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Campomanes Flores v. Elias-Arata

United States District Court, M.D. Florida, Jacksonville Division

July 20, 2018

MIGUEL BENITO CAMPOMANES FLORES, Petitioner,
v.
MARIA FERNANDA ORBEGOSO ELIAS-ARATA, Respondent.

          ORDER

          MARCIA MORALES HOWARD UNITED SLATES DISTRICT JUDGE.

         THIS CAUSE is before the Court on the Verified Petition for Return of Minor Child to Petitioner and Petition for Immediate Issuance of Show Cause Order to Respondent (Doc. 1; Verified Petition), filed on January 25, 2018. Petitioner filed the Verified Petition pursuant to The Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”), Oct. 25, 1980, T.I.A.S. No. 11670, as implemented by the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. § 9001, et seq.[1] In the Verified Petition, Miguel Benito Campomanes Flores (the Father), a citizen and resident of Peru, requests the return of his child, J.C.O. (the Child), from the United States to Peru. See Verified Petition at 2, 4-5. Respondent Maria Fernanda Orbegoso Elias-Arata (the Mother), the Child's mother, filed an answer to the Verified Petition on February 16, 2018. See Answer and Affirmative Defenses (Doc. 13; Answer). At present, the Child lives with the Mother in Fernandina Beach, Florida at the home of the Child's maternal grandmother. Although the parties attempted to resolve this case through mediation, see Notice of Mediation Conference (Doc. 21), [2] ultimately, the matter came before the Court for an evidentiary hearing on June 11-12, 2018. See Minute Entry (Docs. 35, 38; the Hearing). The Mother and Father appeared in person with their counsel at the Hearing. See Minute Entry (Doc. 35). Over the course of the two-day Hearing, the Court heard in-person testimony from both parties and the Child's maternal grandfather, as well as the testimony via videoconference of the Child's former nanny in Peru. Id. By agreement of the parties, and largely without any corresponding testimony from the witnesses, the Court also received numerous documentary exhibits into evidence. Id. Both parties submitted trial briefs prior to the Hearing, and at the conclusion of the Hearing, counsel presented oral closing arguments. See Petitioner's Trial Brief (Doc. 31), filed June 6, 2018; Respondent's Trial Brief (Doc. 32), filed June 8, 2018; Minute Entry (Doc. 38). Accordingly, this matter is ripe for review.

         I. Background

         The Father and Mother, both citizens of Peru, first met in high school when they were fifteen years old. Now in their late twenties, the parties have had a relationship over the last thirteen years with frequent break-ups and reconciliations. During the course of their on-again, off-again relationship, the parties had a son together, the Child, who was born in Peru in January of 2013. After the Child's birth, during the time periods when the Mother and Father were not a couple, the parties divided the parenting responsibilities and the Child spent time with both parents. The Mother lived in an apartment owned by the Father's mother, and the Father lived with his parents. Both the Mother and Father worked, and a nanny, Ana Victoria Sanchez del Castillo, cared for the Child during the week. On two occasions, when they were eighteen years old, and again shortly before the events of this lawsuit, the parties had plans to get married. However, in May of 2017, the Father called off the wedding and terminated the relationship.

         The Mother has long desired to move to the United States. Her mother is a United States citizen living in Fernandina Beach, Florida, and her father, who lives in Miami, Florida, has been a legal permanent resident of the United States since 2013. In 2010, during a time when the Mother and Father were not in a relationship, the Mother began the process of obtaining legal permanent resident status in the United States. When the Mother and Father reconciled a few months later, the Mother informed the Father of her pending permanent resident application. Later, when the Mother was pregnant with the Child, the Mother reminded the Father of her application for permanent resident status in the United States. In 2016, the parties agreed to include the Child in the Mother's application for permanent resident status, and the maternal grandfather assisted with this process. The United States granted the Mother's petition at some point in early 2017. See Evidentiary Hearing Vol. I Transcript (Doc. 41; Vol. I Tr.) at 79; Pet. Exs. 4-5.

