Darin v. Olivero-Huffman

United States Court of Appeals
For the First Circuit
No. 12-2256
LISANDRO JONATHAN DARÍN,
Petitioner, Appellant,
v.
LUA CECILIA OLIVERO-HUFFMAN,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Camille L. Vélez-Rivé, U.S. Magistrate Judge]
Before
Howard, Ripple,* and Thompson,
Circuit Judges.
Rubén T. Nigaglioni, with whom Nigaglioni Law Offices P.S.C.
was on brief, for appellant.
Charles S. Hey-Maestre, with whom Maricarmen Carrillo-
Justiniano and Servicios Legales de Puerto, Inc. were on brief, for
appellee.
March 19, 2014
*
Of the Seventh Circuit, sitting by designation.
THOMPSON, Circuit Judge. This is an appeal from the
denial of a petition for the return of a child to Argentina under
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. 89,
reprinted in 51 Fed. Reg. 10494-01 (Mar. 26, 1986) ("Convention"),
and its implementing statute, the International Child Abduction
Remedies Act ("ICARA"), 42 U.S.C. §§ 11601-11611 (2000). Lisandro
Jonathan Darín ("Darín") initiated these proceedings against Lua
Cecilia Olivero-Huffman ("Olivero"), seeking the return of their
son ("LAD") to Argentina from the United States. The district
court denied the petition, and this appeal followed. We reverse
and remand.
I. FACTUAL BACKGROUND
Darín is a citizen of Argentina. Olivero is a United
States citizen from Puerto Rico. The parties first met at some
point between 2004 and 2005 at a friend's gathering in Argentina.
Olivero had traveled to Argentina in 2004 to visit a friend, and
decided to stay for a full year to study dance therapy. She
ultimately enrolled in a three year program. In 2005, Olivero
returned to the United States, where she worked for six months in
order to afford her dance therapy studies. She then went back to
Argentina. In 2006, Olivero and her sister bought an apartment in
Buenos Aires, Argentina.
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Although the parties had met earlier, it was not until
2007 that they entered into a romantic relationship. Quickly
thereafter, Olivero became pregnant, and by then the parties were
living together in Olivero's apartment. During the pregnancy,
Darín and Olivero traveled together to the United States, returning
to Argentina prior to the arrival of their son. LAD was born in
Buenos Aires on April 20, 2008, and is a citizen of both the United
States and Argentina. Following the birth of their son, the
parties moved into a Buenos Aires apartment Darín had inherited
from his father.
On December 11, 2008, Darín and Olivero took LAD to the
United States for approximately two months, returning to Argentina
on February 9, 2009. All three traveled again to the United States
on March 24, 2009, where they remained until August 7, 2009. As
before, they returned to Argentina. On January 19, 2010, Olivero
and LAD traveled to the United States -- without Darín -- under a
power of attorney ("POA") signed by the parties in Argentina,
pursuant to which LAD was authorized to travel to any country in
the world accompanied by either parent. While in the United
States, Olivero informed Darín she and LAD were not returning to
Argentina in March as the parties had previously agreed, that she
did not want to return, and that she did not know when they would
return. Despite her expressed reservations, mother and son
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ultimately went back to Argentina in April 2010, just before LAD's
second birthday.
The couple separated upon Olivero's return, but continued
to live in the same Buenos Aires apartment for two and a half
months. At this point, Darín revoked the POA, seemingly so that
Olivero could no longer take their son out of Argentina without
him. According to his testimony, he did so because he did not
trust her anymore. Olivero and LAD eventually moved back into her
apartment in Buenos Aires, and LAD began attending a nearby
kindergarten. LAD split his time between his mother's apartment
and his father's.
Darín and Olivero's separation lasted approximately seven
months. During this period, and unbeknownst to Darín, Olivero
consulted "a couple of lawyers" in Argentina to explore methods of
taking the child to the United States without the child's father's
consent. One lawyer counseled her on how to ask for custody in
Argentina, while others advised her that she "had a better chance
of returning to [the United States]" if she asked for custody in
Puerto Rico. After pondering whether she should seek custody of
LAD in the United States, Olivero decided against it because it
"wasn't something [she] was able to do."
On November 9, 2010, Olivero made a quick trip to the
United States by herself -- presumably because Darín had revoked
the POA that allowed either parent to take LAD out of the country
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-- leaving LAD in Darín's care. Soon after her return, Olivero and
Darín reconciled and, by January of 2011, were living together once
again.1 The reconciliation, however, was short-lived as it was
quickly followed by the decision that ultimately led to their
protracted legal quarrel, which culminated in this appeal.
On January 31, 2011, the family traveled to the United
States. Their first stop was Orlando, Florida, where they spent a
total of four days. The family then moved on to Puerto Rico. At
the outset of the trip, the plan was to spend some time in Puerto
Rico with Olivero's family and then fly back to Argentina on March
2, 2011. However, during their stay in Puerto Rico, the plan began
to change and the date of return was pushed back due to Olivero's
involvement in a car accident and her apparently new-found interest
in pursuing a business venture with her sister. Around mid-March
2011, Olivero announced to Darín that neither she nor LAD would be
returning to Argentina. Darín remained on the island as long as he
could, but his tourist visa was set to expire in July 2011.
On July 7, 2011 -- just two days before Darín's departure
-- Darín and Olivero executed an affidavit regarding the care and
supervision of their son during Darín's absence (the "Affidavit").
Olivero drafted the Affidavit herself. The Affidavit's terms
1
Olivero testified it was not until after she realized that
she was unable to heed the Argentine lawyers' advice to seek
custody in the United States that she decided to reconcile with
Darín.
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authorized her to take any steps necessary to provide for the
education, health care, and overall well-being of the child. A
provision authorizing the child to travel with either parent was
there as well. At Darín's insistence, language was included
stating he was leaving the United States "against his will" and was
not abandoning his child. He eventually left the country on July
9, 2011.2 Thereafter, although separated geographically, Darín
maintained continuous and frequent communication with his son.
On November 18, 2011, Olivero filed for legal custody of
LAD in Puerto Rico state court. According to the custody petition,
Olivero filed so that she could "send [LAD] to visit [Darín] at
Christmas," since they had not been able to reach an agreement and
she feared the retention of the child.3 On December 19, 2011,
Darín filed an application under the Convention with the Argentina
Central Authority requesting the return of his son to Argentina.
