Blanca Reyes Valenzuela v. Steve Michel , 736 F.3d 1173 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BLANCA ELISA REYES VALENZUELA, No. 12-17205
Petitioner-Appellant,
D.C. No.
v. 4:12-cv-00215-
RCC
STEVE LOUIS MICHEL,
Respondent-Appellee.
OPINION
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, District Judge, Presiding
Argued and Submitted
August 14, 2013—San Francisco, California
Filed November 15, 2013
Before: Stephen Reinhardt, John T. Noonan,
and Andrew D. Hurwitz, Circuit Judges.
Opinion by Judge Noonan;
Concurrence by Judge Reinhardt
2 VALENZUELA V. MICHEL
SUMMARY*
Hague Convention
The panel affirmed the district court’s denial, after a
bench trial, of a mother’s petition under the Hague
Convention on the Civil Aspects of International Child
Abduction for the return of her children to Mexico.
The children were born in Mexico. Their parents had
used a “shuttle custody” arrangement in which the children
had split their time between Mexico and the United States.
The panel held that the Convention did not attach because the
parents shared a settled intention to abandon Mexico and
adopt the United States as the children’s habitual residence.
The panel concluded that the father also could have
prevailed on the basis that he and the mother shared a settled
intention to abandon Mexico as the children’s sole habitual
residence, that there was an actual change in geography, and
that an appreciable period of time had passed; therefore, the
children were habitually resident in the United States when
the father retained them.
Judge Reinhardt concurred in his colleagues’ conclusions.
He wrote that the questions of “shuttle custody” and “dual
habitual residence” were deserving of more thorough
consideration than was possible in this case.
The panel ordered the mandate to issue at once.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
VALENZUELA V. MICHEL 3
COUNSEL
Ann Haralambie, Tucson, Arizona, for Petitioner-Appellant.
Scott Gan, Tucson, Arizona, for Respondent-Appellee.
OPINION
NOONAN, Circuit Judge:
We are tasked with deciding whether twin girls, now
resident with their father in the United States, should be
returned to their mother in Mexico. The U.S. District Court
for District of Arizona ruled that they should not. We affirm.
FACTS
In late 2006, Steve Michel and Blanca Reyes Valenzuela
chose to live together in Nogales, Mexico. The twins were
born in 2008.
According to Steve’s undisputed testimony, the couple
lived together in Nogales, Mexico. The couple agreed in
2009 that to avoid having to cross the border for work, Steve
should move to the Arizona side. They agreed to “set a
pattern to keep [the twins] in the United States” in order to
take advantage of education, medical help and government
support in the United States.
After the twins received their passports in May 2009, until
the fall of 2010, they split their time between Mexico and the
United States. They lived with Blanca in Mexico Monday
4 VALENZUELA V. MICHEL
through Wednesday and lived with Steve in the United States
Thursday through Sunday.
In September 2010, the relationship between Blanca and
Steve soured. Blanca threatened to have him beaten up or
killed. For around two months in the fall of 2010, Blanca did
not allow him to have any contact with the twins. Under the
belief that she posed a danger to the children, Steve reported
Blanca to Arizona Child Protective Services and to its
Mexican equivalent, DIF, in November 2010.
From Christmas 2010 to February 2011, the twins split
their time between Steve and Blanca evenly. In February
2011, Blanca would not regularly meet Steve or respond to
his messages to go to the border so he could take the twins to
the United States. Steve did take the children on March 24,
2011. He told Blanca he would return them at 7 PM on
March 27th, but he sent Blanca a text message on March 27th
saying he would not bring them back.
PROCEEDINGS
Blanca filed her application under the Hague Convention
on International Aspects of Child Abduction, 19 I.L.M 1501
(entered into force October 25, 1980) [“Convention”], two
days after Steve retained the twins; she also filed a petition
for Writ of Habeas Corpus for Return of Child in the District
Court claiming Steve violated the Convention and its
implementing legislation, 42 U.S.C. §11063(a), the
International Child Abduction Remedies Act [“ICARA”].
At trial, Blanca and her witnesses testified via telephone
from Mexico with the help of an interpreter. Steve testified
that Blanca agreed to keep the twins in the United States to
VALENZUELA V. MICHEL 5
send them to school and get them better medical care.
