JOHN E. STEELE, District Judge.
This matter comes before the Court on Petitioner Katya Roque-Gomez's Petition for Return of Minor Child (Doc. #1) filed on July 18, 2014. Respondent Irineo Tellez-Martinez filed an Answer and Affirmative Defenses (Doc. #16) on September 22, 2014. After ordering expedited pretrial proceedings, the Court conducted a bench trial on November 14, 2014.
The Petition is filed pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (the "Hague Convention"), Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 97, reprinted in 51 Fed. Reg. 10,493 (Mar. 26, 1986) and the International Child Abduction Remedies Act ("ICARA"), 22 U.S.C. § 9001
The general principles relating to the Hague Convention are well-settled. To address the harm done to children
The Hague Convention mandates the return of children to their prior circumstances if one parent's removal or retention violated the custody rights of the other parent and was therefore "wrongful." Hague Convention art. 12; 22 U.S.C. § 9001(a)(4). The removal or retention of a child is "wrongful" where it (1) violates the "rights of custody" of the non-abducting/non-retaining person "under the law of the State in which the child was habitually resident immediately before the removal or retention," and (2) the rights of custody were actually being exercised at the time of the removal or retention, or would have been exercised but for the removal or retention. Hague Convention art. 3;
The general rule that a wrongfully removed or retained child must be returned is subject to six exceptions, each of which may excuse the return of the child. Hague Convention art. 12, 13, 20. A court is not bound to order the return of a child if respondent demonstrates by a preponderance of the evidence
Based upon the evidence and testimony that the Court found to be credible, the Court makes the following findings of fact:
Katya Roque-Gomez (Petitioner) and Irineo Tellez-Martinez (Respondent) are natural born citizens of Mexico; neither is a United States citizen. Respondent entered the United States illegally in 1999; it is unclear when Petitioner first came to the United States, but she also entered illegally. At the time of Petitioner's entry into the United States, she was lawfully married in Mexico to another man and there is no evidence that the marriage has ever been dissolved.
Petitioner met Respondent in either September or November 2002, and they began dating. In January 2013, Petitioner became pregnant. Respondent testified that he told Petitioner he would be responsible for the child, and asked if she wanted to marry him. Petitioner told Respondent she could not marry him because she was already married in Mexico. Petitioner and Respondent began living together in Fort Myers, Florida, and Petitioner gave birth to their first son, B.T.R., on September 24, 2003. The parties' second son, K.T.R. (collectively with B.T.R., the "children") was born three years later on September 12, 2006. Both children were born in Lee County, Florida, and are citizens of the United States, as well as Mexican nationals.
Petitioner and Respondent never married due to Petitioner's existing marriage. Nonetheless, they lived as a family unit in Lee County, Florida from early 2003 to August 2008. B.T.R. was enrolled in school in Lee County, Joint Ex. 4, obtained regular medical treatment in Lee County, Joint Ex. 3, and participated in normal family activities during these years. Petitioner's two younger siblings also lived with them, and in 2008, Respondent bought a house in Cape Coral, Florida in which they were all going to reside.
In August 2008, Petitioner decided to return to Hidalgo, Mexico with her two children. Respondent purchased bus tickets for Petitioner and their two children, and both Petitioner and Respondent executed a Power of Attorney authorizing Petitioner "to travel with our sons between the United States and Mexico and to have temporary custody of them in reference to health care, hospitalization and all parental type responsibilities." Joint Ex. 10.
The parties disagree on the purpose and anticipated duration of this move. Petitioner testified she went to Mexico because she wanted to see her family and because she had an abnormal pap smear test result and wanted medical care. Petitioner further testified that this was a permanent move, and that Respondent agreed that she and the children would live in Mexico permanently. According to Petitioner, Respondent agreed he would come to Mexico in December 2008, and in the meantime would send her money. Petitioner took all of her siblings' belongings and her children's passports, but did not take all of her belongings or those of the children.
