Liz Lopez Moreno v. Jason Zank , 895 F.3d 917 ( 2018 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 18a0147p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
LIZ LORENA LOPEZ MORENO, ┐
Petitioner-Appellant, │
│
> No. 17-2397
v. │
│
│
JASON MICHAEL ZANK, │
Respondent-Appellee. │
┘
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:17-cv-00732—Paul Lewis Maloney, District Judge.
Argued: June 14, 2018
Decided and Filed: July 19, 2018
Before: KEITH, ROGERS, and BUSH, Circuit Judges
_________________
COUNSEL
ARGUED: Amy Grauman, AVANTI LAW GROUP, PLLC, Wyoming, Michigan, for
Appellant. Matthew T. Nelson, WARNER NORCROSS & JUDD LLP, Grand Rapids,
Michigan, for Appellee. ON BRIEF: Amy Grauman, Robert Anthony Alvarez, AVANTI LAW
GROUP, PLLC, Wyoming, Michigan, for Appellant. Matthew T. Nelson, Peter M. Kulas-
Dominguez, Paul H. Beach, WARNER NORCROSS & JUDD LLP, Grand Rapids, Michigan,
for Appellee.
_________________
OPINION
_________________
ROGERS, Circuit Judge. In this case under the Hague Convention on the Civil Aspects
of International Child Abduction, a mother seeks the return of a child to Ecuador, the place
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where the child had become accustomed to living, from a stay with the father in the United States
that the mother, at least, intended to be temporary. Relief is available under the Convention only
if Ecuador is the habitual residence of the child. The district court held that the mother’s original
abduction of the child to Ecuador years earlier meant that Ecuador could not be the child’s
habitual residence. However, the father had not followed through with Hague Convention
procedures in Ecuador following the original abduction. Reversal is required because the proper
remedy for the initial kidnapping to Ecuador was a Hague Convention petition filed in Ecuador,
subject to applicable limitations and defenses, rather than the self-help remedy of (in effect) later
re-kidnapping back to the United States. A remand is also necessary, on which various treaty-
based defenses may be raised.
The child at issue here, BLZ, was born in 2006 in Michigan to the then-married couple of
Jason Zank, a citizen of the United States, and Liz Lopez Moreno, a citizen of Ecuador. Zank
and Lopez Moreno divorced in July 2009. Their divorce decree granted Zank and Lopez Moreno
joint legal and physical custody of BLZ, with alternate weekly custody and twice-weekly
visitation by each parent. It also prohibited Lopez Moreno from taking BLZ to Ecuador without
prior notice to Zank.
The concerns implicit in the divorce decree turned out to have been well-founded. In
December 2009, Lopez Moreno took BLZ to Ecuador with her, in violation of the divorce
decree. Zank sought and received a court order from a Michigan state court, the Montcalm
County Circuit Court, temporarily granting him sole legal and physical custody of BLZ.
Because this proceeding was ex parte, Lopez Moreno was not present during that action.
Once Zank discovered that BLZ had been taken to Ecuador, he contacted the U.S.
Department of State and filled out a Hague Convention petition with the United States Embassy
in Ecuador. Zank did not complete the Hague Convention process, however, in that he did not
file the petition with the Ecuadorian courts, or otherwise attempt to secure the return of BLZ
through procedures in Ecuador. Zank testified that he had not filed the petition or pursued any
other remedy in Ecuador because he had suffered what he called “the runaround” from U.S.
Embassy officials. The district court determined that Zank’s testimony was credible, based in
part on the fact that the U.S. State Department has in the meantime labeled Ecuador as not being
No. 17-2397 Lopez Moreno v. Zank Page 3
in compliance with its Hague Convention obligations. The district court, however, did not make
any finding that Zank had actually been obstructed by any Ecuadorian officials in his failure to
file a Hague petition or that any petition filed by Zank with an Ecuadorian court would
ultimately have been futile.
In Ecuador, Lopez Moreno enrolled BLZ in a private school and arranged for her to have
language tutoring. BLZ flourished in this environment, participating in a number of
extracurricular activities and making many Ecuadorian friends. The district court accordingly
determined that, because BLZ had lived so fully in Ecuador from the ages of 3 to 10, she “had
been acclimatized to Ecuador and was settled there,” such that she would have met the standards
for establishing habitual residency in Ecuador.