Blanca, in her testimony, disagreed with much of what Steve
had said during his testimony. She also talked over some of
her witnesses. The district court found Steve’s testimony to
be more credible, noting that Blanca seemed to be coaching
her witnesses. Based on Steve’s testimony and the testimony
of Fernando Leal, the DIF social worker, the district court
held that the parties “abandoned Mexico as [the children’s]
habitual state of residence when their parents decided they
should, for an indefinite period, spend the majority of their
time in the United States.”
The district court denied Blanca’s motion for
reconsideration, holding that (1) substantial evidence
supported the judgment; and (2) Steve’s testimony was more
credible on the issue of habitual residence, despite Leal’s
affidavit withdrawing a portion of his trial testimony.
Blanca timely appeals.
ANALYSIS
Both the United States and Mexico are parties to the
Convention. The central purpose of the Convention is to
prevent forum shopping in custody battles. PAUL R.
BEAUMONT & PETER E. MCELEAVY, THE HAGUE
CONVENTION ON INTERNATIONAL CHILD ABDUCTION, 1
(1999). It explicitly is not aimed at adjudicating the
underlying custody dispute. Convention, Art. 19. “The
Convention’s focus is . . . whether a child should be returned
to a country for custody proceedings and not what the
outcome of those proceedings should be.” Holder v. Holder,
392 F.3d 1009, 1013 (9th Cir. 2004). The drafters intended
that the Convention be interpreted uniformly across
6 VALENZUELA V. MICHEL
jurisdictions in order to avoid forum shopping. The Senate,
in adopting the Convention into law, reaffirmed that goal.
Elisa Perez-Vera, Explanatory Report ¶ 66, in 3 Hague
Conference on Private International Law, Acts and
Documents of the Fourteenth Session, Child Abduction 426
(1982) [“Perez-Vera Report”]; ICARA § 11601(b)(3)(B).
Under Article 3 of the Convention,
The removal or the retention of a child is to be
considered wrongful where –
a) it is in breach of rights of custody
attributed to a person, an institution or any
other body, either jointly or alone, under the
law of the State in which the child was
habitually resident immediately before the
removal or retention; and
b) at the time of removal or retention those
rights were actually exercised, either jointly or
alone, or would have been so exercised but for
the removal or retention.
The official report for the Convention describes “habitual
residence” as “a well-established concept in the Hague
Conference, which regards it as a question of pure fact,
differing in that respect from domicile.” Perez-Vera Report
¶ 66. We, however, have rejected a purely factual approach
to habitual residence for reasons laid out by Chief Judge
Kozinski in Mozes v. Mozes, 239 F.3d 1067, 1071–73 (9th
Cir. 2001) (“‘Habitual residence’ is the central – often
outcome-determinative – concept on which the entire system
is founded. Without intelligibility and consistency in its
VALENZUELA V. MICHEL 7
application, parents are deprived of crucial information they
need to make decisions, and children are more likely to suffer
the harms the Convention seeks to prevent.”). Along with
other circuits, we approach the question of habitual residence
as a mixed question of law and fact. See In re B. Del C.S.B,
559 F.3d 999, 1008 (9th Cir. 2009); Silverman v. Silverman,
338 F.3d 886, 896 (8th Cir. 2003); Feder v. Evans-Feder,
63 F.3d 217, 222 n. 9 (3d Cir. 1995). We “review ‘essentially
factual’ questions for clear error and the ultimate issue of
habitual residence de novo.” In re B. Del C.S.B, 559 F.3d at
1008 (quoting Holder, 392 F.3d at 1015).
It is undisputed that Blanca was exercising her rights of
custody at the time of retention. The question is whether the
children were habitually resident in Mexico, the United
States, or both, at the time of their retention.
Factual determinations
“Findings of fact, whether based on oral or other
evidence, must not be set aside unless clearly erroneous, and
the reviewing court must give due regard to the trial court’s
opportunity to judge the witnesses’ credibility.” Fed. R. Civ.
P. 52. Where, as here, findings of fact turn on credibility
determinations, the findings receive heightened deference in
light of “the fact finder’s unique opportunity to observe the
demeanor of the witnesses.” Newton v. National
Broadcasting Co., Inc., 930 F.2d 662, 671 (9th Cir.1990)
(citation omitted). A finding of clear error requires a
“definite and firm conviction that a mistake has been
committed.” Gonzalez-Caballero v. Mena, 251 F.3d 789, 792
(9th Cir. 2001).