On February 22, 2012, Darín filed the instant action with the
federal district court in Puerto Rico, alleging Olivero's actions
amounted to a "wrongful retention" of his son.
2
The parties agree Darín returned to Argentina because his
tourist visa was expiring and because he needed to work.
3
The record contains Olivero's Puerto Rico state court
petition for custody dated November 18, 2011. However, we cannot
find anything in the record as to when or whether Darín was served
or otherwise put on notice of this action.
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II. PROCEEDINGS BELOW
According to Darín's petition, Olivero wrongfully removed
or retained LAD in the United States in violation of his joint
custody rights. Olivero countered that there was no wrongful
removal or retention because Darín had "expressly acquiesced and
consented to" the child residing with her in the United States for
an indefinite period of time, and that he did so by executing the
Affidavit.
There were two jointly stipulated issues before the
district court: (1) "whether or not an unlawful retention or
removal of the child occurred in this case, notwithstanding
[Darín's] express consent, given under affidavit, to the child
staying in Puerto Rico under [Olivero's] care and supervision, for
an indefinite period of time;" and (2) "whether Puerto Rico ha[d]
become the child's habitual residence and hence the Puerto Rico
Courts ha[d] jurisdiction to determine permanently the best
interests of the child and to rule on any controversies between the
parties regarding parental custody and visitation rights."
After holding a three-day evidentiary hearing where both
parties had an opportunity to testify,4 the district court
concluded that Darín had not met his burden of establishing a
wrongful removal or retention. Indicating that the alleged removal
4
Darín testified on his own behalf and called Olivero as a
witness. Olivero testified on her own behalf.
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or retention had occurred in July 2011, on the date which Darín
left Puerto Rico,5 the court found that as of that time "a new
habitual residence in [the United States] was acquired based on the
parents' shared intention in signing the affidavit." In other
words, Darín had, according to the court, "acquiesced/consented"6
to LAD remaining in Puerto Rico. The court concluded that because
LAD "was a habitual resident of Puerto Rico at the time of the
claimed removal or retention," the retention or removal was not
wrongful. The court held that the courts of Puerto Rico, as
opposed to Argentina, had jurisdiction to determine any and all
custody disputes. Consequently, it denied Darín's petition and
dismissed his claims, with prejudice. Darín timely appealed.
III. THE CONVENTION
Before tackling the merits of the matter at hand, we
provide some context. The Convention is a multilateral agreement
5
The court saw the date of retention or removal as a clear-
cut issue, indicating in a footnote: "We note the date on which
the removal or retention took place is not an issue in this case
inasmuch as it is undisputed Petitioner left Puerto Rico to [sic]
Argentina on [sic] July 2011 and left his son under the care and
supervision of his mother after signing an affidavit."
6
As will be explained later, consent and acquiescence are
considered defenses or exceptions to a finding of wrongful removal
or retention. However, here the district court seemed to consider
consent and acquiescence in connection with its inquiry about
whether a wrongful removal or retention had occurred in the first
place.
-8-
between ninety-one nations7 that was adopted to counter "the
problem of international child abductions during domestic
disputes." Abbott v. Abbott, 560 U.S. 1, 8 (2010). Its objective
is "to secure the prompt return of children wrongfully removed to
or retained in any Contracting State, and to ensure that rights of
custody and of access under the law of one Contracting State are
effectively respected in the other Contracting States." Id.
(citation omitted) (internal quotation marks omitted). And the
overriding intent is "to restore the pre-removal status quo and to
discourage a parent from engaging in international forum shopping."
Kufner v. Kufner, 519 F.3d 33, 38 (1st Cir. 2008) (citing Whallon
v. Lynn, 230 F.3d 450, 455 (1st Cir. 2000)). "The entire purpose
of the Convention is to deter parents from absconding with their
children and crossing international borders in the hopes of
obtaining a favorable custody determination in a friendlier
7
As of January 27, 2014, ninety-one countries had signed on.
Hague Conference on Private International Law, Status table 28:
Convention of 25 October 1980 on the Civil Aspects of International
Child Abduction, http://www.hcch.net/index_en.php?act=conventions.
status&cid=24 (last visited February 3, 2014).
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jurisdiction."8 Walker v. Walker, 701 F.3d 1110, 1116 (7th Cir.
2012).
The idea is that a child's best interests are better
served when decisions about custody rights are made in the country
of habitual residence. See Abbott, 560 U.S. at 20. Thus, ordering
the return of a child "does not alter the existing allocation of
custody rights." Id. Instead, it allows "the courts of the
[child's] home country to decide what is in the child's best
interests." Id. For this reason, the Convention establishes a
strong presumption in favor of returning a wrongfully removed or
retained child. See Kufner, 519 F.3d at 38 (citing 42 U.S.C. §
11601(a)(4)). However, the Convention provides for certain
exceptions or defenses to this general rule. See Walsh v. Walsh,
221 F.3d 204, 216-17 (1st Cir. 2000).
With this bigger picture in place, we turn to the
parties' contentions on appeal and the criteria of our review.
8
ICARA, the Convention's implementing statute, is true to the
Convention's purpose. According to congressional findings at the
time of its enactment, "[i]nternational abductions and retentions
of children are increasing, and only concerted cooperation pursuant
to an international agreement can effectively combat this problem."
42 U.S.C. § 11601(a)(3). Congress concluded that "[p]ersons should
not be permitted to obtain custody of children by virtue of their
wrongful removal or retention." Id. § 11601(a)(2). To ensure the
prompt return of wrongfully removed or retained children, Congress
gave state and federal district courts concurrent original
jurisdiction over actions arising under the Convention. Id. §
11603(a). Their authority is limited to the determination of
rights under the Convention "and not the merits of any underlying
child custody claims." Id. § 11601(b)(4).
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IV. ARGUMENTS
More on the nitty-gritty of the parties' positions will
follow, but here it suffices to note the following. Darín, for his
part, argues that Argentina is LAD's habitual place of residence
and that he has been wrongfully retained in Puerto Rico by Olivero
in violation of Darín's custodial rights. Olivero counters that
there has been no retention because both parents agreed (via the
Affidavit) that LAD would stay in Puerto Rico under her care.
Further, Olivero says, even assuming there was a retention, it was
not wrongful (as that term is contemplated by the Convention)
because she and Darín agreed that Puerto Rico was LAD's habitual
residence. She suggests that we consider not only the fact that
this change in geography was agreed to, but also LAD's extended
involvement with his family and community in Puerto Rico.
