Jose Candido Diaz Palencia v. Marilis Yaneth Velasquez Perez , 921 F.3d 1333 ( 2019 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-14122
________________________
D.C. Docket No. 9:18-cv-80236-RLR
JOSE CANDIDO DIAZ PALENCIA,
Petitioner - Appellee,
versus
MARILIS YANETH VELASQUEZ PEREZ,
Respondent - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 30, 2019)
Before JORDAN, NEWSOM, and BRANCH, Circuit Judges.
JORDAN, Circuit Judge:
In this case—filed pursuant to the Hague Convention on the Civil Aspects of
International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S.
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89, implemented by the International Child Abduction Remedies Act, 22 U.S.C. §§
9001 et seq.—the district court concluded that Marilys Velasquez Perez had
wrongfully retained her son, H.J.D.V., in the United States and away from
Guatemala, his place of habitual residence. It therefore granted the petition filed by
H.J.D.V.’s father, Jose Diaz Palencia, and ordered that the child be returned to
Guatemala.
Ms. Perez appeals, challenging a number of the district court’s rulings.
Following review of the record, and with the benefit of oral argument, we affirm. 1
I
We present the relevant facts as found by the district court following two
evidentiary hearings. To the extent other facts are necessary, we set them out where
pertinent to our discussion.
A
Ms. Perez and Mr. Palencia began dating about 10 years ago. In August of
2012, they participated in a commitment ceremony in Guatemala before their
community, families, and friends, and publicly declared their love for each other.
1
All of the translations from Spanish to English in this opinion have been provided by Joshua
Elliott, a federally-certified court interpreter and the supervisor of the Interpreters Section of the
United States District Court for the Southern District of Florida. We are extremely grateful to Mr.
Elliott for his assistance.
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Following the ceremony, they lived together in Ms. Perez’s familial home in
Guatemala.
The commitment ceremony did not take place before a mayor, notary, or
court. As a result, it is not recognized under Guatemalan law as a formal, non-
marital union or union-in-fact (i.e., a recognized common-law marriage).
Ms. Perez and Mr. Palencia have never been married, but they had a child,
H.J.D.V., who was born in Guatemala in 2013. The three of them lived as a family
in the home of Ms. Perez’s parents for two years, until they moved into a separate
home on the same property. They lived there together until Ms. Perez left with
H.J.D.V. in October of 2016.
Mr. Palencia is an agricultural worker, and he paid for H.J.D.V.’s clothing,
food, and medical care in Guatemala. He also provided day-to-day care for H.J.D.V.
when he was not working. Ms. Perez did not work outside the home while the family
resided in Guatemala.
In October of 2016, Ms. Perez told Mr. Palencia that she wanted to take
H.J.D.V. to Chiapas, Mexico, to visit relatives for a week. Mr. Palencia did not
object, as Ms. Perez had twice visited Chiapas with H.J.D.V. and returned to
Guatemala. Ms. Perez never indicated that she intended to take H.J.D.V. to the
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United States, and Mr. Palencia never agreed to her doing so. Nor did he agree to
Ms. Perez taking H.J.D.V. away for longer than a week. 2
Rather than visiting Mexico, Ms. Perez took H.J.D.V. to the United States,
where they were detained at the border. Mr. Palencia only learned of their
whereabouts 12 days later, when Ms. Perez called him from a detention facility in
the United States. She told Mr. Palencia that she had made a mistake, asked for
forgiveness, and said that she would return to Guatemala with H.J.D.V. She
explained that, to be able to return, she needed Mr. Palencia’s assistance in obtaining
passports for herself and H.J.D.V. Mr. Palencia cooperated. It took months for the
passports to be issued, during which time Ms. Perez repeatedly told Mr. Palencia she
would return as soon as she had them. In July of 2017, after she had received the
passports, Ms. Perez told Mr. Palencia she would not be returning to Guatemala with
H.J.D.V.