Respondent, on the other hand, testified he never agreed that Petitioner could permanently remove the children from Florida to Mexico, and that this was to be a temporary move which would allow Petitioner to visit her mother and take her younger siblings back to Mexico, and allow their children to visit their grandmother. Respondent testified that both Petitioner and the children were to return to the United States after a few months, in time for school in the United States. B.T.R. was enrolled in elementary school in Cape Coral, Florida, beginning January 2009. Joint Exhibit 4. Respondent further testified that while Petitioner initially told him she was going to see her mother for a month, she later admitted she had lied, she wanted to settle in Mexico, and she was not going to return the children. Respondent denied stating that he intended to move back to Mexico, or join Petitioner in December 2008 in Mexico. There was no evidence that Respondent has returned to Mexico.
Petitioner began living at her mother's house with her mother, her two siblings, and two of her children in Hidalgo, Mexico. When she arrived in Mexico in August 2008, Petitioner set up a mobile kitchen with her mother, then obtained various other employment. B.T.R. developed normal family ties in Mexico and acclimated to Hidalgo as his new residence. B.T.R. lived with his mother and the others, attended and did well in school, Joint Exhibit 5, attended church, received regular medical care at a health center, played on organized basketball and soccer teams, and developed friendly relationships with family members and other children. Respondent had weekly telephone calls with his children for the first six months. After that, Petitioner told Respondent he had no permission to speak with the children and his relationship with Petitioner terminated. From August 2008 until approximately April 2012, Respondent regularly sent money orders to Petitioner in Mexico to aid in the care of the children. Joint Ex. 12. Respondent testified that from August 2008 until June 2012, he would call Petitioner weekly to discuss how the children were doing and other things. Respondent took no legal action to obtain the return of his children to the United States.
Petitioner testified her relationship with Respondent came to end in February 2009, because of his infidelity. Respondent denied any such infidelity.
In 2010, Respondent married Bertha Alicia Tafoya, a United States citizen, and currently resides with his wife, son, and stepdaughter in Cape Coral, Florida. Respondent, through counsel, has filed a petition with United States immigration authorities to obtain legal status as the spouse of a United States citizen. Joint Ex. 11. That application has been approved, and Respondent's waiver of the penalty for his illegal entry is to be submitted by counsel; while this does not change his illegal status, there have been no attempts to deport Respondent despite his disclosure to the government of his presence in the United States and the address at which he is residing. Joint Ex. 11. Respondent filed an income tax return for 2012, Joint Ex. 9, and does not anticipate any deportation effort while his application is pending.
Both parties agree that for approximately a year prior to August 2012, Respondent began insisting that Petitioner send his children to Florida for "vacation." Petitioner would not send both children at the same time, but agreed to send B.T.R. for a two month summer vacation on the condition that B.T.R. then be returned to Mexico. If B.T.R. was returned, Petitioner would allow their other son, K.T.R., to go to Florida in December 2012, on vacation. Respondent caused the purchase of roundtrip airfare for B.T.R., who arrived in Miami, Florida on June 12, 2012, and was set to return to Mexico on August 21, 2012. Shortly after B.T.R.'s arrival in Florida, Respondent purchased B.T.R. a cellular phone so he could remain in contact with Petitioner.
Respondent testified that immediately upon B.T.R.'s arrival, Respondent noticed that something was wrong with his son's teeth. A dentist subsequently found that B.T.R. had multiple (14) cavities. Respondent informed Petitioner that he could not send B.T.R. back to Mexico on August 21, as previously agreed, because B.T.R. was in need of dental care that would take ten months to complete. Respondent testified that after he told Petitioner about the needed dental work, they agreed that the work would be finished in the United States and B.T.R. would then be returned to Mexico in December 2012. Petitioner, on the other hand, testified that she told Respondent she could obtain dental care in Mexico, and Respondent should return B.T.R. to Mexico as agreed.
Medical records reflect that the first dental examination occurred on August 29, 2012, and the dentist was informed that B.T.R. just came back from three years in Mexico and some of his teeth hurt. Joint Ex. 2. B.T.R. received dental treatments on seven (7) subsequent dates, ending on December 31, 2012. Joint Ex. 2. B.T.R. next had a dental examination approximately eighteen months later on June 20, 2014, followed by six (6) treatments in July and August 2014. Joint Ex. 2. Respondent testified that the dental work was still not complete as of the trial date because B.T.R. needed a root canal.