Finally, Olivero contends that, even were we to find that
LAD was wrongfully retained in violation of the Convention, she has
some defenses at her disposal. Specifically, Olivero claims that
Darín consented to LAD remaining in Puerto Rico or, at a minimum,
subsequently acquiesced to this arrangement. Darín steadfastly
maintains that he never did either.
V. STANDARD OF REVIEW
We review the district court's findings of fact for clear
error. Charalambous v. Charalambous, 627 F.3d 462, 466 (1st Cir.
2010) (citing Danaipour v. McLarey, 286 F.3d 1, 13 (1st Cir.
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2002)). Under this standard, a district court's plausible
interpretation of the facts cannot be rejected just because the
record might sustain a conflicting interpretation. In re
O'Donnell, 728 F.3d 41, 45 (1st Cir. 2013). "[T]o find clear
error, a finding must hit us as more than probably wrong -- it must
prompt a strong, unyielding belief, based on the whole of the
record, that the judge made a mistake." Id. (citations omitted)
(internal quotation marks omitted). The district court's
interpretation of the Convention, along with its application of the
Convention to the facts, are reviewed de novo. Felder v. Wetzel,
696 F.3d 92, 98 (1st Cir. 2012) (citations omitted).
With regard to the district court's determination of
habitual residence in particular -- after finding no operative
First Circuit case -- we have considered, and find helpful, the
Seventh Circuit's approach. That court stated: "determinations of
intent involve questions of fact and we will defer to the district
court's findings on intent unless they are clearly erroneous,"
while "[t]he ultimate determination of habitual residence is a
mixed question of law and fact to which we will apply de novo
review." Koch v. Koch, 450 F.3d 703, 710 (7th Cir. 2006). Seeing
no reason to depart from this approach, we now adopt it.
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VI. WRONGFUL RETENTION
We begin by considering whether there has been a wrongful
retention within the meaning of the Convention.9 42 U.S.C. §
11603(e)(1)(A). The law tells us that a retention is wrongful
when: (1) "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 . . . retention;" and (2) "at the
time of . . . retention[,] those rights were actually exercised,
either jointly or alone, or would have been so exercised but for
the . . . retention." Convention, supra Article 3 at 1501. And in
the event of a wrongful retention of a child, the return of the
child to his or her country of habitual residence is ordinarily
called for. See Walsh, 221 F.3d at 216.
Pursuant to ICARA, the petitioner bears the burden of
proof by a preponderance of the evidencce, 42 U.S.C. § 11603(e)(1),
and the petitioner must show that: (1) the country to which the
9
As referenced earlier, wrongful retention is not the only
grounds for return of a child; wrongful removal can suffice as
well. But it is clear that we are not dealing with a case of
wrongful removal here. LAD left Argentina with both Darín and
Olivero, who made the mutual decision to travel outside Argentina
with the child. Neither party's custody rights were breached at
that point. Instead, this case concerns the alleged wrongful
retention of LAD by Olivero in the United States. Notably Darín,
although he might suspect that the 2011 trip was part of a scheme
to bring LAD into the country, does not argue otherwise.
Therefore, this is the last we need to say on the concept of
removal with respect to this case.
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child's return is sought was the child's habitual residence
immediately prior to the retention; (2) the petitioner had custody
rights over the child at the time of the retention; and (3) the
petitioner was exercising those custody rights. See Nicolson v.
Pappalardo, 605 F.3d 100, 103 (1st Cir. 2010). While the burden is
on the petitioner, we often hone in on the respondent parent's
actions to determine whether a wrongful retention has occurred.
See, e.g., id. at 105 (focusing on the facts surrounding the
respondent mother's removal of the child from Australia to the
United States and her actions after she arrived in the United
States); Zuker v. Andrews, 2 F. Supp. 2d 134, 140 (D. Mass. 1998)
(concentrating on the respondent mother's decision to rent her own
apartment in the United States), aff'd by Zuker v. Andrews, 181
F.3d 81, 1999 WL 525936 (1st Cir. 1999).
Here, the issues are narrowed. No one disputes that
Darín had custody rights over LAD or that he was exercising them at
the time of the alleged retention.10 The only question is whether
Darín has been able to establish by a preponderance of the evidence
that Argentina (the country he seeks to return his son to) was
LAD's habitual residence prior to his retention. The district
court thought Darín fell short, but our de novo review causes us to
disagree. We explain.
10
Such a claim would be dubious at best, as the very language
of the Affidavit, which Olivero drafted, states "both [Olivero and
Darín] are the parents with custody of [LAD]."
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A. Date of Retention
The first place we diverge from the district court is the
question of when LAD's alleged retention occurred. This issue is
important because, as we said, Darín needs to prove that Argentina
was LAD's habitual residence immediately prior to the retention in
order for the retention to be wrongful. See Nicolson, 605 F.3d at
103. As noted above, the district court indicated in a footnote
that it was clear that the relevant date of retention was July
2011, which was when Darín left Puerto Rico. Darín, however, in
his original petition with the district court, and before this
court, argued that the retention occurred in mid-March 2011, when
Olivero informed him that she would be remaining in Puerto Rico.11
We find the record as a whole supports Darín's position.
The record reflects that the parties traveled from
Argentina to the United States in late January 2011 for vacation
purposes. They were scheduled to return to Argentina on March 2,
2011. That departure date was "delayed" due to Olivero's
involvement in a car accident and her interest in pursuing a
business venture. At first, Darín went along with the delay --
11
Though only a difference of a few months, the divergence
between the March 2011 date (when Olivero told Darín she wanted to
stay) and the July 2011 date (when Darín left Puerto Rico) is
significant in that the Affidavit was signed in between those two
dates. As we will explain further, because the district court went
with the July date, it included in its analysis, and relied quite
heavily on, the Affidavit to support its finding that Puerto Rico
had become LAD's habitual residence.
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testifying "with a tragedy like that, I said that it was fine" --
while remaining under the impression that they would return to
Argentina. By mid-March 2011, Olivero made it clear to Darín that
she and their son would be permanently residing in the United
States.12 This last detail is crucial to our date of retention
analysis. We are mindful that "[i]t is not easy . . . to attach an
abstract label to a complex of discrete facts," especially where
subjective intent is at issue. Nicolson, 605 F.3d at 105. This is
perhaps even more so true where the complexities of intimate human
relationships are concerned. Even so, we are confident that
Olivero's mid-March declaration that she would remain in the United
States merits the significance we have placed on it. Her actions
afterwards only confirm this. Olivero, true to her word, refused
to return to Argentina.