         Although it is unclear from the record when these plans began, at some point the parties agreed that the Child would travel with the Mother to the United States in June of 2017.[3] As such, in May of 2017, the Mother purchased a round-trip ticket from Lima, Peru, to the United States, and back to Peru. In addition, on May 15, 2017, the Mother and Father executed and notarized a form titled “Consent for Children Travelling Abroad.” See Pet. Ex. 1 (Consent to Travel Form). The Form states that in accordance with Peruvian law, the Father and Mother “hereby give consent for their 4-year old son [the Child] to travel from Peru to the United States of America and back by air (Avianca Airline).” Id. According to the Consent to Travel Form:

It is hereby stated for the record that the Child will travel with [the Mother]; she will take care of the Child during the stay in the destination above. Likewise, the appearing parties declare to know that this consent is valid for 90 (Ninety) Days after the issuance date. The minor will travel to the United States on June 13, 2017 and return to Peru on August 25, 2017.

Id. The parties selected a return date of August 25, 2017, so that the Child could spend the Father's August 26th birthday with him. Prior to her departure, the Mother quit her job, and disposed of her furniture and other belongings. On June 10, 2017, the Mother moved out of the apartment where she was living. On June 12, 2017, the day before she was set to depart for the United States with the Child, the Mother filed a domestic violence claim against the father.[4]

         On June 13, 2017, the Mother and Child traveled to the United States and have not returned to Peru since, remaining instead at the Child's maternal grandmother's house in Fernandina Beach, Florida. Soon after moving in with the maternal grandmother, the Mother furnished a room for the Child, started working, and enrolled the Child in daycare, all with the Father's knowledge and without his objection. Indeed, the Father communicated frequently with the Mother using Facebook Messenger, and stayed in regular contact with the Child. However, in July of 2017, a disagreement arose between the parties regarding the Child's future and as a result, the Mother filed a petition in Peru for the “Change of Residence of a Minor.” See Resp. Ex. 1 (Change of Residence Petition).[5] In the Change of Residence Petition, the Mother petitioned the Peruvian court for “the change of regular residency of [the Child], who is four (04) years old, changing his address from the Republic of Peru to the United States of North America.” Id. at 2. After the Mother and Child failed to return to Peru in August as scheduled, the Father filed a request on October 2, 2017, for the international return of the Child with the Peruvian Central Authority for the application of the Hague Convention. See Pet. Ex. 2. The Verified Petition followed in January. In the Verified Petition, the Father contends that the Mother either wrongfully removed the Child from Peru under false pretenses, or is unlawfully retaining the Child in the United States without the Father's consent.

         II. Applicable Law

         A. Prima Facie Case

         The purpose of the Hague Convention is “to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.” See Convention, pmbl. “The Convention generally intends to restore the pre-abduction status quo and deter parents from crossing borders in search of a more sympathetic court for custody hearings.” See Hanley v. Roy, 485 F.3d 641, 644 (11th Cir. 2007). As such, “[t]he court's inquiry is limited to the merits of the abduction claim and not the merits of the underlying custody battle.” See Ruiz v. Tenorio, 392 F.3d 1247, 1250 (11th Cir. 2004). The Hague Convention “applies to children under sixteen years of age who are ‘habitually resident' in a contracting state (Convention, Art. 4) and are ‘wrongfully removed' to another contracting state (Convention, Art. 1).” Seaman v. Peterson, 766 F.3d 1252, 1257 (11th Cir. 2014).[6] A removal is “wrongful” within the meaning of the Hague Convention where:

a. it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b. at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph a above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

See Convention, Art. 3. The petitioner bears the burden of establishing by a preponderance of the evidence that “the child has been wrongfully removed or retained within the meaning of the Convention.” See 22 U.S.C. § 9003(e)(1)(A). If a petitioner establishes a wrongful removal or retention, then “the authority concerned shall order the return of the child forthwith, ” unless the respondent establishes one of the affirmative defenses enumerated in the Convention. See Convention, Art. 12; see also Baran v. Beaty, 526 F.3d 1340, 1344 (11th Cir. 2008).

