Mendez v. May , 778 F.3d 337 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 15-1126
FEDERICO MENDEZ,
Petitioner, Appellee,
v.
MAYA K. MAY,
Respondent, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Leo T. Sorokin, U.S. District Judge]
Before
Lynch, Chief Judge,
Souter, Associate Justice,*
and Stahl, Circuit Judge.
David H. Chen, with whom John A. Sten and McDermott Will &
Emery LLP were on brief, for appellant.
Amber R. Cohen, with whom Cohen Cleary, P.C. was on brief, for
appellee.
February 13, 2015
*
Hon. David H. Souter, Associate Justice (ret.) of the
Supreme Court of the United States, sitting by designation.
STAHL, Circuit Judge. Petitioner-Appellee Federico
Mendez filed a petition pursuant to the Hague Convention on the
Civil Aspects of Child Abduction ("the Convention"), as implemented
by the International Child Abduction Remedies Act, 22 U.S.C. § 9001
et seq., to return his seven-year-old son C.F.F.M. to Argentina.
Petitioner claims that Respondent-Appellant Maya K. May, the
child's mother, wrongfully removed the child to the United States
in February 2014. After a three-day bench trial, the district
court granted the father's petition and ordered the child's return,
reasoning that, inter alia, C.F.F.M.'s habitual residence lay in
Argentina because Petitioner never fully agreed to allow C.F.F.M.
to move to the United States. We disagree, and reverse the
district court's grant of the petition and order returning the
child to Argentina.
I. Background
Petitioner is a citizen of Argentina who resides in
Buenos Aires. Respondent is a U.S. citizen and permanent resident
of Argentina. The two began dating in 2005 and lived in the U.S.
for a brief period of time before settling in Buenos Aires in 2006.
Respondent gave birth to their child, C.F.F.M., in Buenos Aires on
December 3, 2007. C.F.F.M. is a citizen of both Argentina and the
United States. He attended school in Buenos Aires from 2010
through the end of the Argentine school year in December 2013.
Though Petitioner and Respondent never married, the
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family lived together until 2009, when the couple's romantic
relationship deteriorated and Petitioner moved out.1 That summer,
the parties reached a child custody agreement which provided that
C.F.F.M. would reside with his mother and granted the father
visitation from Thursday evenings until Sunday nights. Per the
2009 agreement, Respondent could travel outside Argentina with
C.F.F.M. for fifteen days in the Argentine winter and up to
forty-five days during the Argentine summer; the agreement required
Petitioner to authorize Respondent's travel with C.F.F.M. in
accordance with that plan. Respondent took C.F.F.M. on multiple
trips to the United States in accordance with this plan.
The parties experienced difficulties in their parenting
relationship after they ceased cohabiting. In 2011, they argued
outside Respondent's apartment the day she returned from a
forty-five day trip to the United States with C.F.F.M. Although he
was not entitled to visitation that day, Petitioner asked to see
the child, and Respondent told him it was not a good time.
Petitioner forced his way into her apartment and pushed her to the
ground in the process. Later that year, the two engaged in a
yelling match in C.F.F.M.'s presence during a car ride. Petitioner
called Respondent "trash" and locked her out of the car, driving
away with the child. After that argument, Respondent denied
1
C.F.F.M. and Petitioner have not resided together since
Petitioner moved out of the family residence in 2009.
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Petitioner visitation for four months. Petitioner sought judicial
intervention and the Argentine family court restored his visitation
rights. Additionally, the parties filed domestic violence
complaints against each other. After an investigation, an
Argentine board issued a report finding that Respondent was the
victim of Petitioner's physical and psychological violence and that
C.F.F.M. was a victim insofar as he witnessed the fight in the car.
In December 2012, the parties negotiated and executed a
new coparenting agreement. Respondent retained custody and the
agreement reduced Petitioner's visitation. The 2012 agreement
permitted Respondent to travel abroad with the child for up to
forty-five days each year; Petitioner would execute trip-specific
authorization each time.