Once Olivero decided to stay in the United States with
the child, there was nothing Darín could do to prevent a separation
from his son. His tourist visa excluded the possibility of staying
indefinitely with LAD in the United States, and he could not take
LAD back to Argentina because the POA authorizing the child to
travel with only one parent had been revoked. Basically, as of
mid-March 2011, Darín had no legal way of remaining with his son.
12
According to the district court's opinion, "[i]t is
uncontested that, by mid March 2011, [Olivero] told [Darín] of her
intentions to reside permanently in Puerto Rico with the child."
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We are cognizant of the deferential standard of review
that we must afford the district court's fact-bound determinations,
see Charalambous, 627 F.3d at 466, but we do not think the record
permits the conclusion drawn by the district court with regards to
the issue of retention. The court clearly erred in finding that
the retention occurred in July. The alleged wrongful retention in
fact occurred in mid-March 2011.
B. Habitual Residence
Given our determination on the date of retention, the
question now becomes whether Argentina -- i.e., the country to
which the child's return is being sought -- was LAD's habitual
residence in mid-March 2011.
"[A] child's habitual residence is the place where he or
she has been physically present for an amount of time sufficient
for acclimatization and which has a 'degree of settled purpose'
from the child's perspective." Feder v. Evans-Feder, 63 F.3d 217,
224 (3d Cir. 1995). This determination "must focus on the child
and consists of an analysis of the child's circumstances in that
place and the parents' present, shared intentions regarding the
child's presence." Id. The required degree of settled purpose
does not necessarily entail an intention to stay in the place
indefinitely; it "may be for a limited period." Id. at 223. It
could encompass one or multiple goals, and be either general or
specific. Id. For example, a settled purpose with respect to
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residence could be "[e]ducation, business or profession,
employment, health, family or merely love of the place." Id.
In cases involving more than one potential residence, a
distinction must be made between the abandonment of a prior
habitual residence and the acquisition of a new one. See Mozes v.
Mozes, 239 F.3d 1067, 1075 (9th Cir. 2001). A person cannot
acquire a new habitual residence without "forming a settled
intention to abandon the one left behind." Id. "Otherwise, one is
not habitually residing; one is away for a temporary absence of
long or short duration." Id. This settled intention "could
coalesce during the course of a stay abroad originally intended to
be temporary." Id.
When the question is whether a young child -- lacking
both the material and psychological means to decide where he or she
will reside -- has abandoned a prior habitual residence, "the
intention or purpose which has to be taken into account is that of
the person or persons entitled to fix the place of the child's
residence." Mozes, 239 F.3d at 1076 (citations omitted) (internal
quotation marks omitted). And "when the persons entitled to fix
the child's residence no longer agree on where it has been fixed,"
then the "courts 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.
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Generally, it is "the parents' shared intent or settled
purpose regarding their child's residence" that guides our inquiry.
Nicolson, 605 F.3d at 103-04 (emphasis added) (citing Barzilay v.
Barzilay, 600 F.3d 912, 918 (8th Cir. 2010); Maxwell v. Maxwell,
588 F.3d 245, 251 (4th Cir. 2009); Koch, 450 F.3d at 715; Gitter v.
Gitter, 396 F.3d 124, 131-32 (2d Cir. 2005); Mozes, 239 F.3d at
1076-81; Feder, 63 F.3d at 224). One parent's wishes are not
sufficient, by themselves, to effect a change in a child's habitual
residence. See Feder, 63 F.3d at 224-26 (finding a unilateral
decision or change of heart by one party cannot alter the parties'
shared intent regarding habitual residence). Nevertheless, "a
child can lose its habitual attachment to a place even without a
parent's consent . . . if the objective facts point unequivocally
to a person's ordinary or habitual residence being in a particular
place." Mozes, 239 F.3d at 1081 (citation omitted) (internal
quotation marks omitted). After all, "[h]abitual residence is
intended to be a description of a factual state of affairs." Id.
Utilizing Darín's July 2011 departure date as the
operative date of retention, the district court found that the
Affidavit (signed a couple days before), "clearly show[ed] the
parents' last shared intent in determining habitual residence."
According to the district court, even though the original purpose
of the January 31, 2011 trip to Florida and Puerto Rico was for
vacation and not for relocation, the parties' shared intent changed
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while in Puerto Rico. It found significant the Affidavit's open-
ended nature in not setting forth an end date for its provisions
regarding the care and supervision of LAD. It also found telling
that "there ha[d] been a change in geography for an 'appreciable
period of time' that [was] 'sufficient for acclimatization.'" The
court's ultimate conclusion: the United States was LAD's habitual
residence prior to the alleged retention. After conducting a de
novo review, we conclude that this determination is flawed.
Here, a thorough audit of the record reveals there is no
evidence to plausibly support the district court's determination
that the United States, not Argentina, was LAD's habitual
residence. First, we note that the signing of the Affidavit -- on
which the district court placed so much importance -- is irrelevant
to our present inquiry. We are looking for LAD's habitual
residence immediately before the retention and the Affidavit was
signed on July 7, 2011, while the retention (for the reasons
explained above) took place months earlier in mid-March 2011.
Based on the uncontested facts, it is safe to say that,
prior to mid-March 2011, the parties' shared intent was not for the
child to be a habitual resident of the United States. In fact, it
was the parties' shared intent to return to Argentina on March 2,
2011. And Olivero does not deny this was the plan; in fact, she
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testified as much.13 Olivero admits it was she who had a change of
heart once in Puerto Rico and decided to stay there with her son.
It was her wish that they stay in the United States with her
family. Unfortunately for Olivero, a unilateral decision is not
enough. See Feder, 63 F.3d at 224-26. There is simply no evidence
in the record from which the district court could have found a
mutual intent to change their son's habitual residence on the date
of retention.
Furthermore, the district court was misguided in
emphasizing LAD's acclimatization to the United States for purposes
of its habitual residence determination. Evidence of
acclimatization is not enough to establish a child's habitual
residence in a new country when contrary parental intent exists.