Unbeknownst to Mr. Palencia, Ms. Perez had filed an asylum application for
herself and H.J.D.V. upon arriving in the United States. Mr. Palencia did not learn
of the application until after he filed his Hague Convention petition in the district
court. Ms. Perez did not tell Mr. Palencia that she had sought asylum for H.J.D.V.,
and he never agreed to her doing so. In connection with her asylum application, Ms.
2
H.J.D.V. did not have a passport at the time of the trip. Mr. Palencia did not believe he required
a passport, as he and Ms. Perez had previously traveled with H.J.D.V. to Chiapas without one.
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Perez completed a credible fear interview, in which she stated that she had never
suffered violence at a romantic partner’s hands.
B
On February 25, 2018, Mr. Palencia filed a verified Hague Convention
petition seeking H.J.D.V.’s return. On April 30, 2018, the district court held an
evidentiary hearing and heard testimony from a number of witnesses, including Ms.
Perez and some of her family members, Mr. Palencia and his family members, and
certain mental health professionals and advocates. The parties agreed to continue
the hearing to give them a chance to submit additional evidence, and on August 27,
2018, the district court held a second evidentiary hearing. At that second hearing it
heard from, among others, two Guatemalan attorneys—one proffered by each party.
On September 20, 2018, the district court granted Mr. Palencia’s petition and
ordered that H.J.D.V. be returned to Guatemala.
Ms. Perez asserts that the district court committed several errors. We address
two of her arguments. The first is that the district court erred in its determination of
Guatemalan law with respect to Mr. Palencia’s rights. The second is that the district
court wrongfully concluded that July of 2017—when Ms. Perez informed Mr.
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Palencia that she would not return to Guatemala—constituted the date of H.J.D.V.’s
wrongful retention.3
II
The Hague Convention “was adopted in 1980 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.” Hanley v. Roy, 485
F.3d 641, 644 (11th Cir. 2007) (internal quotation marks omitted) (quoting
Convention, pmbl.). The United States has implemented the Convention through
the ICARA, 22 U.S.C. § 9001 et seq.
The Convention and, by extension, the ICARA, “empower courts in the
United States to determine only rights under the Convention and not the merits of
any underlying child custody claims.” 22 U.S.C. § 9001(b)(4). “The Convention
generally intends to restore the pre-abduction status quo[.]” Hanley, 485 F.3d at 644.
Our inquiry is therefore “limited to the merits of the abduction claim[.]” Ruiz v.
Tenorio, 392 F.3d 1247, 1250 (11th Cir. 2004) (citation omitted).
3
As to Ms. Perez’s two other arguments, we affirm without extended discussion. The district court
did not abuse its discretion in admitting certain testimony and evidentiary materials. And, given
its credibility findings, the district court did not err in concluding that Ms. Perez had not proven
that returning H.J.D.V. to Guatemala would pose a grave risk of harm.
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A
Children who are wrongfully removed or retained “are to be promptly
returned unless one of the narrow exceptions set forth in the Convention applies.”
22 U.S.C. § 9001(a)(4). The removal or retention of a child from a signatory state is
wrongful where
a) it is in breach of rights of custody attributed to a person
. . . 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 . . . or would have been so exercised but
for the removal or retention.
Convention, Art. 3. See also Ruiz, 392 F.3d at 1251. The petitioner in a Hague
Convention case bears the burden of proving by a preponderance of the evidence
that the child was wrongfully removed or retained. See 22 U.S.C. § 9003(e)(1)(A);
Chafin v. Chafin, 742 F.3d 934, 938 (11th Cir. 2013).
To prove wrongful retention, the petitioner must show that (1) the child was
a habitual resident of another signatory country at the time of the retention; (2) the
retention was in breach of his or her rights of custody under the law of that country;
and (3) he or she was exercising those rights at the time of the retention, or would
have been but for the wrongful retention. See Chafin, 742 F.3d at 938; Furnes v.