In spring 2013, Respondent began to consider leaving
Argentina to find work elsewhere. She discussed her interest in
moving with Petitioner, who opposed her leaving Argentina with
C.F.F.M. The district court found that Respondent had "raised such
an interest" before and that "the parties had various discussions
prior to this time about [Respondent] relocating out of the
country." The parties were unable to come to an agreement, even
after mediation in July 2013.
The next month, Respondent accepted a job offer in Boston
with a September 2013 start date. The parties discussed her
upcoming move shortly after she accepted the job offer. During an
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August 13, 2013 Skype conversation, Respondent urged Petitioner to
pursue work or educational opportunities in Boston. Petitioner
expressed openness to potentially moving to Massachusetts along
with Respondent and C.F.F.M., but the parties reached no agreement
during the conversation.
The two met in person three times in August and September
2013 to discuss potential arrangements if C.F.F.M. were to relocate
to the United States. During the third meeting, Petitioner agreed
to allow C.F.F.M. to move to Massachusetts with Respondent.
Respondent proposed that C.F.F.M. could travel back to Argentina
during U.S. school vacations and agreed to increase Petitioner's
visitation time in anticipation of the move. The same day, the two
relayed these plans to C.F.F.M.
In accordance with their discussions, Respondent left
Argentina to begin her job in mid-September 2013. C.F.F.M.
remained in Argentina in the care of Respondent's mother, and
Petitioner assumed the agreed-upon increased visitation schedule.
The parties corresponded by email after her departure to discuss a
new coparenting agreement and to set an exact date for C.F.F.M.'s
move. Petitioner preferred a January 2014 move so that the child
could complete his school year in Argentina; Respondent wanted him
to move before the December holidays so that he could spend time
with her family before beginning school in Boston. Petitioner
objected to the December departure, reasoning that Respondent's
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family could see C.F.F.M. any time now that the child was moving to
the United States, but confirmed a January 8, 2014 move date.
In their correspondence, Respondent expressed frustration
that even though the two had agreed that C.F.F.M. should move to
the United States and Respondent had relocated to Boston with that
decision in place, Petitioner had yet to draft or sign a new
coparenting agreement. After an acrimonious Skype exchange on
October 23, 2013, Respondent emailed Petitioner and asserted that
she would invoke her forty-five days per year vacation time in
order to allow C.F.F.M. to leave for Boston in early December.
After that email, the parties' communication broke down.
Petitioner initiated multiple court proceedings, including an
emergency petition to obtain temporary custody of C.F.F.M. and
criminal complaints against Respondent and her mother. The
district court found that Petitioner included numerous unfounded
statements about Respondent in these filings, which stated, among
other falsehoods, that she had "abandoned" C.F.F.M. and left for
the United States "without any notice" to Petitioner. Respondent
returned to Argentina in late November and again in late December
to attend court proceedings. At a hearing on Petitioner's criminal
complaints, a criminal court judge reduced Petitioner's visitation
and prohibited him from having overnight visits with C.F.F.M.
Respondent returned to Boston and then came back to
Argentina on February 9, 2014. The family court judge held a
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hearing the next day to address Petitioner's temporary custody
proceeding and Respondent's filing to obtain travel authorization
for C.F.F.M. to visit the U.S. for forty-five days, pursuant to the
parties' 2012 agreement. The judge ordered the parties to confer
and resolve the latter issue; shortly after the hearing, they
informed the judge that they were unable to agree on a resolution.
On February 14, the judge issued a decision denying Respondent's
request for travel authorization, reasoning that the evidence
presented to him indicated "an environment of disagreements and
hostilities between [the parties]" which would make a trip
disfavorable to C.F.F.M.