         To prevail on the Verified Petition, the Father must establish that: (1) the Minor Child was “habitually resident” in Peru at the time the Mother removed him from Peru or retained him in the United States; (2) the removal or retention was in breach of the Father's custody rights under Peruvian law, and (3) the Father had been exercising those rights at the time of removal or retention. See Ruiz, 392 F.3d at 1251. In this case, there is no legitimate dispute that the Father has custody rights with respect to the Child under Peruvian law and that the Father was regularly exercising those rights prior to the removal.[7] Additionally, the parties agree that the Child is under the age of sixteen, was born in Peru, and had lived his entire life in Peru until June 13, 2017. Nonetheless, the Mother contends that the Father cannot satisfy his prima facie case because Peru is not the Child's habitual residence. According to the Mother, prior to the purported wrongful removal or retention, the parties “shared a settled intent for the Child to abandon Peru and take up a new residence in the United States.” See Respondent's Trial Brief at 13.

         Neither the Hague Convention nor ICARA define the term “habitual residence.” See Ruiz, 392 F.3d at 1252. The term is intended to be free from “‘technical rules, which can produce rigidity and inconsistencies as between legal systems.'” See id. (quoting In re Bates, No. CA 122.89 at 9-10, High Court of Justice, Fam.Div'n Ct. Royal Court of Justice, United Kingdom (1989)). Generally, a habitual residence requires only that “‘the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.'” Id. Recognizing the limited usefulness of such generalities, the Eleventh Circuit has adopted the approach set forth by the Ninth Circuit in Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001) for determining a child's habitual residence. See Ruiz, 392 F.3d at 1252. According to Ruiz and Mozes, “[t]he first step toward acquiring a new habitual residence is forming a settled intention to abandon the one left behind.” Id. (citing Mozes, 239 F.3d at 1075). Significantly, it is “‘the person or persons entitled to fix the place of the child's residence'” whose intention or purpose must be considered. Id. at 1253 (quoting Mozes, 239 F.3d at 1076). However, “when the persons entitled to fix the child's residence do not agree on where it has been fixed, ” as in this case, the analysis is more difficult. Id. The courts discussed three different factual scenarios in which such a disagreement may arise, and observed that the more difficult cases occur where the parents agreed to a child's stay abroad for a period of ambiguous duration. Id. In such cases, the courts reasoned:

“Sometimes the circumstances surrounding the child's stay are such that despite the lack of perfect consensus, the court finds the parents to have shared a settled mutual intent that the stay last indefinitely. When this is the case, we can reasonably infer a mutual abandonment of the child's prior habitual residence. Other times, however, circumstances are such that, even though the exact length of the stay was left open to negotiation, the court is able to find no settled mutual intent from which such abandonment can be inferred.”

Id. (quoting Mozes, 239 F.3d at 1077-78).

         However, while crucial, the settled intention of the parents alone cannot transform the habitual residence. Id. Instead, there must also be “an actual change in geography and the passage of a sufficient length of time for the child to have become acclimatized.” Id. Nonetheless, where parental intent is uncertain or contrary, courts must be “slow to infer” a change in habitual residence based on the level of a child's contact with the new country, such as in school or with friends. Id. at 1253-54. Because children can be “remarkably adaptable, ” the significance of such contacts is difficult to discern and “‘[t]he greater the ease with which habitual residence may be shifted without the consent of both parents, the greater the incentive to try.'” Id. at 1254 (quoting Mozes, 239 F.3d at 1079). Last, the Ruiz and Mozes cases instruct that:

when there is no shared settled intent on the part of the parents to abandon the child's prior habitual residence, a court should find a change in habitual residence if the objective facts point unequivocally to a new habitual residence, or if the court could “say with confidence that the child's relative attachments to the two countries have changed to the point where requiring a return to the original forum would now be tantamount to taking the child out of the family and social environment in which its life has developed.”

Id. at 1254 (quoting Mozes, 239 F.3d at 1081).

         B. Affirmative Defenses

         As stated above, the Hague Convention also provides certain affirmative defenses to the return of a child. See Baran, 526 F.3d at 1344-45. “These affirmative defenses are to be narrowly construed to effectuate the purposes of the Convention and, even if proven, do not automatically preclude an order of return.” Id. at 1345. Two of the defenses require clear and convincing evidence:

1) that return would expose the child to a “grave risk” of “physical or psychological harm or otherwise place [the child] in an intolerable situation” and (2) that return of the child would not be permitted by “fundamental principles of the United States relating to the protection of human rights and fundamental freedoms.” Bader v. Kramer, 484 F.3d 666, 668 (4th Cir. 2007) (alteration in original) (quoting Miller v. Miller, 240 F.3d 392, 398 (4th Cir. 2001)). The other two defenses may be established by a preponderance of the evidence:
(1) that the petition for return was not filed within one year of the removal and the child is now well-settled in another country, and (2) that the petitioner was not actually exercising his custodial rights at the time of the removal or had consented to or acquiesced in the removal.