See Mozes, 239 F.3d at 1078-79.14 A "change in geography" and "the
passage of an appreciable period of time . . . that is sufficient
for acclimatization" are considerations for the court when "the
decision to alter a child's habitual residence depends on the
13
When asked whether, at the time the family was in Orlando,
she still intended to return to Argentina, Olivero responded: "Our
plans were to come to Puerto Rico and spend some time here and,
then, at the time, go back to Argentina."
14
Of course, some situations will arise where "a child's life
may become so firmly embedded in the new country as to make it
habitually resident even though there be lingering parental
intentions to the contrary," but this is precisely why the
determination of habitual residence is made on a case-by-case
basis. Mozes, 239 F.3d at 1078. And this was not LAD's situation
in mid-March 2011.
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[shared] settled intention of the parents." Id. at 1078 (citations
omitted) (internal quotation marks omitted). In the absence of
shared parental intent, the district court should have "be[en] slow
to infer . . . an earlier habitual residence has been abandoned."
Id. at 1079.
As of mid-March 2011, the objective facts do not point
unequivocally to LAD's habitual residence being the United States.
If anything, an objective observer would think Argentina was LAD's
habitual residence: his father was a citizen of Argentina; his
parents' relationship began and flourished in Argentina; he was
born in Argentina -- indeed, his mother flew to the United States
when she was pregnant with him, but returned to Argentina to give
birth; he had Argentine citizenship; his first months of life were
spent in Argentina where his parents lived; and he returned to
Argentina every time he traveled to the United States. See
Nicolson, 605 F.3d at 104 (applying the lens of an objective
observer to determine whether the child was a habitual resident of
Australia). Before the parties' trip to the United States on
January 31, 2011, LAD had been living in Argentina for two years.
He had started kindergarten, which he had been attending for four
months and which he was supposed to start again in March 2011.15
Furthermore, the child had a grandmother, a great-grandmother and
cousins in Buenos Aires, with whom we must assume he had strong
15
The school year in Argentina is from March to December.
-22-
ties.16 The record simply does not support the district court's
conclusion that the United States, and not Argentina, was LAD's
habitual residence.
Further, the fact that LAD may have spent more aggregate
time in the United States than in Argentina (a stat that Olivero
emphasizes), is not dispositive. It is only one factor in our
analysis. See Barzilay, 536 F.3d at 851-52 (determining a child's
habitual residence requires analyzing many factors, amongst which
are a change in geography and the passage of time). The fact that
a child frequently visits relatives in another country for extended
periods of time, by itself, does not mean the second country is or
becomes the child's habitual residence. Cf. Mozes, 239 F.3d at
1074 ("The obvious reason why [a] camper is not regarded as
habitually resident [of the summer camp] is that he already has an
established habitual residence elsewhere and his absence from
it-even for an entire summer-is no indication that he means to
abandon it.").
The evidence on record does not show that the parties
shared an intent to change LAD's habitual residence to the United
States, but instead it points only to Olivero's individual intent
16
Olivero, herself, testified that after July 2011, she "made
[LAD] call his grandmother and great-grandmother" because "[she]
wanted him to have relation [sic] with them." We do not see why
this would not be the case when the child was living in the same
country as these family members, as the natural implication of this
testimony is that Olivero wished to continue an already existing
relationship with LAD's paternal family.
-23-
to do so. Accordingly, we conclude that the court's finding
otherwise was clearly erroneous. For all the foregoing reasons
(and applying the de novo standard of review the ultimate habitual
residence determination calls for) we find that Darín has
established by a preponderance of the evidence that LAD's habitual
residence as of the retention was Argentina.
C. The End Result
Because there is no dispute as to Darín's custody rights
over LAD or that he was actually exercising those rights at the
time, it necessarily follows that Olivero wrongfully retained LAD
in the United States. Though we find that a wrongful retention
occurred, this determination is not dispositive of the case. As we
mentioned earlier, the Convention provides for certain exceptions
or defenses to the return of a child to his or her country of
habitual residence following a wrongful retention. See Nicolson,
605 F.3d at 105. And so, we turn our attention to the defenses
maintained by Olivero.
VII. DEFENSES
Among the Convention's provided-for exceptions to a
child's return -- and the ones that Olivero asserts here -- are
consent and acquiescence.17 See Convention, supra Article 13a at
17
The other exceptions are: (1) the existence of a grave risk
that the child's return "would expose the child to physical or
psychological harm or otherwise place the child in an intolerable
situation," Convention, supra Article 13b at 1502; (2) "[t]he
return of the child . . . would not be permitted by the fundamental
-24-
1502 ("[T]he judicial or administrative authority of the requested
State is not bound to order the return of the child if the person,
institution or other body . . . having the care of the person of
the child . . . had consented to or subsequently acquiesced in the
removal or retention."). Consent and acquiescence embody two
separate defenses. See Nicolson, 605 F.3d at 103. "The consent
defense involves the petitioner's conduct prior to the contested
removal or retention, while acquiescence addresses whether the
petitioner subsequently agreed to or accepted the removal or
retention." Baxter v. Baxter, 423 F.3d 363, 371 (3d Cir. 2005)
(emphases added) (citing Gonzalez-Caballero v. Mena, 251 F.3d 789,
794 (9th Cir. 2001)).
In order for the opponent of a child's return to
successfully assert either defense, he or she must establish the
petitioner's consent or acquiescence by a preponderance of the
evidence. See 42 U.S.C. § 11603(e)(2)(B); see also Nicolson, 605
F.3d at 105. Further, consent and acquiescence are both
principles of the requested State relating to the protection of
human rights and fundamental freedoms," Convention, supra Article
20 at 1503; (3) the petition for return of a child is not commenced
within one year of the wrongful removal or retention and "the child
is now settled in its new environment," Convention, supra Article
12 at 1502;" and (4) "the person, institution or other body having
the care of the person of the child was not actually exercising the
custody rights at the time of removal or retention," Convention,
supra Article 13a at 1502. None of these exceptions have been
argued here.
-25-
affirmative defenses that should be narrowly construed. See
Nicolson, 605 F.3d at 105.