That same day, Respondent left Argentina with her mother
and C.F.F.M. The district court found that Respondent knew of the
Argentine family court's order denying her travel authorization
before she left Buenos Aires that day. She drove to a border town
near Brazil and Paraguay, and on February 15, made three trips into
Brazil and Paraguay in search of an airport where C.F.F.M. could
travel to the United States without scrutiny of his visa. On
February 16, 2014, Respondent and C.F.F.M. flew out of Paraguay to
the United States. Respondent did not inform Petitioner that she
had left Argentina; he discovered that C.F.F.M. was no longer in
the country when the child did not attend his first week of school
in March. Petitioner found Respondent's work phone number and
repeatedly called her office. She confirmed that C.F.F.M. was in
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Boston under her care. Soon after, Respondent obtained an abuse
prevention order against Petitioner from the Suffolk County Probate
and Family Court.
Petitioner notified the Argentine family court judge that
Respondent had left the country and filed a criminal complaint for
child abduction with the Argentine police. On April 11, Petitioner
filed for Hague Convention remedies with a central authority in
Argentina. On July 15, the Argentine family court judge issued an
opinion finding that Respondent wrongfully removed C.F.F.M. under
the Hague Convention and that C.F.F.M.'s habitual residence at the
time of removal was Argentina.
C.F.F.M. and Respondent have lived in Roslindale,
Massachusetts since February 2014. C.F.F.M. attends a Boston
public school. Respondent presented expert testimony and a report
to the district court from a child psychologist who interviewed
C.F.F.M.; the psychologist wrote in his report that the child
"spoke adamantly and specifically about not wanting to return to
Argentina." The expert opined in his report that removal to
Argentina would "sever[] . . . the bonded relationships" with
Respondent, her fiancé, and her mother and thus "expose him to
psychological harm."
Petitioner filed this action in the district court on
October 6, 2014. The court heard three days of evidence in
December 2014, and issued its order granting the petition and
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ordering the child's return on January 16, 2015. This expedited
appeal followed.
II. Analysis
A. The Hague Convention
The Hague Convention on the Civil Aspects of
International Child Abduction is a multilateral agreement among
approximately ninety countries, including the United States,
intended to combat international child abductions during domestic
disputes. Abbott v. Abbott, 560 U.S. 1, 8 (2010). The Convention
seeks to enforce custody rights and "'secure the prompt return of
children wrongfully removed to or retained in any Contracting
State.'" Chafin v. Chafin, 133 S. Ct. 1017, 1021 (2013) (quoting
Hague Convention, art. 1). The Convention's underlying principle
is that the courts of a child's country of habitual residence
should be the entities to make custody determinations in the
child's best interest. E.g., Lozano v. Montoya Alvarez, 134 S. Ct.
1224, 1228–29 (2014); Mauvais v. Herisse, 772 F.3d 6, 10–11 (1st
Cir. 2014).
A petitioner seeking the return of a child under the
Convention must establish the child's wrongful removal by a
preponderance of the evidence. 22 U.S.C. § 9003(e)(1)(A);
Sánchez-Londoño v. Gonzalez, 752 F.3d 533, 539 (1st Cir. 2014).
The petitioner must show that he or she (1) seeks to return the
child to the child's country of habitual residence, (2) had custody
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rights immediately prior to the child's removal, and (3) was
exercising those rights. Hague Convention, art. 3;
Sánchez-Londoño, 752 F.3d at 539–40. If these three elements are
met, and the petitioner has commenced judicial or administrative
proceedings within one year of the date of wrongful removal, the
Convention commands that the court reviewing the petition "shall
order the return of the child forthwith." Hague Convention, art.
12. The respondent may counter the presumption of return by
establishing the application of one or more of the exceptions or
defenses to return enumerated in Articles 12, 13, and 20 of the
Convention. 22 U.S.C. § 9003(e)(2); Chafin, 133 S. Ct. at 1021.
"Notably, an order of return pursuant to the Hague Convention is
not a final determination of custody rights. It simply ensures
that custodial decisions will be made by the courts of the
children's country of habitual residence." Neergard-Colón v.
Neergard, 752 F.3d 526, 530 (1st Cir. 2014).