Id. at 668-69. Here, the Mother raises the affirmative defenses of consent or acquiescence. See Respondent's Trial Brief (Doc. 32) at 16-18. Specifically, the Mother maintains that prior to the Child's departure the Father consented to the Child's permanent relocation to the United States, or, after the Child's arrival in the United States, the Father acquiesced to the Child remaining here.

         If the Father establishes a prima face case for return of the Child, the Court may decline to order the return if the Mother establishes by a preponderance of the evidence that the Father “had consented to or acquiesced in the removal or retention.” See Hague Convention, Art. 13(a). The defenses of consent and acquiescence are narrow defenses that turn on the subjective intent of the parent who is alleged to have consented or acquiesced. See Baxter v. Baxter, 423 F.3d 363, 371 (3d Cir. 2005). These defenses are nonetheless analytically distinct in that “[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.” Id. The defense of “acquiescence has been held to require ‘an act or statement with the requisite formality, such as testimony in a judicial proceeding; a convincing written renunciation of rights; or a consistent attitude of acquiescence over a significant period of time.'” Id. (quoting Friedrich v. Friedrich, 78 F.3d 1060, 1070 (6th Cir. 1996)). Although “[c]onsent need not be expressed with the same degree of formality, ” id., it is still important to consider what the petitioner actually contemplated and agreed to, including the nature and scope of any consent given, and any conditions or limitations placed on that consent. Id. Significantly, “[t]he fact that a petitioner initially allows children to travel, and knows their location and how to contact them, does not necessarily constitute consent to removal or retention under the Convention.” Id.

         III. Discussion

         Prior to June 13, 2017, the Child had lived in Peru his entire life. As such, unless the Child's habitual residence changed when he came to the United States in June of 2017, the Child's habitual residence remains in Peru. See Mozes, 239 F.3d at 1077 (instructing that a change in habitual residence “requires an actual change in geography” (internal quotation omitted)). The Father maintains that the Child's habitual residence is Peru because the Child's visit to the United States was intended to be for only a limited period of time, and the Mother unilaterally decided to keep the Child in the United States. The Mother contends that the Child's habitual residence changed to the United States because, according to her, the parties shared a settled intent that the Child live in the United States as of June 13, 2017. In addition, the Mother asserts that return is not warranted, even if the Child's habitual residence is Peru, because the Father consented or acquiesced to the Child living in the United States. Thus, whether framed as a question of habitual residence, or as one of consent/acquiescence, the factual dispute at the heart of this case is whether the Father intended for the Child to live in the United States as of June 13, 2017, or thereafter acquiesced to this arrangement.[8] The parties' differing accounts of the June 13, 2017 trip are as follows.

         According to the Father, he agreed that the Child could visit the United States for the roughly two-month period from June 13, 2017, to August 25, 2017, as is documented on the Consent to Travel Form. The Father testified that when the Child returned to Peru in August, he was going to resume his studies there, and the parties would then plan the Child's next trip to the United States. See Vol. I Tr. at 107. The Father further testified to his understanding that the Mother had not yet decided whether, after the Child returned to Peru, she would remain in Peru as well, or return to the United States. Id. at 94.

         The Father maintains that the Mother first told him that she would not return to Peru with the Child via Facebook in July of 2017. The Father tried to convince the Mother to return on the agreed upon date, but the Mother refused, and at some point in July or August, the Mother told the Father that she had filed the Change of Residence Petition. According to the Father, the Mother refused to return to Peru unless the Father signed an agreement allowing the Child to live in the United States permanently, which he initially refused to do. Eventually, in an attempt to gain the return of the Child, the Father told the Mother he would sign the paperwork allowing the Child to live in the United States, but only if the Mother brought the Child back to Peru first. The Father testified at the Hearing that he was desperate and did not actually intend to sign the paperwork had the Mother returned to Peru. When it became clear to him that the Mother was not going to let the Child return, the Father attempted to obtain a visa to travel to the United States but his application was denied. The Father then sought a remedy under the Hague Convention.