Here, the district court -- incorrectly using the terms
consent and acquiescence interchangeably -- found that Darín had
agreed to LAD remaining in the United States.18 It found that
Darín, by signing the Affidavit, "voluntarily and without
intimidation, threats or coercion" was agreeing that LAD could stay
in the United States for an indefinite period of time. According
to the district court, "[i]t is hard to think of a more formal
acquiescence or alternatively a waiver of Hague Convention rights
than voluntarily entering into an agreement signed before a Notary
Public as the one signed in this case." The court also found that
Darín had "consent[ed] to LAD's retention in the United States
because he "failed for five (5) months to make any meaningful
effort to obtain return of the minor child and failed to pay any
child support."
The evidence on record compels us to conclude that the
court got it wrong. We take the two defenses in turn.
18
The district court's analysis of the consent and
acquiescence issue is somewhat confusing in that, as we said, it is
intermingled with the court's determination of whether a wrongful
retention occurred at all. The court, after discussing both
consent and acquiescence in connection with its retention analysis,
then included a footnote at the end of the decision, which
indicated that "for the sake of the argument," even if Darín had
established a wrongful retention, the outcome would have been the
same because Olivero had proven the defenses of consent or
acquiescence.
-26-
A. Consent
Our determination of whether Darín consented to LAD
remaining in the United States must necessarily focus on his intent
before the child's mid-March 2011 retention. See Nicolson, 605
F.3d at 105 (citing Baxter, 423 F.3d at 371). "Consent may be
evinced by the petitioner's statements or conduct, which can be
rather informal." Id. What the petitioner actually contemplated
and agreed to, as well as the nature and scope of the petitioner's
consent -- including any conditions or limitations -- should be
taken into account. See Walker, 701 F.3d at 1122-23.
Right off the bat, we note that our consent inquiry
focuses on the time prior to the retention and therefore Darín's
signing of the Affidavit is out of play.19 Rather, we must focus
on the parties' conduct prior to mid-March 2011. There is little
Olivero can rely on to support a consent defense during this time
period.20 The only imaginable argument would be that Darín
consented to LAD's retention because he visited the United States
in January 2011 despite his knowledge of Olivero's previous intent
19
Even were we to assume that the district court's July
retention date was correct, and therefore the Affidavit should be
considered, we would still find that no consent was given. For the
same reasons that the Affidavit does not constitute an acquiescence
(detailed later), it does not constitute a grant of consent.
20
Olivero did not differentiate between the defenses of
consent and acquiescence in her argument to this court. Nor did
she distinguish between the pre-retention and post-retention time
periods. Therefore, it is difficult to precisely parse out what
her arguments were as to each defense.
-27-
to leave Argentina and settle in the United States. This argument
runs against a wall.
Although there is plenty of evidence that Olivero had
been looking into moving to the United States with LAD, the only
incident the record shows Darín to be aware of was Olivero's
attempt to remain with LAD in the United States in March of 2010.
According to both parties' testimony, however, they had moved on
from this disagreement. Olivero had returned to Argentina in April
2010 and had decided to stay there, ultimately reconciling with
Darín several months later.21 The decision to take the January 31,
2011 trip was made after the parties reconciled and moved back in
together. She had apologized for the incident, and he had forgiven
her.22 At this point in time, Darín was not aware of Olivero's
legal inquiries into relocating with LAD to the United States.
Darín testified that it was not until after March 2011 that he
found out that "during those seven months that she had been in
Argentina, she had started to ask around how she could escape from
Argentina."
21
According to Darín's testimony, by the end of January 2011,
"[the couple] decided to reconcile." Olivero admits she "stayed in
Argentina . . . [a]nd subsequently . . . tried to make better the
situation or . . . reconciliate."
22
Darín testified: "We were really happy, and our relationship
was very good, and she acknowledged to me that she had made a
mistake with what she had done. . . . [S]he was . . . my woman.
She was the mother of my child. And my boy was completely happy.
I was very happy. And so, as we say in Argentina, we just moved
on."
-28-
As we said above, the undisputed evidence shows that when
the parties left Argentina, their mutual intent was for a visit of
limited duration; they had a scheduled return date of March 2,
2011. It was not unreasonable for Darín to believe that the trip
was nothing more than a family vacation, and that they would return
together to Argentina just as they had multiple times before.
According to Darín's testimony, "[they] tried to travel as much as
[they] could so that [LAD] could share with his family . . . in
Puerto Rico, and also for [Olivero] to be able to share . . . with
her family." The fact that Darín agreed to go on this vacation is
not evidence of him consenting to their son relocating to the
United States.
In sum, the objective facts in the record point to one
conclusion only: Darín did not consent to LAD's retention in the
United States in mid-March 2011. Accordingly, Olivero has not made
the required preponderance-of-the-evidence showing and her consent
defense fails. The outcome of this case turns on whether Darín
subsequently acquiesced to the retention.
B. Acquiescence
Because the defense of acquiescence pertains only to what
happened post-retention, the relevant period for us to consider is
between mid-March 2011 and Darín's filing of the petition for
return on December 19, 2011. See Baxter, 423 F.3d at 371.
Acquiescence tends to require more formality than consent -- e.g.,
-29-
testimony in a judicial proceeding, a convincing written
renunciation of rights, or a consistent attitude over a significant
period of time. See id. While some cases present a situation
where there is a clear-cut, formal acquiescence -- such as a
consent order by a non-U.S. parent agreeing to let a state court
decide final custody -- many times, cases present circumstances
that are a little hazier. See Nicolson, 605 F.3d at 107. When
attempting to characterize ambiguous conduct as a basis for
inferred acquiescence, courts employ a pure subjective intent
inquiry. See id. Of course, the subjective intent refers to the
subjective intent of the parent who is claimed to have acquiesced.
See Baxter, 423 F.3d at 371.
Olivero's primary argument is that the Affidavit
evidences Darín's acquiescence to LAD remaining in the United
States. This is a dead end. Acquiescence to LAD's retention in
the United States cannot be found in the plain language of the
Affidavit, nor can the Affidavit be read to imply such. The
district court was mistaken in concluding it did.
A reading of the Affidavit reveals no mention in the
entire two-page document, express or implied, of establishing a new
residence in, or permanently relocating to, the United States. It
merely states that Darín "must leave the country against his will;"
that LAD "is not being abandoned by his father" and "will be under
the care and supervision of his mother . . . with his father's
-30-
absence;" that Olivero is authorized "to follow all the necessary
steps in order to benefit their child as regards to education,
health and all related to the minor's interests and well-being;"
and that LAD "is authorized to travel with either parent . . . to
any place in the world." The Affidavit is simply an agreement
between parents with joint custody to provide for the care and
well-being of their minor son during the forced absence of one
parent. It is but a legal instrument that authorizes Olivero to
make decisions for the child's welfare. Nothing more.