Reeves, 362 F.3d 702, 712 (11th Cir. 2004) (citing Convention, Arts. 3 & 5, as well
as 22 U.S.C. § 9003(e)(1)(A)), abrogated on other grounds by Lozano v. Montoya
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Alvarez, 572 U.S. 1 (2014)). The parties here disagree about the second element of
a wrongful retention claim—whether Mr. Palencia had any rights of custody under
Guatemalan law at the time of H.J.D.V.’s retention.
The term “rights of custody” does not have a fixed definition, but it is not
limited to physical custody. The Hague Convention takes an expansive view of the
concept, explaining that “‘rights of custody’ shall include rights relating to the care
of the person of the child and, in particular, the right to determine the child’s place
of residence[.]” Convention, Art. 5(a).
The Convention’s intent is for courts to “invoke[ ] in the widest possible
sense” the law of the child’s habitual residence. Elisa Pérez-Vera, Explanatory
Report on the 1980 Hague Convention on the Civil Aspects of International Child
Abduction ¶ 67 (1982). We confirmed this understanding in Hanley, where we said
that “[t]he intention of the Convention is to protect all the ways in which custody of
children can be exercised, and the Convention favors a flexible interpretation of the
terms used, which allows the greatest possible number of cases to be brought into
consideration.” 485 F.3d at 645 (emphasis in original and internal quotation marks
and citations omitted). “[T]he violation of a single custody right suffices to make
removal . . . wrongful. . . . [A] parent need not have ‘custody’ to be entitled to return
[of the child]; rather, he need only have one right of custody.” Id. at 647 (emphasis
in original and citation omitted).
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B
We look to the law of Guatemala, the country of H.J.D.V.’s habitual
residence, to “determine the content of [Mr. Palencia’s] right[s], while following the
Convention’s text and structure to decide whether the right at issue is a ‘right of
custody.’” Abbott v. Abbott, 560 U.S. 1, 10 (2010). See also Hanley, 485 F.3d at
645 (“‘[R]ights of custody’ are determined by the law of the country in which the
child habitually resides at the time of removal[.]”) (footnote omitted). The district
court’s determination of Guatemalan law is subject to plenary review, and in
performing that review we can conduct our own research of relevant sources. See
Fed. R. Civ. P. 44.1; Animal Science Prods., Inc. v. Hebei Welcome Pharm. Co. Ltd.,
138 S. Ct. 1865, 1869–70 (2018).
Guatemala is a civil law jurisdiction. The generally recognized sources of law
in such a jurisdiction are constitutional provisions, statutes, administrative
regulations, and customs. See generally John Henry Merryman & Rogelio Perez-
Perdomo, The Civil Law Tradition: An Introduction to the Legal Systems of Europe
and Latin America (4th ed. 2019). According to the expert testimony presented in
the district court, Guatemala’s judicial system of cassation requires five serial,
uniform decisions by Guatemalan Supreme Court before jurisprudence will be
considered alongside these sources in deciding a matter. See D.E. 142 at 86–87.
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Because there are not five such decisions on the issue we confront, Guatemalan
caselaw (to the extent it exists) does not provide us with any authoritative guidance.
Ms. Perez argues that Mr. Palencia, whom she never married, lacks “rights of
custody” under Article 261 of the Guatemalan Civil Code. Article 261 provides in
relevant part as follows: “Single or separated mother. When the father and the
mother are neither married nor in a common-law marriage, the children shall be in
the mother’s custody unless she agrees to transfer them to the father’s custody, or
unless they are enrolled in a boarding school.” Guatemalan Civil Code, Chapter VII,
Art. 261 (“Madre soltera o separada. Cuando el padre y la madre no sean casados
ni estén unidos de hecho, los hijos estarán en poder de la madre, salvo que ésta
convenga en que pasen a poder del padre, o que sean internados en un
establecimiento de educación. . . .”).