On appeal, Respondent disputes that Petitioner
established his custody rights prior to removal or that Argentina
was C.F.F.M.'s country of habitual residence. She argues that even
if Petitioner established a presumption of removal, he consented to
the child's relocation to Massachusetts, satisfying the exception
to return described in Article 13(a) of the Convention.
We review the district court's findings of fact for clear
error, mindful that any "plausible interpretation of the facts
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cannot be rejected just because the record might sustain a
conflicting interpretation." Darin v. Olivero-Huffman, 746 F.3d 1,
8 (1st Cir. 2014). Interpretations of the Convention and the
application of the Convention to the facts are afforded de novo
review. Yaman v. Yaman, 730 F.3d 1, 10 (1st Cir. 2013).
B. Habitual Residence
We begin and end with the question of C.F.F.M.'s habitual
residence at the time of removal. See Redmond v. Redmond, 724 F.3d
729, 742 (7th Cir. 2013) ("[E]very Hague Convention petition turns
on the threshold determination of the child's habitual residence;
all other Hague determinations flow from that decision."); Tsai-Yi
Yang v. Fu-Chiang Tsui, 499 F.3d 259, 271 (3d Cir. 2007) (same).
Removal under the Hague Convention is only appropriate if
the child is being retained in a country other than his or her
place of habitual residence. Sánchez-Londoño, 752 F.3d at 540.
The Convention itself does not define "habitual residence," leaving
the interpretation of the term to the judicial and administrative
bodies of signatory nations. See Nicolson v. Pappalardo, 605 F.3d
100, 103–04 (1st Cir. 2010); Redmond, 724 F.3d at 742–43; Mozes v.
Mozes, 239 F.3d 1067, 1071–72 (9th Cir. 2001). In determining a
child's habitual residence, this circuit looks first to the shared
intent or settled purpose of the persons entitled to determine the
child's permanent home; as a secondary factor, we may consider the
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child's acclimatization to his or her current place of residence.2
Sánchez-Londoño, 752 F.3d at 540, 542. Typically, evidence of
acclimatization alone cannot establish a child's habitual residence
in the face of shared parental intent to the contrary.
Neergard-Colón, 752 F.3d at 532.
The question of habitual residence is a highly fact-
specific inquiry that turns on the particular circumstances of each
unique case. In discerning the parties' intentions, this court
will look "specifically to the last moment of the parents' shared
intent." Mauvais, 772 F.3d at 12. Where a child has moved with a
parent from one country to another, the record must evidence the
parties' latest settled intention for the child to abandon a former
place of habitual residence and acquire a new one. Darin, 746 F.3d
at 11. In other words, the court "'must determine from all
available evidence whether the parent petitioning for return of a
child has already agreed to the child's taking up habitual
residence where it is.'" Id. (citing Mozes, 239 F.3d at 1076).
The district court's ultimate determination of habitual residence
is a mixed question of law and fact reviewed de novo, with
2
This circuit's framework accords with the approach of the
majority of our sister circuits, though other circuits differ in
the weight given to the parents' intent versus the child's
perspective on his or her settled place of residence. See
generally Redmond v. Redmond, 724 F.3d 729, 744–46 (7th Cir.
2013) (citing and describing cases).
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subsidiary findings of the parties' intent reviewed for clear
error. Neergard-Colón, 752 F.3d at 530.
As the district court found in its opinion, during a
meeting at a Buenos Aires restaurant in early September 2013,
Petitioner agreed to let C.F.F.M. move to Boston after the close of
the child's school year in Argentina. The same day, the parties
together told their son that he would move to Massachusetts with
Respondent. Nevertheless, the district court found that Petitioner
and Respondent "came close to forming . . . a shared intent, [but]
did not actually do so."