Also, the fact that the Affidavit contains open-ended
terms is not evidence that Darín acquiesced to LAD remaining
permanently in the United States. The district court placed too
much importance on the Affidavit's indefiniteness and read into it
a declaration of acceptance not supported by its language. While
it is true that the Affidavit does not contemplate a specific time
period for the duration of its effect, it is improper to transform
the absence of an end date into acquiescence. The mere fact that
the Affidavit does not have an expiration date does not necessarily
mean it was meant to be permanent; it could very well mean the
intended duration was unknown. And in fact, it would seem the
duration was unknown since Olivero did not indicate when, if ever,
she would return to Argentina -- a point she equivocated on once
Darín returned to Argentina. Furthermore, logically speaking, one
who executes a legal document with the intent of making permanent
-31-
a current state of affairs otherwise open to change, expresses as
much in it.
If anything, the Affidavit demonstrates Darín's desire to
be responsible and provide for his child when his own back was
against the wall. Moreover, even when we look beyond the
Affidavit's language and instead consider the parties' explanations
given at the hearing, we find no support for the district court's
conclusion. Both parties testified that they executed the
Affidavit so Olivero could take care of LAD while Darín was away.23
In light of the Affidavit's language and the parties' testimony as
to their reasons for its execution, the Affidavit simply cannot be
read as a declaration of acquiescence, much less unconditional
acquiescence, to the retention of the child in the United States.
We emphasize, the defense of acquiescence calls for definiteness
and clarity, i.e., a "clear and unequivocal expression of an
agreement" or "a convincing written renunciation of rights."
Nicolson, 605 F.3d at 108 (citation omitted) (internal quotation
marks omitted); see also Baxter, 423 F.3d at 371. The Affidavit
falls far short.
23
Olivero testified: "[The Affidavit] was prepared because
I wanted to have a document that I could use for our child's
education, health, travel, and other things." Darín testified that
he signed the Affidavit so Olivero could take care of LAD while he
was not with the child, so she could travel with his son to
Argentina after July 2011, and to make it clear that he was not
abandoning his child.
-32-
It appears the district court's reasoning may have been
influenced by its belief that the parties had equal bargaining
power at the time the Affidavit was executed and that Darín's
signing was completely voluntary and uncoerced. We cannot agree.
The record -- including, most importantly, testimony from both
sides -- reflects the opposite. The reason Darín signed the
Affidavit was because he had to. Darín needed to return to
Argentina: his travel visa was expiring; he had no work visa; he
had no job or income in Puerto Rico; and the $1,700 he and Olivero
had brought to Puerto Rico was depleted. In fact, it appears
Olivero's uncle purchased Darín's plane ticket home for him. The
circumstances were against Darín. He was faced with the choice of
either leaving his son behind or remaining in the United States
illegally, without a work permit and without legal representation.
Had Darín opted to overstay his visa, he could have been subject to
arrest and removal proceedings, which would have likewise separated
him from his son. We would hardly call Darín's signing of the
Affidavit under these circumstances voluntary or uncoerced. If
anything, Darín's situation is a lesson in duress.
Moreover, the Affidavit does not support the district
court's alternative finding that it functioned as a renunciation of
rights under the Convention. The district court attempts to
support this conclusion by citing to Journe v. Journe, 911 F. Supp.
43, 47-48 (D.P.R. 1995), a district court case that is not
-33-
applicable to the present set of facts. Journe addressed a
situation where a father voluntarily dismissed a custody action he
had filed in his home country of France before seeking relief under
the Convention in the United States. Id. at 48. The court
ultimately concluded that the father had waived any rights under
the Convention and ICARA by foregoing the opportunity to contest
custody in the French courts. Id.
The district court's reliance on Journe is misplaced: a
father's voluntary dismissal of a custody action instituted by him
in his own country is worlds away from a father signing a document,
drafted by the mother in her country, to provide for the education
and health care of his son due to the fact that he is forced to
return to his home country and leave that child behind. Unlike the
situation in Journe, Darín never had an opportunity to assert his
parental rights in front of a magistrate. He even testified that
when he sought help with his situation from the Argentine
consulate, he found out he would not be able to get free legal
representation because he was not an American citizen. In sum, the
Affidavit provides no support for Olivero's acquiescence defense.
We proceed to her other arguments.
Next, Olivero contends that Darín's acquiescence can be
inferred from some of his actions after he left Puerto Rico. She
first directs our attention to Darín's filing of the instant
petition for return in December 2011 -- a point the district court
-34-
also found significant. Olivero says this "delay" in filing is
inconsistent with Darín opposing LAD's relocation to the United
States. We are not convinced. That Darín took around five months
to file the petition after he was back in Argentina is not enough
to constitute acquiescence.24
First off, the fact that Darín officially filed on
December 19, 2011 does not mean he decided to pursue legal action
on that day. He must, it stands to reason, have had to inquire and
taken some steps prior to the actual physical filing of his
petition with the Argentina Central Authority. And, in fact, the
record shows Darín was looking at alternatives while in Argentina
before resorting to the remedy provided by the Convention. Darín
testified he was making the necessary inquiries during that time
and was holding out hope that Olivero would come around.25 He also
testified that he waited to file the petition because Olivero was
telling him "that she needed to think and that she was going to go
back [to Argentina]."26 It is not unreasonable for Darín to hope
24
It is undisputed that Darín arrived in Argentina on July 10,
2011 and filed the petition for return on December 19, 2011.
25
"I knew everything that this would entail at that time that
I was over there and I'm making my inquiries. And I learned that,
unfortunately, with this, [LAD] is going to lose in any way. And,
also, because I had the hope that [Olivero] would realize that what
she did was wrong."
26
"[A]nd, in addition to that, she told me that she needed
time to think, that [LAD] was going to come back with me -- and
those were her words, those were her sister's words, and those were
her mother's words."
-35-
Olivero would change her mind and return to Argentina with the
child. After all, she had done this before in March of 2010, and
some of her trips to Puerto Rico had lasted months, yet she always
went back to Argentina in the end. Additionally, according to the
letter dated December 23, 2011 from the Argentina Central Authority
to the U.S. Department of State's Office of Children's Issues,
Darín had been trying to convince Olivero to return to Argentina
with LAD since his own return there. The fact that the Argentina
Central Authority recognized Darín's efforts during this period in
official documentation does not weigh lightly on us.