As Lopez Moreno and BLZ settled into their new Ecuadorian home, tensions between
Lopez Moreno and Zank also began to subside. Beginning in 2010, Lopez Moreno first
permitted Zank’s parents, and then Zank himself, to visit BLZ in Ecuador. Although able to visit
BLZ, Zank did not attempt to take BLZ to the United States Embassy, or to pursue a Hague
Convention petition in Ecuador during these visits. Zank testified that this apparent lack of effort
was because Lopez Moreno required him and his parents to surrender their passports before
visiting BLZ.
In 2014, following several of these visits, Lopez Moreno proposed to Zank that they
formalize the status of BLZ in Ecuador. In 2010, Lopez Moreno had obtained an ex parte order
from an Ecuadorian court prohibiting BLZ from leaving the country, but Zank had not
participated in or been a party to that order. Lopez Moreno and Zank therefore began to
negotiate, and they ultimately reached an accord between themselves. Under their agreement,
Lopez Moreno received full legal custody of BLZ and an increase in Zank’s child support
payments from $200 to $300 a month, and Zank “waive[d] pursuing further action arising from
the arrival of the minor child in Ecuador.” In return for his concessions, Zank received a lifting
of the 2010 Ecuadorian court order, and Lopez Moreno’s permission to have BLZ visit him in
Michigan when not in school in Ecuador.
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Lopez Moreno and Zank tell conflicting stories about how they came to reach this
agreement. In Lopez Moreno’s telling, she decided to resolve her disagreements with Zank after
recognizing the harm that the dispute caused to BLZ. In Zank’s telling, Lopez Moreno presented
him with an ultimatum: agree to her demands or be permanently cut off from BLZ. The district
court credited Zank’s account over that of Lopez Moreno, as evidenced by the one-sidedness of
the agreement towards Lopez Moreno. The court also made a specific determination that Zank
“was coerced into making the agreement.”
Zank and Lopez Moreno brought the agreement to an Ecuadorian family court for
ratification. The Ecuadorian court approved and ratified the agreement, granting permanent
custody of BLZ to Lopez Moreno in Ecuador, but permitting BLZ to make temporary visits to
Zank in the United States. The district court below noted that the Ecuadorian court was
apparently not apprised of the background of the case, including the fact that Lopez Moreno had
taken BLZ to Ecuador in violation of the Michigan state court order, or that Zank had attempted
(though ultimately failed) to file a petition under the Hague Convention.
Following the Ecuadorian agreement, BLZ made one visit to Zank in Michigan in 2014,
without incident. In 2015, before a second visit of BLZ to Zank in Michigan, Lopez Moreno and
Zank entered into a second agreement, this one in the United States. This agreement tracked the
Ecuadorian agreement: it stipulated that BLZ had “established a life in Ecuador,” that primary
custody should be awarded to Lopez Moreno, that BLZ would be allowed to visit Zank in
Michigan, and that Zank would pay Lopez Moreno the agreed-upon child support. Lopez
Moreno and Zank apparently intended to file this agreement with the Montcalm County Circuit
Court, the court that had granted Zank temporary custody of BLZ in 2009 and never revoked
Zank’s custody of BLZ. The lawyer that Lopez Moreno chose to draw up and file the second
agreement apparently bungled the matter, however. The agreement was addressed to an
uninvolved Michigan court, the Kent County Circuit Court. In addition, as the district court
determined, the version of the agreement entered into the record leaves it unclear as to whether
the agreement was actually filed with any court.
In 2016, Lopez Moreno again sent BLZ to visit Zank for the summer. This visit did not
go as planned. Zank testified that, during this visit, BLZ told him that Lopez Moreno had
No. 17-2397 Lopez Moreno v. Zank Page 5
physically abused her, by hitting her and throwing a chair at her, and that she did not wish to
return to Ecuador. On August 5, 2016, BLZ called Lopez Moreno, and, in a “very fast
conversation,” BLZ stated that she had learned “the entire truth” about the divorce, believed that
Lopez Moreno “was a drug user,” and had realized that Lopez Moreno had abducted her to
Ecuador. However, BLZ did not explicitly say in this conversation that she would not return to
Ecuador. Even so, on August 10, Zank did not place BLZ on a scheduled flight to Florida to
visit Walt Disney World with Lopez Moreno’s father, and, on August 15, Zank did not place
BLZ on a flight scheduled to take BLZ from Michigan back to Ecuador.
On October 10, 2016, Zank filed a petition with the Montcalm County Circuit Court for
permanent custody of BLZ. The Friend of the Court investigated Zank’s living situation and
determined that the best interest of BLZ was for Zank to be granted permanent custody of her,
given, among other things, that Lopez Moreno had violated the 2009 custody order and that BLZ
voiced a preference for living permanently with Zank. Lopez Moreno was not present in this
process, apparently because she had not updated her address with the court when she left for
Ecuador. On October 31, 2016, the Montcalm County Circuit Court granted permanent sole
custody of BLZ to Zank.