According to Ms. Perez, Article 261 grants her exclusive patria potestad
powers and, therefore, complete custodial authority as to H.J.D.V. Patria potestad
is a Roman legal concept which, in its original form, gave a family patriarch absolute
power over his child, but is now generally understood to be the rights any biological
parent may exercise over a child. See Luis Ischiu v. Gomez Garcia, 274 F. Supp. 3d
339, 346 (D. Md. 2017) (discussing patria potestad in the context of Guatemalan
law).
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Articles 252 and 254 of the Code discuss the concept of patria potestad.
Under Article 252, “within a marriage or common-law marriage” patria potestad
“is exercised jointly by the father and the mother over minor children,” and “in any
other case, it is exercised by the father or the mother, depending on who has custody
of the child.” Guatemalan Civil Code, Chapter VII, Art. 252 (emphasis added) (“En
el matrimonio y fuera de él. La patria potestad se ejerce sobre los hijos menores,
conjuntamente por el padre y la madre en el matrimonio y en la unión de hecho; y
por el padre o la madre, en cuyo poder esté el hijo, en cualquier otro caso.”). And
under Article 254, patria potestad encompasses “the right to legally represent a
minor or disabled person in any civil procedure; to manage his or her assets; and to
make good use of his or her services according to his or her age and condition.”
Guatemalan Civil Code, Chapter VII, Art. 254 (“Representación del menor o
incapacitado. La patria potestad comprende el derecho de representar legalmente
al menor o incapacitado en todos los actos de la vida; administrar sus bienes y
aprovechar sus servicios atendiendo a su edad y condición.”). As summarized by
one district court, although the concept of patria potestad is not explicitly defined in
the Code, it “covers [among other things] ‘the right to legally represent a minor . . .
in all civil acts . . . to administer his or her assets and to take advantage of available
services in view of his or her age and condition.’” Luis Ischiu, 274 F. Supp. 3d at
346 (quoting translation of Article 254).
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Even assuming that Articles 261 and 254 grant Ms. Perez comprehensive
patria potestad powers and primary custody over H.J.D.V., we conclude that a father
in Mr. Palencia’s situation nevertheless retains certain rights and responsibilities
under Guatemalan law. In our view, Article 253 establishes certain inalienable
responsibilities for both parents of a child, even when the two are neither married
nor in a formal union-in-fact. It provides as follows: “Duties of both parents. The
father and the mother have a duty to care and provide for their children, whether
born in or out of wedlock, and to raise and correct them using measured discipline.
In accordance with criminal law, both shall be responsible should they leave them
in a state of moral and/or material abandonment and fail to fulfill the duties inherent
to parental authority.” Guatemalan Civil Code, Chapter VII, Art. 253
(“Obligaciones de ambos padres. El padre y la madre están obligados a cuidar y
sustentar a sus hijos, sean o no de matrimonio, educarlos y corregirlos, empleando
los medios prudentes de disciplina, y serán responsables conforme a las leyes
penales si los abandonan moral o materialmente y dejan de cumplir los deberes
inherentes a la patria potestad.”).
In civil law jurisdictions like Guatemala, the interpretations of legal scholars
are given significant weight in determining the meaning of statutory provisions. See
Merryman & Perez-Perdomo, The Civil Law Tradition at 61–62. See also V. Suarez
& Co., Inc. v. Dow Brands, Inc., 337 F.3d 1, 8 (1st Cir. 2003). According to one
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Guatemalan legal scholar, “the task of the non-custodial parent does not consist of
mere supervision . . . but rather he or she maintains his or her parental role and has
a right to take on an active position that involves collaborating with the custodial
parent in terms of raising, protecting, and assisting the minor.” Mayra Aurelia Flores
Morales, La Inadecuada Enunciación de Patria Potestad y la Necesidad de Incorporar
a la Legislación Guatemalteca la Expresión Relaciones Paterno Filiales, Por Su Más
Amplio Contenido 33 (2010) (“La labor de quien no tiene la tenencia de los hijos no
es de mera supervisión, . . . sino que conserva su rol parental y tiene derecho a tomar
una posición activa que implica colaborar con el titular de la guarda en la función de
educación, amparo y asistencia del menor.”). See also Alfonso Brañas, Manual de
Derecho Civil 232–33 (1998) (explaining that, with respect to the exercise of patria
potestad, the Guatemalan Civil Code speaks of both rights and obligations, and it is
difficult to distinguish clearly between rights and obligations given the ambit of
human behavior: “En realidad, y en vista de la peculiar naturaleza de la institución,
resulta difícil deslindar claramente, en este ámbito de la conducta humana, íntimo
de por sí, lo que es simple deber de lo que es obligación propiamente dicha, y aún lo
que es un derecho en el estricto sentido de la palabra.”). 4
4
We have not located any Guatemalan authorities to the contrary, and Ms. Perez has not pointed
us to any.
