

         The Hague Convention requires Petitioner father to prove, by a preponderance of the evidence, three elements: (1) the habitual residence of the child immediately before the date of the alleged wrongful removal; (2) whether the removal was in breach of the father's custody rights under Canadian law; and (3) whether the father exercised custody rights at the time of the alleged wrongful removal. If the father proves the facts to support those three elements, then Respondent mother has the opportunity to prove, as an affirmative defense under Article 13(b) of the Hague Convention, that there is a grave risk that the child's return to Quebec would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. Respondent mother opposing the child's return to Canada bears the burden of establishing the grave risk exception by clear and convincing evidence. See 42 U.S.C. §11603(e)(2)(A).

         II. THE FACTS

         Most of the facts are undisputed. The father is a Cuban national who has become a resident in Quebec, Canada. The mother is a Cuban national who now seeks political asylum in the United States, but previously lived with the father and their son in Quebec, Canada from March 25, 2016 to September 20, 2016 before she removed the child to the United States. Before that six-month stay in Quebec, the mother had already lived in Canada from November 14, 2015 to January 18, 2016; from September 24, 2015 to October 26, 2015; from February 7, 2015 to March 2, 2015; and from March 23, 2014 to September 21, 2014.

         The mother travelled back and forth from Canada to Cuba to receive cancer treatment, which unfortunately resulted in the death of the couple's second unborn child. The dates of the mother's stays in Canada are not in dispute, but their legal significance on a Canadian visitor's visa was hotly debated.

         The parties also disputed the couple's living conditions while in Canada; the amount of financial support provided by the father; the existence of healthcare insurance in Canada; the availability of therapists for the child and how to pay for therapy; and the degree of deterioration of the unmarried couple's relationship. As in most custody fights, the unfortunate role of the lawyers was to present all the negative aspects of each parent. And that they did. Thus, the father was presented as a controlling individual, obsessive over neatness and order in his two-bedroom apartment. He was shown to be authoritative, demanding, and somewhat arrogant, and during a three-day visit by a friend, Paloma Duong from Boston, as an ungracious host. The father spent money on his cars and paid the rent when the couple separated, but at the very end of the mother's stay in Canada bought food from the benefits received from the Quebec authorities provided for the child's welfare.

         On the other hand, the mother was shown as a woman who used some of the child's welfare money to travel to Cuba with the child. She did not like living with no car in a village in rural Quebec with one main road and 1500 inhabitants, no major supermarkets, and substantial isolation compared to metropolitan Miami. She testified that there is plenty of food in Quebec compared to Havana, but of course, that Miami is better than both.

         III. FINDINGS

         A. Habitual Residence

         The Court easily finds that the habitual residence of the child before his removal by the mother in late September 2016 was Quebec, Canada. The mother's attorney complained throughout the trial and in closing argument that the mother's habitual residence at the time of the alleged removal was in Cuba. It is undisputed that the mother had a physical residence in Cuba and received medical treatment in Cuba, where both parents and the child were born. But, both parties agreed that Cuba, which incidentally is not a signatory to the Hague Convention, was a country that both parents abandoned and a country where neither parent wants to exercise parental rights. Thus, the Court declined to hear more evidence about Cuba. The mother's counsel argued that since the alleged habitual residence of the child was Cuba at the time of the removal from Canada, then this Court is powerless to rule under the Hague Convention. ...

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