On August 14, 2017, Lopez Moreno filed this Hague Convention petition in U.S. District
Court, contending that Zank’s retention of BLZ in Michigan was wrongful. The complaint
sought the immediate return of BLZ to Ecuador and made the allegation, necessary to relief
under the Convention given Lopez Moreno’s arguments, that BLZ was a habitual resident of
Ecuador. The district court rejected this argument, however. Although the court acknowledged
that BLZ had spent such extensive time and maintained such a social connection to Ecuador that
she would otherwise be deemed a habitual resident of that nation, it held that “because [Lopez
Moreno] abducted BLZ in violation of Michigan law and brought her [to Ecuador] in 2009,” she
could not have become habitually resident in Ecuador, and that her habitual residence
accordingly remained in the United States. The district court proceeded to decide further that,
because BLZ maintained habitual residency in the United States, the 2009 custody order
continued to apply to BLZ and the subsequent Ecuadorian and American agreements between
Lopez Moreno and Zank did not overcome that custody order. The former did not apply because
No. 17-2397 Lopez Moreno v. Zank Page 6
an Ecuadorian court did not have jurisdiction over an American custody assignment, and the
latter did not because there was no evidence that the agreement was ever ratified by the
Montcalm County Circuit Court. Lopez Moreno appeals.
Relief under the Hague Convention, as implemented by the International Child
Abduction Remedies Act (ICARA), is available only where there is a “removal or retention of a
child . . . 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.” Hague
Convention on the Civil Aspects of International Child Abduction, Art. 3, Oct. 25, 1980, T.I.A.S.
No. 11,670. U.S. law provides for a cause of action for the return of a child where a petitioner
establishes that the “child has been wrongfully removed or retained within the meaning of the
Convention.” 22 U.S.C. § 9003(e)(1).
The central issue in this case is whether Lopez Moreno’s questionable removal of BLZ
from Michigan to Ecuador in 2009 precluded the possibility that BLZ had become habitually
resident in Ecuador for purposes of Lopez Moreno’s Hague Convention challenge to Zank’s
retention of BLZ in Michigan in 2016. If the answer is yes, and BLZ was a habitual resident of
Michigan in 2016, then Lopez Moreno could get no relief under the Convention,1 and that is the
end of the case because such relief under the Convention is all that her complaint sought. If the
answer is no, and BLZ in 2016 was a habitual resident of Ecuador for Hague Convention
purposes, then that conclusion destroys the basis for the remainder of the district court’s analysis
examining whether Zank’s retention of BLZ in 2016 was a breach of United States law.
Accordingly, we do not need to address that latter analysis, and it is sufficient on this appeal for
us to resolve only the determinative habitual residence issue. When reviewing a Hague
Convention petition claiming that a child was wrongfully abducted from a previous residence,
“a court in the abducted-to nation has jurisdiction to decide the merits of an abduction claim, but
not the merits of the underlying custody dispute.” Friedrich v. Friedrich (Friedrich II), 78 F.3d
1060, 1063 (6th Cir. 1996).
1Relief under the Convention requires a showing that a removal or retention is contrary to the law of the
state of habitual residence, and Lopez Moreno makes no argument that Zank’s retention of BLZ violated Michigan
law.
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The Hague Convention requires the return of a child wrongfully removed or retained
contrary to “the law of the State in which the child was habitually resident,” Hague Abduction
Convention, Art. 3, but the Convention does not itself define the term “habitual residence.” We
have held that, for children above the age of cognizance, cf. Ahmed v. Ahmed, 867 F.3d 682, 689
(6th Cir. 2017), a habitual residence is “the nation where, at the time of [her] removal, the child
has been present long enough to allow ‘acclimatization,’ and where this presence has a ‘degree
of settled purpose from the child’s perspective.’” Robert v. Tesson, 507 F.3d 981, 993 (6th Cir.
2007) (quoting Feder v. Evans-Feder, 63 F.3d 217, 224 (3d Cir. 1995)). Lopez Moreno argues
that Ecuador meets that standard here, and so qualifies as BLZ’s habitual residence.