8 VALENZUELA V. MICHEL
The district court based its findings of fact primarily on
three key credibility determinations. First, it found that
Steve’s version of the facts was credible. Second, it found
that Blanca’s account was not consistent with her earlier
statement to the social worker about how long the twins were
living in the United States. Finally, it found that Blanca’s
witnesses either lacked independent foundation for their
testimony or were being audibly coached while they were
testifying, possibly by Blanca herself. The court therefore
adopted Steve’s testimony in its findings of fact with
occasional reliance on the social worker’s testimony. These
credibility determinations are supported by the record and
were not clear error. See United States v. Lang, 149 F.3d
1044, 1046 (9th Cir. 1998) (reviewing credibility
determinations under a clear error standard).
In particular, Steve’s testimony as to the frequency with
which he had the children was supported by the testimony of
another of his daughters. His testimony about the duration of
the shuttle custody arrangement was supported by this
daughter as well as by Blanca’s testimony. Steve’s testimony
about the timing and nature of his complaint to the Mexican
DIF was supported by the DIF social worker.
Blanca undermined her own credibility. In at least two
places in the transcript Blanca seems to be participating while
Lupita, her sister-in-law, testified. We find no clear error in
the district court’s findings of fact.
Legal Determinations
Despite the drafters’ insistence that “habitual residence”
does not need defining, courts have inevitably tried. The
resulting lack of uniformity across jurisdictions is
VALENZUELA V. MICHEL 9
unsurprising, especially in light of the variety of situations in
which a dispute over habitual residence can arise. In the
Ninth Circuit, we look for the last shared, settled intent of the
parents in an attempt to determine which country is the “locus
of the children’s family and social development.” Mozes,
239 F.3d at 1084. Mozes requires that there be a shared intent
to abandon the prior habitual residence, unless the child
“consistently splits time more or less evenly between two
locations, so as to retain alternating habitual residences in
each.” Id. at 1081 and n.17. Once intent is shown, Mozes
requires an “actual change in geography” combined with an
“appreciable period of time” to establish a change in habitual
residence. Id. at 1078 (citing Friedrich v. Friedrich, 983 F.2d
1396 (6th Cir. 1993) for the former factor and C v S (minor:
abduction: illegitimate child), [1990] 2 All E.R. 961, 965
(Eng.H.L.) for the latter).
Following Mozes, the district court ruled that Steve and
Blanca had a shared, settled intent to abandon Mexico and
adopt the United States as the twins’ habitual residence, and
therefore the Convention does not attach. We agree that the
Convention does not attach. Along with our affirmance of
the district court’s decision, we offer an alternate route to the
same outcome, which reflects our efforts to further the
Senate’s goal of uniform interpretation of the Convention.
Most habitual residence cases fit one of the following two
patterns:
I. Parent 1 and Parent 2 decide to move with
their children from Country A to Country
B. After some time in Country B, Parent
1 decides that she does not want to live in
Country B and moves with the children
10 VALENZUELA V. MICHEL
back to Country A. Parent 2 petitions for
return of the children, arguing that the
children had acquired habitual residence
in Country B.
II. Parent 1 and Parent 2 live in Country A.
They decide together that Parent 2 and the
children will visit Country B for a
predetermined amount of time, returning
to Country A after the visit. After arriving
in Country B, Parent 2 decides to extend
his time there indefinitely and to keep the
children with him. Parent 1 petitions for
return of the children, arguing that they
had not acquired habitual residence in
Country B.
Very few cases arising under the Convention feature
shuttle custody. In shuttle custody situations, Parent 1 and
Parent 2 agree to split custody between two countries,
shuttling the children between the countries on a regular
basis. Steve and Blanca decided the children would split time
between countries before their relationship soured, and the
children were shuttled more frequently than in any other
cases. Blanca’s and Steve’s residences, as of the time of the
petition, are in two different countries, but they are only
around ten miles apart, by far the closest of any two parents
in all of the habitual residence cases brought under the treaty
worldwide.
The only U.S. court to entertain the possibility that a child
had alternating habitual residences was a district court in New
York. In Brooke v. Willis, a court-ordered custody
arrangement dictated that a child spend fifty percent of her
VALENZUELA V. MICHEL 11
time in the United States and the other fifty percent in
England. 907 F. Supp. 57 (S.D.N.Y. 1995). After a fall
semester in California, the mother retained the child in
California in breach of the agreement. The father, in
England, filed a petition under the Convention. The court
ruled that the child was habitually resident in England at the
time of her retention, with the caveat that “it is arguable that
[the child] is also a habitual resident of the United States
under the Convention. However, for purposes of this petition
it is only crucial to determine if England can be considered
[her] habitual residence.” Id. at 61 n.2. No other U.S. court
has been faced with shuttle custody under the Convention.