This finding constitutes clear error. The record is
replete with Petitioner's own statements acknowledging and planning
for the child's upcoming move, particularly during September and
October of 2013, after Respondent moved to Boston and before the
parties' relations broke down and Petitioner initiated civil and
criminal proceedings against Respondent and her mother. For
example, on September 30, 2013, in response to Respondent's request
for C.F.F.M. to fly to the United States that December, Petitioner
wrote in an email, "I would prefer if you can wait until he moves
to you by the end of the year. . . . I really do not see the point
of him going there when it would be just two or three weeks before
he moves there." On October 10, Petitioner suggested that
Respondent meet him and C.F.F.M. in Miami in January 2014 and then
take the child back to Boston, since Petitioner and his family had
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planned to be in Florida for a family trip that month. After
Respondent suggested that Petitioner and C.F.F.M. meet her in New
York to celebrate the New Year, Petitioner said he would check with
his family but stated, "For now, what is sure is January the 8th."
Even during a tense Skype exchange on October 23, 2013, Petitioner
expressed his understanding that C.F.F.M. would permanently move to
the United States at the turn of the new year. Respondent renewed
her request for C.F.F.M. to move before January 8, 2014, alluding
to her family's holiday celebration in New York; Petitioner
responded that "[C.F.F.M.] will be in the us [sic] in january
[sic]" and that Respondent's family "will have plenty of time [to
spend with the child] know [sic] that [C.F.F.M.] is going to be in
the us [sic] living there." After this Skype exchange, Respondent
emailed Petitioner and stated that she would invoke her forty-five
day travel authorization in order to take C.F.F.M. with her to
Boston on December 4, 2014, triggering the breakdown in the
parties' communications.
Even though Petitioner changed his mind and decided that
he did not want C.F.F.M. to move to Boston, the record establishes
that the last shared intent of the parties was for their son to
relocate permanently with his mother soon after C.F.F.M. finished
the Argentine school year in December 2013. The "unilateral wishes
of one parent are not sufficient" to overcome the last settled
purpose of the parents. Sánchez-Londoño, 752 F.3d at 540 (internal
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quotation marks omitted). Indeed, in Re Bates, a United Kingdom
decision considered a leading case on habitual residence, the
parents' intention for the child to live in New York for a set
period of time governed even where the parents made the decision
while touring the Pacific Northwest, and had borrowed a New York
apartment for later that spring only on a temporary basis. Re
Bates, No. CA 122/89, High Court of Justice, Family Div. Ct. Royal
Courts of Justice, United Kingdom (1989), available at 1989 WL
1683783. The mother brought the child from the West Coast to New
York while the father, an Englishman, continued on to Asia. A few
days later, the father telephoned his daughter's nanny and told her
to take the child to London, where the father owned a house. The
mother filed a petition under the Hague Convention in the British
courts immediately after she discovered that the child and nanny
were gone. The British court found the child habitually resident
in New York, reasoning that the "arrangements that had been agreed,
however acrimoniously" by the parties "amounted to a purpose with
a sufficient degree of continuity to enable it properly to be
described as settled," though at the time the parents made the
decision the child had only briefly visited New York before. Here,
the district court erroneously reasoned that Petitioner never
signed a written agreement memorializing the parties' new parenting
plan, and refused to issue a travel authorization permitting
C.F.F.M. to leave Argentina. But the parties did not make their
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joint decision for C.F.F.M. to move to the United States contingent
on signing an official instrument; like in Re Bates, the parties
verbally agreed to the plan. While in some circumstances, written
evidence of a parties' agreement may inform a court's decision-
making, we reject the idea that such formal documentation is
required to establish the settled intention of the parties.
Additionally, the district court misapplied the governing
law of this circuit when it held that a change in habitual
residence "requires an actual 'change in geography,'" citing a case
from the Ninth Circuit. See Mozes, 239 F.3d at 1078 ("While the
decision to alter a child's habitual residence depends on the
settled intention of the parents, they cannot accomplish this
transformation by wishful thinking alone. First, it requires an
actual 'change in geography.'") (quoting Friedrich v. Friedrich,
983 F.2d 1396, 1402 (6th Cir. 1993)). This circuit has never added
such a requirement in the context of the habitual residence test.