Petitioner denied any agreement for a delayed return of B.T.R. to Mexico past August 21, 2012, and testified that after her son was not returned in August as agreed, she begged for B.T.R.'s return, but Respondent refused. Petitioner subsequently attempted to illegally enter the United States to retrieve B.T.R., but was detained at the border. When she returned to Hidalgo, Mexico, Petitioner went to the Ministry of Foreign Relations for assistance on obtaining the return of her son. Petitioner testified that she never agreed that B.T.R. could stay in Florida permanently, and continued to unsuccessfully ask Respondent to return him to Mexico.
Respondent testified that Petitioner sent him a letter saying he needed to send B.T.R. back to Mexico or face a kidnapping charge, which caused him to hire an attorney for advice. On August 24, 2012, Respondent's attorney filed a Petition to Establish Paternity in the Circuit Court of the Twentieth Judicial Circuit in and for Lee County, Florida. This Petition was subsequently dismissed because of the inability to obtain service of process upon Petitioner. The testimony also shows that Petitioner sought help from the Mexican Central Authority in September 2012.
Respondent testified that he had intended to send B.T.R. back to Mexico in December 2012, but could not locate Petitioner by telephone or with messages. Respondent therefore did not sent B.T.R. to Mexico, and continued the dental treatments in Florida. Respondent testified that it was not until B.T.R.'s birthday on September 23, 2013, that Petitioner sent B.T.R. a message on his cell phone.
Petitioner testified that she currently speaks to B.T.R. two or three times a week through Facebook. B.T.R. tells Petitioner that he is doing very well in school and has friends, but misses his little brother a lot, and sometimes asks Petitioner to send his brother back to the United States.
Additional facts and resolution of material conflicts in the testimony will be set forth as necessary to resolve various issues.
As a preliminary matter, the Court finds that the paternity rights of Respondent, although not mentioned by the parties, merit some discussion.
It is undisputed that Petitioner was legally married to another person in Mexico at the times B.T.R. was conceived and born in the United States. It is also undisputed that Respondent is the biological father of B.T.R., that Respondent's name was listed as "father" on B.T.R.'s birth certificate, that Petitioner and Respondent did not marry because they knew Petitioner was already married, and that Petitioner's husband had no involvement with Petitioner or B.T.R. in the United States or in raising B.T.R. Respondent has always acted as and been represented to be B.T.R.'s father, has acknowledged responsibility for support, and is the only father B.T.R. has ever known.
Under Florida law, there is a strong presumption "that a man married to the biological mother is in fact the legal father of the child. This presumption is one of the strongest rebuttable presumptions known to law and is based on the child's interest in legitimacy and the public policy of protecting the welfare of the child."
In this matter, Petitioner was lawfully married to another at the time of B.T.R.'s birth; thus, Petitioner's husband is considered the legal father of B.T.R. at the time of his birth. There is, however, no evidence indicating that Petitioner's marriage was intact or that her husband recognized the child as his own. Indeed, the evidence establishes that the marriage was not intact and there is no evidence that the husband recognized B.T.R. as his own or even knew of his existence. To the contrary, the evidence shows that Respondent has acted as B.T.R's father and had his name entered on B.T.R.'s birth certificate as the father.
Petitioner asserts Respondent wrongfully removed B.T.R. from the Republic of Mexico and has wrongfully retained him in the United States. The two threshold issues in any Hague Convention case are easily satisfied. The evidence shows, and the parties agree, that the child is under 16 years of age. It is also clear that the Republic of Mexico and the United States became signatories to the Hague Convention prior to the events at issue in this case.
Petitioner must establish that B.T.R.'s habitual residence was Mexico at the time of the alleged removal or retention. Hague Convention art. 3. This requires the Court to first determine when the alleged wrongful removal or retention took place, because the only point in time when habitual residence is relevant under the Hague Convention is immediately before the removal or retention.
Neither the Hague Convention nor ICARA define habitual residence. Rather than a definition, the Eleventh Circuit has adopted a two-part framework to assist in the habitual residence analysis.