         The Father concedes that he had agreed to allow the Child to obtain permanent resident status in the United States, and understood that, in order to keep that status, the Child would need to spend time in the United States. However, the Father testified to his understanding that the Child would live in Peru and travel to the United States at least once every six months, during the summer, mid-year, and end-of-the-year breaks, in order to maintain his residency status. See Vol. I Tr. at 90-93. The Father does believe it is beneficial to the Child to have permanent resident status in the United States and he does not want the Child to lose that status. Id. at 93. Nonetheless, the Father insists that he told the Mother on many occasions prior to the trip that he did not consent to the Child living permanently in the United States, id. at 100-01, and according to the Father, the parties had an ongoing disagreement about the coordination of the Child's studies between the United States and Peru, id. at 105-06.[9]

         The Mother's version of events differs from the Father's in significant respects. The Mother maintains that the purpose of the June 13, 2017 trip to the United States was to move here permanently with the Child. According to the Mother, throughout the course of her relationship with the Father, she was always open about her pending application for permanent resident status and her intention to move to the United States. In addition, the Mother testified that after she became pregnant she reminded the Father of her intention to live in the United States, and he told her: “‘Yes. Don't worry about that. We will arrange that.'” See Vol. I Tr. at 145. Indeed, the Mother asserts that she and the Father agreed to include the Child in her permanent resident application because they intended for the Child to live in the United States.

         As to the June 13, 2017 trip, the Mother testified that she told the Father that the purpose of this trip was to move to the United States. According to the Mother, she quit her job, disposed of her furniture, and moved out of the apartment because she was moving to the United States permanently with the Child. Likewise, the Mother obtained a job in the United States, enrolled the Child in daycare here, and furnished a room for the Child at the grandmother's house in Fernandina Beach, Florida. The Mother insists that the Father's awareness of these activities demonstrates his knowledge of the move's permanence. Specifically, the Mother testified that the “initial plan” was “that my [C]hild would remain permanently here [in the United States], begin school, and that I would visit him with my [C]hild in Peru. So the initial plan was that the [C]hild would live here and . . . we would coordinate the visits to Peru in accordance to his schooling and my job.” Vol. I Tr. at 151.

         The Mother conceded that she did initially intend to return to Peru in August of 2017, as shown on the Consent to Travel Form, but maintains that this return trip was only temporary, to allow the Child to spend the Father's birthday with the Father, and they were to return to the United States thereafter. See Vol. I Tr. at 147 (“I was planning to be a few weeks in Peru so he could be with his son. And after that I would return to the United States, because I had to go back to my work and my child had to go back to school.”) The Mother explained that when they returned to Peru in August, “[t]he plan was that he would give me a new permission so I could return to the United States so my son could continue school and I my job.” Id. at 157. She elaborated on the use of a short-term travel permit as follows:

The agreement that we had was that the traveling permits would be for a short period of time, so [the Father] always would know when we would return to the Peru, so for - the son could visit his father, so he would have the certainty, knowing a date when he would know, ‘Okay. This date I will be able to see my son for the next two weeks.' So that's why we had the short permits. If we had a long permit, and then if he broke up with me or I broke up with him, then I would be here and there would be no obligation for me to return, because I would have already this permission.

Id. at 160-61.[10]

         The Mother testified that in July of 2017, a disagreement arose between the parties because the Father sought to change the plan and have the Child study for at least two years in Peru. Id. at 151-52. In light of this disagreement, the Mother decided not to return to Peru in August of 2017, as initially scheduled, because she was afraid “of having, again, a discussion with him and not being able to follow our initial plan, ” specifically, the plan “for the child to stay here and study here [in the United States].” Id. at 152. The Mother was concerned the Father would not sign another consent to travel form and she would be unable to leave Peru with the Child. Id. at 161-62. The Mother explained that she “was afraid that we would have an argument about that. And I cannot stay in Peru. I don't have a job there. I have sold ...


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