To the contrary, we have explicitly described a change in the
child's geography as but one "consideration[] for the court" and
"one factor in our [habitual residence] analysis," not as a full-
fledged prerequisite. Darin, 746 F.3d at 12–13; see also Mauvais,
772 F.3d at 14 ("'[F]actors evidencing a child's acclimatization to
a given place -- like a change in geography combined with the
passage of an appreciable period of time -- may influence our
habitual residence analysis.'") (emphasis added) (quoting
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Sánchez-Londoño, 752 F.3d at 542). To be sure, there may be
situations in which an actual change in the child's geography
factors heavily in the habitual residence analysis. Lest there be
confusion, a child's presence in a new country of habitual
residence is not required to effectuate his parents' settled
intention to abandon his old place of residence and acquire a new
one. A contrary requirement would incentivize a feuding parent to
move his or her child immediately upon the formation of an
agreement even if, as here, it would be better for the child to
finish out a school year or wait until the parent has settled the
family's living situation before the child joins her.
Finding clear error in the district court's factual
findings concerning the parties' intent, and errors of law in the
district court's application of the Convention to the facts of this
case, we hold that the United States was the child's habitual
residence at the time of removal based on his parents' mutual and
settled agreement to move him there.3 No actual change in the
3
We do not discuss the question of C.F.F.M's acclimatization
to the United States, as neither the district court nor the parties
addressed the issue. In any event, acclimatization is "rarely, if
ever, a significant factor when children are very young,"
Neergard-Colón v. Neergard, 752 F.3d 526, 533 (1st Cir. 2014), and
courts typically inquire into evidence of acclimatization when the
party opposing return avers that the child's life is so firmly
embedded in his or her new country that acclimatization should
overcome the parties' past shared intent for the child to live
elsewhere, Mauvais v. Herisse, 772 F.3d 6, 14 (1st Cir. 2014). We
do note, however, that Respondent submitted a report, dated
December 5, 2014, from a child psychologist who had met with and
observed C.F.F.M. and had spoken with his caretakers and teacher.
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child's geography is required to effectuate that last shared
intent, nor must the parties' intent be memorialized in a written
document. Mindful that the question of parents' shared intent "is
not a uniformly applicable 'test' for determining habitual
residence," we caution that our holding rests of the particular
facts of this case. Cf. Redmond, 724 F.3d at 732, 744, 747
(holding that despite parents' initial agreement to raise their
baby in Ireland, the U.S.-born child's habitual residence was
Illinois given that respondent had sole custody under Irish law at
the time she brought him back to the United States and child's life
was "firmly rooted" in Illinois at time of petition; "shared intent
has less salience when only one parent has the legal right [to fix
the child's place of residence]").
After review of the record, we conclude that Petitioner
did not prove that he seeks to return C.F.F.M. to the child's
country of habitual residence, one of the three elements of a prima
facie case of wrongful removal. Because Petitioner did not meet
his burden to establish a presumption of wrongful removal, we will
not reach other arguments raised by the parties, including the
The psychologist opined in his report that C.F.F.M. is
"reciprocally bonded" to Respondent, her fiancé, and her mother;
that the child's "anxiety and fearfulness in the school setting
have largely abated" since his arrival in Boston; and that "there
is a grave risk that [the child's] return to Argentina would expose
him to psychological harm."
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affirmative defense of consent. Cf. Sánchez-Londoño, 752 F.3d at
543 n.4 (citing Redmond, 724 F.3d at 742).
III. Conclusion
In reviewing Hague Convention petitions, courts must
grapple with difficult factual circumstances in which no outcome
may appear ideal. We emphasize that our decision today is not the
final word on the parties' ongoing custody dispute; rather, it puts
the onus on the requisite Massachusetts court to resolve future
questions of custody and access rights. Nor should this opinion be
taken as an endorsement of Respondent's actions in February 2014.
Because the district court erred in its habitual residence
analysis, we reverse both the grant of the father's petition and
the order of return to Argentina.
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