The second question considered in determining habitual residence is whether there was an actual change in geography coupled with the passage of a sufficient length of time for the child to have become acclimatized.
Here, the evidence undisputedly shows that B.T.R.'s original habitual residence was in Florida from the time of his birth until August 2008, when Petitioner took him to Mexico. The testimony of Petitioner and Respondent was, perhaps not unexpectedly, in conflict on whether the parties intended to abandon Florida in favor of Mexico as a habitual residence. Petitioner testified that Respondent knew her return to Mexico was to be permanent, and that Respondent was going to join them in December 2008. Respondent, on the other hand, testified that Petitioner agreed that the trip to Mexico would be temporary, and denied that he expressed an intent to return to Mexico. The Court need not resolve this factual dispute because the Court finds that the credible testimony establishes that Respondent acquiesced in Mexico as the habitual residence of the children.
"Subsequent acquiescence requires more than an isolated statement to a third-party. Each of the words and actions of a parent during the separation are not to be scrutinized for a possible waiver of custody rights . . . acquiescence under the convention requires either: 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."
The evidence shows that Respondent had a consistent attitude of acquiescence over a significant period to time. Respondent knew where Petitioner was residing in Mexico, but made no attempt to secure the children's permanent return to Florida. By August 2012, even Respondent viewed Mexico as B.T.R.'s habitual residence. Respondent testified that he requested B.T.R. be sent to Florida for "vacation," purchased a
B.T.R.'s 2008 relocation to Mexico undisputedly constitutes an actual change in geography, which was coupled with a stay of sufficient duration to result in acclimation by the child. The evidence shows that B.T.R. arrived in Mexico in August 2008 and did not return to Florida until June 2012, nearly four years later. While in Mexico, B.T.R. attended school and church, developed familial relationships, maintained friendships with other children, played team sports, had a pet, and spoke primarily in Spanish. Because there is proof of acquiescence, a change in geography, and B.T.R.'s acclimation over the passage of a substantial amount of time, the Court finds that Petitioner has established by a preponderance of the evidence that B.T.R.'s habitual residence on or about August 21, 2012, was Hidalgo, Mexico.
Petitioner must also establish that there has been a "removal" or "retention" within the meaning of the Hague Convention. A child is removed or retained within the meaning of the Hague Convention if the child has been removed or prevented from returning to his usual family and social environment.
The Court must next determine whether the retention was wrongful.
Petitioner argues that her "right to custody" is established by the Mexican doctrine of patria potestas (parental authority/responsibility), as codified in the Civil Code for the State of Hidalgo, Mexico. (
The doctrine of patria potestas provides parents with certain rights and responsibilities regarding their children, including the custody and care of the children.
Here, the evidence amply establishes that Petitioner and Respondent have not agreed to the terms of exertion of parental authority/responsibility over B.T.R. and that the matter has not been decided by a judge. Thus, the Court finds that the rights and obligations provided by the doctrine of patria potestas create a "right of custody" and concludes that the rights and obligations of Petitioner have not been severed. Most other courts have concluded that the doctrine indeed confers such rights.
While the Hague Convention does not define the "exercise" of rights of custody, 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."
Petitioner has established she was exercising her rights of custody at the time the child was wrongfully retained. As detailed above, B.T.R. lived with Petitioner for nearly four years before visiting his father in Florida, and Petitioner exercised all the normal functions of a parent, including her right to consent to the child's travel. This clearly amounts to exercising one's custody rights. Furthermore, Petitioner testified that she attempted to illegally enter United States to retrieve her son, and upon failing to do so, sought help from the Mexican Central Authority. This conduct supports Petitioner's position that she did not abandon the child or acquiesce in his continued presence in the United States. Accordingly, Petitioner has met her burden of establishing that B.T.R. was wrongfully retained by Respondent and should be returned to Mexico, his habitual place of residence.
Having satisfied the burden of establishing a prima facie case of wrongful retention, the child must be returned to his State of habitual residence unless Respondent can establish an affirmative defense. The mandated return of a wrongfully retained child is subject to six exceptions, all of which are to be applied narrowly.