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Our task is to decide this case “in accordance with the Convention.” 22 U.S.C.
§ 9003(d). Article 5(a) of the Convention expressly includes “rights relating to the
care of the person of the child” as “rights of custody,” and both parties’ experts
agreed that Article 253 confers obligations on both parents. See D.E. 144 at 27–28.
The interpretation of Ms. Flores Morales, which speaks of the “right” of a non-
custodial parent with respect to raising, protecting, and assisting the child, indicates
(or at least strongly suggests) that Mr. Palencia has “rights of custody” under the
Hague Convention with respect to H.J.D.V. pursuant to Article 253. By virtue of
his obligation to care for, support, educate, and discipline his son—an obligation
whose breach is punishable by criminal sanctions—Mr. Palencia was “endowed with
joint decision-making authority” over important aspects of H.J.D.V.’s life, and he
was “indisputably exercis[ing] [his] rights to care and to provide” for his son prior
to the wrongful retention. See Hanley, 485 F.3d at 646–48 (holding that, under Irish
law, a guardian has rights of custody within the meaning of the Hague Convention,
even though some decisions are entirely outside the guardian’s power, because a
guardianship “encompasses the duty to maintain and properly care for a child and
the right to make decisions about a child’s religion and secular education, health
requirements and general welfare”) (internal quotation marks and citation omitted).
Ms. Perez contends that any reading of Article 253 which recognizes rights of
custody under the Hague Convention for unwed fathers “renders Article 261
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completely meaningless and unnecessary.” Appellant’s Br. at 14. Not so. As we
read and understand the two provisions, Article 253 provides an unmarried father
with certain obligations (and therefore certain rights) with respect to his child, with
the caveat that Article 261 gives the mother the final say when the parents disagree
on a given issue.
Ms. Perez also relies on our unpublished decision in Ovalle v. Perez, 681 F.
App’x 777, 784–86 (11th Cir. 2017), which held that an unmarried mother had rights
of custody within the meaning of the Hague Convention under Guatemalan law. But
our decision today does not conflict with Ovalle. The panel in Ovalle addressed the
rights of custody of an unmarried mother—not those of an unmarried father like Mr.
Palencia—under Guatemalan law, and it naturally turned to Article 261 to answer
that particular question. Because the panel in Ovalle addressed only whether the
unmarried mother had rights of custody, it had no need to consider Article 253. Our
inquiry concerns the rights of the unmarried father, so Article 253 becomes relevant.
It may well be that a Guatemalan court will ultimately grant full custody of
H.J.D.V. to Ms. Perez. But a custody determination is outside our purview. We
hold only that the district court correctly ruled that Mr. Palencia is endowed with
rights of custody under Article 5 of the Hague Convention pursuant to Article 253
of the Guatemalan Civil Code.
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III
We turn next to Ms. Perez’s argument concerning the date of the wrongful
retention. That date matters because, if a petition for return is filed more than one
year after the wrongful retention (or, indeed, removal), the Convention permits the
parent who took the child to argue that return should not be ordered because the child
is “now settled” in his or her new environment. See Convention, Art. 12; Lozano,
572 U.S. at 4–5.
Mr. Palencia filed his petition in February of 2018. The district court ruled
that the wrongful retention took place in July of 2017 (when Ms. Perez told Mr.