The district court found that, by 2016, Ecuador met all requirements to have become
BLZ’s habitual residence, given that she had lived there continuously since the age of three, and
maintained an active social, familial, and academic life in that nation. Zank does not challenge
the facts underlying this conclusion, and the assessment is clearly correct. From BLZ’s
perspective, at the time of Zank’s retention of her in the United States, Ecuador was the place in
which she possessed all degrees of settled purpose. The only basis for deciding that BLZ was
not habitually resident in Ecuador in 2016 is the purported illegality of Lopez Moreno’s actions
in 2009 in taking BLZ to Ecuador in the first place. But that is not enough to trump the
acclimatization standard, at least where Zank failed to pursue all treaty-based remedies in
Ecuador to secure BLZ’s return to the United States.
The object and purpose of the Hague Convention is to provide an international legal
scheme 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.” Hague Abduction Convention, Preamble. The Convention accordingly seeks to
avoid the harms to a child’s well-being that come from being torn from the surroundings to
which the child has been accustomed. See id.; see also H.R. Rep. No. 100-525 (1988), at 5,
reprinted in 1988 U.S.C.C.A.N. 386, 386–87. States party to the Convention therefore undertake
to return a wrongfully taken child when proceedings are brought promptly, subject to certain
exceptions related to the child’s welfare and desires. The Convention also allows a person
seeking relief to bring these proceedings without the assistance of State agents by “applying
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directly to the judicial or administrative authorities of a Contracting State.” Hague Abduction
Convention, Art. 29.
Therefore, if Convention procedures are not fully pursued when a child is first abducted,
it makes little sense to categorically permit later self-help abduction in the other direction, after
the child has been acclimatized in the second country. First, permitting re-abduction results in a
total disregard for the limits that the Convention puts on the remedy for the first abduction, such
as time limits,2 and exceptions for the child’s welfare or mature preference. Second, permitting
abduction for a second time carries the same threat to the child’s well-being of being torn from
an accustomed residence. The Convention scheme achieves its purposes only if Convention
processes are applied, with applicable exceptions, each time a child is abducted from a country in
which the child has been acclimatized. The rule applied by the district court in this case is not
consistent with such a scheme.
At least two of our sister circuits have come to a similar conclusion. The Eleventh
Circuit recently addressed the situation of a child who was born in the United States, was taken
by the mother to Guatemala in what the father believed was a wrongful manner, and then was
kidnapped back to the United States by the father. Ovalle v. Perez, 681 F. App’x 777, 779 (11th
Cir. 2017). The Ovalle court held that the child’s habitual residence was in Guatemala, at least
for purposes of the mother’s subsequent Hague petition seeking to remedy the re-abduction,
given the father’s reliance on self-help, and, in part, his “failure to ‘pursue his legal remedy’
under the Hague Convention.” Id. at 783 (quoting Kijowska v. Haines, 463 F.3d 583, 588–89
(7th Cir. 2006)). In Kijowska, the Seventh Circuit provided the following alternative reasoning
for its determination that a child brought to Poland and subsequently retained there was a
habitual resident of that nation:
Suppose that [the child]’s habitual residence when her mother took her to Poland
in December 2004 was the United States and that [her mother]’s removal of her
was wrongful. [The father]’s remedy would have been to file a petition under the
Hague Convention and its implementing federal statute. He did not do that. He
merely sought a custody order from an Illinois state court and then used that order
2A petition must be filed within one year of removal, or else significant defenses to a return order apply.
See, e.g., Lozano v. Montoya Alvarez, 134 S. Ct. 1224, 1229 (2014) (citing Hague Abduction Convention, Art. 12).
No. 17-2397 Lopez Moreno v. Zank Page 9
to help obtain the self-help remedy of taking the child from the airport. To give a
legal advantage to an abductor who has a perfectly good legal remedy in lieu of
abduction yet failed to pursue it would be contrary to the Hague Convention’s
goal of discouraging abductions by denying to the abductor any legal advantage
from the abduction. By failing to pursue his legal remedy, [the father] enabled
[the child] to obtain a habitual residence in the country to which her mother took
her, even if the initial taking was wrongful. For as we have seen, there is no doubt
that if the circumstances in which [the child] was taken to Poland are set to one
side, by May 2005 she was indeed a habitual resident of Poland.
Kijowska, 463 F.3d at 588–89.