A court is not bound to order the return of a child if the respondent demonstrates by a preponderance of the evidence that the person having care of the child was not exercising rights of custody at the time of the removal or retention of the child. Hague Convention, art. 13(a); 22 U.S.C. § 9003(e)(2)(B). The Court has already found that Petitioner has established by a preponderance of the evidence that she
A court is not bound to order the return of a child if respondent demonstrates by a preponderance of the evidence that the person having care of the child had consented to or subsequently acquiesced in the removal or retention of the child. Hague Convention art. 13a; 22 U.S.C. § 9003(e)(2)(B). "The 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."
Respondent argues that Petitioner's failure to communicate with B.T.R. after the retention constitutes acquiescence. The Court disagrees. As stated earlier, "acquiescence under the convention requires either: 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."
A court is not bound to order the return of a child if respondent demonstrates by a preponderance of the evidence that "the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views." Hague Convention, art. 13; 22 U.S.C. § 9003(e)(2)(A). This provides a separate and independent basis for a court to refuse to return a child to the country of habitual residency,
The evidence in this matter clearly establishes that B.T.R. does not want to go back to Mexico. In fact, Petitioner herself testified that B.T.R. asked her to send his brother K.T.R. to Florida. B.T.R. is only eleven years old, and by all accounts has a tendency to be untruthful. The Court finds that the entirety of the evidences shows that B.T.R. has not attained a sufficient degree of maturity to warrant consideration of his opinion. Furthermore, the Court finds that the objectives of the Hague Convention outweigh the minor child's wishes, even if fully considered.
A court is not obligated to return a child when return proceedings are commenced a year or more after the alleged removal or retention and it is demonstrated that the child is settled in its new environment. Hague Convention, art. 12; 22 U.S.C. § 9003(e)(2)(A). Equitable tolling of this time limitation is not available.
This action was commenced on July 14, 2014, about ten months after the expiration of the one year period following the wrongful retention of the minor child which began on August 22, 2012. Thus, the Court must determine whether B.T.R. is settled in his new environment.
Courts may consider any relevant factor concerning a child's living arrangements in determining whether a child is now settled in his new environment.
In the instant case, the evidence shows that almost all factors favor a finding that B.T.R. is now settled in Lee County, Florida.
B.T.R. is eleven years old and has lived in Florida for approximately seven years of his life. He has currently resided in Florida since August 12, 2012, and lives with his father, stepmother, and stepsister as a typical family unit in a suitable residence. B.T.R. is involved in a very stable living arrangement with his biological father and his new family. B.T.R. has lived in the same residence, in which he has his own room, for a majority of the time since he returned to Florida. B.T.R. attends school regularly and has done so since his return to the United States in 2012. The evidence indicates that B.T.R. struggled with school upon his return to Florida due to language barriers, but B.T.R., with the help of his stepmother, has worked to garner a better understanding of the English language, resulting in significant improvements at school. B.T.R. has made new friends at school and in his neighborhood and has developed strong relationships with his stepmother and step-siblings. Respondent has lived in the United States since 1999, currently works as a day laborer, has filed a U.S. Income Tax return, and is currently married to an American citizen. Although Respondent's immigration status is currently that of an illegal alien, he has taken steps to secure a permanent United States visa. There is nothing to suggest that, at this moment, or in the near future, the immigration status of Respondent is likely to upset the stability of the child's life here in Florida. B.T.R. is a United States citizen, and as such is not subject to deportation. Under the circumstances, the Court finds that B.T.R. is well-settled in Florida and that any uncertainty caused by Respondent's immigration status is minimal.
The Court finds that Respondent has established by a preponderance of the evidence that this action was initiated more than a year after the wrongful retention of B.T.R., and that B.T.R. is now well-settled in his new location. The Court further finds, in the exercise of its discretion, that the return of the minor child is therefore not warranted.
Accordingly, it is hereby
1. Petitioner's Petition for Return of Minor Child (Doc. #1) is
2. The Clerk of the Court is directed to release any documents surrendered by Respondent to counsel for Respondent or Respondent.
3. The Clerk is further directed to enter judgment accordingly, terminate all pending motions and deadlines, and close the case.