Palencia that she would not be returning to Guatemala with H.J.D.V.) and not in
October of 2016 (when Ms. Perez left Guatemala with the child and told Mr.
Palencia that she was going to Mexico for a week to visit family members). See
D.E. 144 at 23. The district court reasoned that the wrongful retention could not
have occurred in October of 2016 because at that time Mr. Palencia had consented
to Ms. Perez and H.J.D.V. traveling to Mexico for a week, and he had no reason to
demand the child’s return. The district court, we conclude, got it right.
We have not previously addressed whether, for the purpose of determining the
date of wrongful retention, a court should look to the date the abducting parent
formed the intent to wrongfully retain the child or to the date the petitioning parent
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learned the true nature of the situation. We hold today that, in a case like this one,
the latter is the appropriate date.
In Marks on behalf of SM v. Hochhauser, 876 F.3d 416, 417, 420–23 (2d Cir.
2017), the Second Circuit held that the wrongful retention occurred when the
custodial parent told the non-custodial parent that she would be staying in the United
States with their children and would not be returning to the country of the child’s
habitual residence. The First Circuit reached the same conclusion in Darin v.
Olivero-Hoffman, 746 F.3d 1, 10–11 (1st Cir. 2014). And in Blackledge v.
Blackledge, 866 F.3d 169 (3d Cir. 2017), the Third Circuit similarly looked to the
date the non-custodial parent’s consent expired. It explained that “the retention date
is the date beyond which the noncustodial parent no longer consents to the child’s
continued habitation with the custodial parent and instead seeks to reassert custody
rights, as clearly and unequivocally communicated through words, actions, or some
combination thereof.” Id. at 179. In each of these cases, although the petitioning
and non-custodial parent initially assented to the child’s removal from the country
of habitual residence, the date consent was revoked constituted the date of wrongful
retention.
We agree with our sister circuits and note that the case for such a rule is even
stronger where—as here—the custodial parent makes affirmative representations
regarding the date of the child’s return and then fails to act in accordance with them.
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“Wrongful retentions typically occur when a parent takes a child abroad promising
to return with the child and then reneges on that promise[.]” Redmond v. Redmond,
724 F.3d 729, 738 n.5 (7th Cir. 2013).
When Ms. Perez and H.J.D.V. traveled to the United States and were detained
at the border, Ms. Perez told Mr. Palencia that she had made a mistake and would
return to Guatemala when she obtained passports for herself and the child. Mr.
Palencia cooperated with the effort to secure the passports, and for months
afterwards Ms. Perez told him that she was merely waiting for the passports to be
issued to return to Guatemala. It was not until July of 2017 that Ms. Perez advised
Mr. Palencia that she would not be returning H.J.D.V. to Guatemala. See D.E. 144
at 12.
Before July of 2017, then, Mr. Palencia did not assert his rights of custody or
revoke his consent to H.J.D.V. staying in the United States because he understood
that Ms. Perez and H.J.D.V. would be returning to Guatemala as soon as they
received their passports. The district court correctly ruled that the wrongful retention
took place in July of 2017, when Mr. Palencia’s consent for H.J.D.V. to remain in
the United States expired. See Hochhauser, 876 F.3d at 420–23; Blackledge, 866
F.3d at 179; Darin, 746 F.3d at 10–11.5
5
Because we would affirm the district court’s ruling under any standard of review, we need not
decide whether a determination about the date of wrongful retention constitutes a finding of fact
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IV
The district court’s order granting Mr. Palencia’s Hague Convention petition
is affirmed.
AFFIRMED.
subject to clear error review. See, e.g., Walker v. Walker, 701 F.3d 1110, 1118 (7th Cir. 2012);
Karkkainen v. Kovalchuck, 445 F.3d 280, 290 (3d Cir. 2006).
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