Zank seeks to defend the district court’s decision based on a statement in our decision in
Friedrich I, that a fundamental purpose of the Hague Convention is to “deter parents from
crossing international boundaries in search of a more sympathetic court.” Friedrich v. Friedrich
(Friedrich I), 983 F.2d 1396, 1400 (6th Cir. 1993). But Friedrich I did not deal with the
situation here. We said in Friedrich I that “the change in geography must occur before the
questionable removal . . . . If we were to determine that by removing [a child] from his habitual
residence without [one parent]’s knowledge or consent [the other parent] ‘altered’ [the child]’s
habitual residence, we would render the Convention meaningless.” Id. at 1402. Here, by
contrast, the relevant change in geography clearly preceded the removal or retention being
questioned, that is, the subsequent retention by Zank. It is very different to say that in the
absence of a Hague Convention suit, the non-suing parent can use self-help much later, and be
free from suit by the parent who never had the chance to defend against such a previous petition,
with whatever defenses might properly have been available then.
The other cases cited by Zank also do not support what the district court did in this case.
See Miller v. Miller, 240 F.3d 392, 400 (4th Cir. 2001); Kijowska, 463 F.3d 588–89; Nunez-
Escudero v. Tice-Menley, 58 F.3d 374, 379 (8th Cir. 1995). Miller’s statement about the effect
of a previous wrongful removal was dicta in light of that case’s holding that there was no initial
wrongful removal or retention there. See Miller, 240 F.3d at 401. Kijowska, as noted above,
directly supports our analysis. In Nunez-Escudero, the Eighth Circuit rejected an argument that
habitual residence follows the mother, citing our language in Friedrich I. See Nunez-Escudero,
58 F.3d at 379 (citing Friedrich I, 983 F.2d at 1402).
No. 17-2397 Lopez Moreno v. Zank Page 10
We do not address the situation where someone in Zank’s position actually filed a Hague
petition in Ecuador. Here, Zank brought no such case in Ecuador. Zank testified that he meant
to file a Hague petition, but did not do so because he encountered what he calls “the runaround”
from officials at the U.S. Embassy in Ecuador. Any lack of help by U.S. embassy officials is
clearly not enough to say that Zank could not have brought an action in an Ecuadorian court.
The record is also not sufficient to overcome our general presumption about the adequacy of
remedies available in a country that is party to the Hague Convention. We also do not address
the situation where a properly filed Hague petition was denied. But in that situation a U.S. court
would presumably at least give that Ecuadorian decision substantial deference. See Diorinou v.
Mezitis, 237 F.3d 133, 143 (2d Cir. 2001).
This is also not a case that raises the issue of what a U.S. court should do when a treaty
partner renounces, or consistently violates, a treaty that is implemented by statute. Although the
district court credited a report from the U.S. Department of State indicating that Ecuador has
been delinquent in its Hague obligations since 2014, the report says nothing about Ecuador’s
compliance with the Convention in 2009 or 2010. Such a report does not absolve Zank of his
obligation to fully pursue all available Hague Convention procedures in Ecuador, including filing
a petition with the Ecuadorian courts.
Our holding that Ecuador was the habitual residence of BLZ in 2016 does not
automatically mean that Zank must return her now. Just as Lopez Moreno could have raised
defenses to a Hague Convention case had one been brought in Ecuador, Zank can raise such
defenses in this case on remand. Several such defenses were raised by Zank in the district court
below, but the district court had no occasion to reach them. For instance, Zank contended below
that Lopez Moreno had failed to file the petition within the one-year limit following the wrongful
retention, because Zank contended that this retention began on August 10, when Zank did not
place BLZ on the flight to Florida. If Zank is correct, then under the Convention return to
Ecuador would not be required if BLZ had become “settled” in Michigan, because the Hague
Convention does not require return after a year if “it is demonstrated that the child is now settled
in its new environment.” Hague Abduction Convention, Art. 12. In addition, a district court
hearing a Hague petition may refuse to return a child otherwise required to be returned if “the
No. 17-2397 Lopez Moreno v. Zank Page 11
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.” Simcox v. Simcox, 511 F.3d 594, 603 (6th Cir. 2007)
(citing Hague Abduction Convention, Art. 13). In this case, BLZ was born in 2006 and may
therefore possess the age and maturity to have her views taken into account. We have held that
the maturity defense is a case-specific one, and requires specific fact-finding by the trial court as
to the ability of the child to form those wishes. See id. At oral argument in this appeal, counsel
for Lopez Moreno agreed that such arguments could be addressed in the district court should
Lopez Moreno succeed in obtaining a remand.
We therefore remand this case to the district court for a first evaluation of Zank’s
defenses against Lopez Moreno’s prima facie Hague Convention case. Such a remand is
warranted because these defenses are all fact-intensive ones, generally requiring specific and
detailed fact-finding by the district court. See Friedrich II, 78 F.3d at 1067.
The judgment of the district court is reversed and the case is remanded for further
proceedings consistent with this opinion.