The closest fact pattern to the one before us is from a case
decided by the High Court of Northern Ireland. In In re C.L.
(a minor), a child shuttled between Belfast and Dublin, a
distance of 105 miles. After acknowledging that the fact
pattern is “unusual if not unique,” the court found that when
the child moved between his parents “on a weekly basis, he
was habitually resident in whichever jurisdiction he was
living in.” In particular, the judge said that
[t]he decision to share the responsibility for
the upbringing of the child on an alternate
week basis in the jurisdictions was a major
step in the child’s life. It is also significant
that the week in Dublin was spent in a home
which was the habitual residence of his carers
for that week and with whom he was familiar.
It was not intended that his stay there on an
alternate week basis would be either “merely
transient or temporary”. Thus residence solely
in Northern Ireland was broken and the
respondent agreed to that. The continuance of
12 VALENZUELA V. MICHEL
this new arrangement must inevitably lead to
the child having that degree of continuity in
the other jurisdiction, which is required for
habitual residence in that jurisdiction when he
is residing there. Thus by January 1998 the
child was habitually resident in whichever
jurisdiction he was living for a particular
week. . . . Should he remain longer than a
week in one jurisdiction his habitual residence
would not change so long as he remains there.
In re C.L. (a minor) and In re the Child Abduction and
Custody Act 1985; JS v CL (unreported NIFam HIGJ2630 25
Aug. 1998) (emphasis added).
Like the In re C.L. court in Northern Ireland, courts in
other jurisdictions have held that the shuttle custody cases
before them reflect serial, or alternating, habitual residence.
In Wilson v. Huntley, a Canadian case, a three-year-old girl
split time between her parents, who lived in Germany
(mother) and Canada (father). The splits varied in length,
from three to six months. A few weeks before she was to
return from Canada to Europe, the father informed the mother
that he wanted to keep his daughter in Canada. The court
found that a person, including a child, could have
consecutive, alternative habitual residences in two different
States at separate times. The court held that at the time of
retention, the girl was habitually resident in Canada. Wilson
v. Huntley, 2005 CarswellOnt 1606 (WL), (Can. O.N. S.C.)
¶ 28 (“It is of course not in doubt that a person, including a
child, may have a habitual residence in two different
countries at different times of the year.”) (quoting In the
Matter of A. (Abduction: Habitual Residence), [1998]
1 F.L.R. 497 (Eng.), available at http://www.hcch.net/
VALENZUELA V. MICHEL 13
incadat/fullcase/0176.htm) (internal citation omitted). See
also Watson v. Jamieson, (1998) S.L.T. 180, 182 (Scot.)
(“Where residence with two parents is divided equally it is
unreal, in the absence of other differentiating factors, to see
residence with one parent as primary and the stays with the
other parent as interruptions.”).
The district court judge below did not err in deciding that
Blanca and Steve shared a settled intention to abandon
Mexico – they had immediate plans to avail the twins of
government assistance in the United States as well as longer-
term plans to educate the children in the United States. We
note that, based on the shuttle custody cases from our sister
courts presented above, Steve could have prevailed by
showing that he and Blanca shared a settled intention to
abandon Mexico as the twins’ sole habitual residence, that
there was an actual change in geography, and that an
appreciable period of time had passed. Because all three
elements are present here, we affirm the district court in its
decision that the twins were habitually resident in the United
States when Steve retained them.
While the emotional aspects of this case are fraught, the
law is clear. The children were habitually resident in the
United States when Steve retained them. Their retention was
therefore not “wrongful” under the Convention. Steve is not
required by the Convention or this court to return the children
to Mexico.
AFFIRMED.
The mandate shall issue at once. Fed.R.App.P. 2.
14 VALENZUELA V. MICHEL
REINHARDT, Circuit Judge, Concurring:
As Judge Noonan reports, this case presents a unique fact
pattern. Given the district court’s findings, I concur in my
colleagues’ conclusions. I also believe, however, that the
questions of “shuttle custody” and “dual habitual residence”
are deserving of more thorough consideration than is possible
in the case before us. Still, Judge Noonan has done us a
service by beginning that exploration here.