Furthermore, the Convention itself allows for a petition
to be filed up to a year after the wrongful retention. See
Convention, supra Article 12 at 1502. And even when a petition is
filed after the one year period, there are instances where a
federal court may still order a child's return. See Yaman v.
Yaman, 730 F.3d 1, 13 (1st Cir. 2013) (finding Article 12's one-
year period did not operate as a statute of limitations). To say
that Darín acquiesced because he filed within the time prescribed
by the Convention is irrational. It would render the Convention's
one year provision pointless. As it stands, Darín had a full year
to file his petition, and he did file within that year. In this
particular instance, the passage of time between Darín's departure
from the United States and his filing of a timely petition for
return is not probative of acquiescence.
-36-
Olivero makes a related argument that Darín only filed
because LAD would not be going to Argentina for Christmas and
because she had filed for custody. But this argument actually
strengthens Darín's position that he did not acquiesce to his son
remaining in the United States. Assuming Darín was on notice of
Olivero's filing for custody in Puerto Rico, it is not unreasonable
to think that this caused him to believe that her expressed
intentions of staying on the island permanently, which in the past
had proved illusory, were real this time, prompting him to pursue
a legal course of action himself.
Olivero gets no more traction with her claim that Darín's
acquiescence is evidenced by his regular communications with their
son and their son's school, as well as the fact that Darín sent LAD
a care package with school clothes and toys. These things do
nothing more than show Darín's intention to be involved in his
child's life, which we note is consistent with his statement in the
Affidavit that he was not abandoning his son.
Olivero bore the burden of proving the affirmative
defense of acquiescence by a preponderance of the evidence. Having
carefully reviewed the entire record, we conclude that there is no
evidence from which a reasonable fact finder could plausibly infer
Darín acquiesced to his son remaining in the United States. Quite
to the contrary, the record shows Darín's position has remained the
same since being informed of Olivero's intentions to stay in the
-37-
United States in mid-March 2011: his son should return to
Argentina. Olivero has failed to establish the affirmative defense
of acquiescence.
VIII. LEGAL COSTS, ATTORNEY'S FEES AND TRAVEL EXPENSES
As a final matter, Darín seeks payment of his legal
costs, attorney's fees and travel expenses pursuant to Article 26
of the Convention and 42 U.S.C. § 11607. An award of necessary
expenses -- including legal fees and costs, as well as
transportation expenses related to the return of a child -- is
appropriate when a court orders the return of a child. 42 U.S.C.
§ 11607(b)(3). Nevertheless, the respondent in a return action has
the opportunity to show why an award of necessary expenses to a
prevailing petitioner would be clearly inappropriate. Id. ("Any
court ordering the return of a child pursuant to an action brought
under section 11603 of this title shall order the respondent to pay
necessary expenses incurred by or on behalf of the petitioner . .
. unless the respondent establishes that such order would be
clearly inappropriate."); see also Whallon, 356 F.3d at 140
(finding the respondent has the burden to establish that a fee or
expense order would be clearly inappropriate).
The district court did not address this matter, given its
finding that there was no wrongful retention. Accordingly, the
issue of whether Darín is entitled to court costs, attorney's fees
and transportation expenses, and if so, the amount to be awarded,
-38-
is remanded to the district court for consideration and
disposition.
IX. CONCLUSION
The district court erred in concluding there was no
wrongful retention in this case. There is no evidence in the
entire record to plausibly support the district court's finding
that the parties arrived at a mutual intent to change LAD's
habitual residence from Argentina to the United States. The record
is also devoid of any objective facts showing a change in habitual
residence. Argentina was LAD's habitual residence in mid-March
2011. Because Darín had custody rights over LAD and was exercising
those rights at the time of the retention, it follows that Darín
has established wrongful retention by a preponderance of the
evidence. Because Olivero did not introduce sufficient evidence to
establish Darín's consent or acquiescence to this retention, we
order the return of LAD to Argentina. Any further custody
proceedings must take place in the Argentine courts.
We do not make this decision lightly, especially because
there is a young boy involved. Olivero's argument that LAD had
already acclimatized to Puerto Rico when Darín filed his return
petition -- he had finished summer camp, concluded his first
semester of school and had developed strong ties with his maternal
-39-
family -- is extraneous to our analysis.27 We recognize that the
child has been living in Puerto Rico for three years now. However,
retaining the child in the United States against his father's
wishes was a decision Olivero made on her own. If we allow a
parent to unilaterally change a child's habitual residence simply
due to the passage of time, we would be encouraging the pursuit of
this illegal route to custody. To not order the child's return
would be to condone that which the Convention seeks to deter:
parents crossing international boundaries with their children in
order to avoid the jurisdiction of local courts whose rulings they
do not -- or believe they will not -- agree with. See Shealy v.
Shealy, 295 F.3d 1117, 1121 (10th Cir. 2002).
To be clear, the district court's conclusion that "the
Puerto Rico courts have jurisdiction to determine permanently the
best interests of the child and to rule on any controversies
between the parties regarding parental custody and visitation
rights" cannot stand. Our decision today voids this determination.
It is the Argentine courts that have jurisdiction. There is no
reason to believe an Argentine court will not make a custody
27
The so-called "now-settled" exception to the Convention's
requirement that a wrongfully retained child be returned to the
place of habitual residence applies in cases where the petition has
been filed more than a year following the unlawful retention. See
Yaman, 730 F.3d at 4 ("[Article 12's] one-year period . . . must
elapse before a parent can assert the 'now settled' defense.").
This is clearly not the situation at bar, where there is no issue
as to the petition being filed within a year of the wrongful
retention.
-40-
determination in a responsible manner. See Abbott, 560 U.S. at 20.
For the reasons stated above, we REVERSE the district
court's August 16, 2012 order, and ORDER the return of LAD to
Argentina. We reiterate that with this determination we are not
resolving the underlying issue of child custody. Olivero may
ultimately prevail in her quest to obtain full custody of LAD, but
this is a determination for the Argentine courts to make.
The issue of court costs, legal fees and transportation
expenses is REMANDED to the district court for a determination
consistent with this opinion.
-41-