Benitez v. Hernandez

          OPINION

          KEVIN MCNULTY. U.S.D.J.

         J.G.A. Guillermo Albornoz Benitez ("Mr. Albornoz, " sometimes referred to in the evidence as "Guillermo") brings this proceeding against his wife, Kristhel Angelica Diaz Hernandez ("Ms. Diaz, " sometimes referred to in the evidence as "Kristhel"), under the Hague Convention on the Civil Aspects of International Child Abduction (the "Hague Convention") and the International Child Abduction Remedies Act ("ICARA"), 42 U.S.C. § 11601 et seq. Their daughter, "T.A.A., " was born in 2006, and is now 11 years old; their son, "J.G.A., " was born in 2008 and is now 9 years old. Mr. Albornoz alleges that on June 18, 2015, Ms. Diaz removed the children from Ecuador without his consent, and is wrongfully retaining them in the United States. Mr. Albornoz requests that the children be returned to Ecuador.

         This court has jurisdiction pursuant to 42 U.S.C. § 11603(b) and 28 U.S.C. § 1331. Venue is proper because Ms. Diaz and the children currently reside in New Jersey.

         As in prior removal cases, I find it helpful to begin by stating explicitly some of the things this case is not. It is not a divorce proceeding; it is not a child custody determination; it is not a judgment of which is the more fit parent; it is not a debate over the relative merits of two countries as an environment for rearing children. The Hague Convention and ICRA have a far narrower focus: to restore the status quo where there has been a wrongful removal, and permit any rulings on divorce and custody to be made in the proper jurisdiction.

         Having reviewed the parties' submissions and conducted an evidentiary hearing, I hold that the removal was not wrongful, and for the reasons set forth below, the Petition is DENIED.

         I. LEGAL FRAMEWORK OF THE HAGUE CONVENTION

         The two main purposes of the Hague Convention are "to ensure the prompt return of children to the State of their habitual residence when they have been wrongfully removed" 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." Hague Convention, Preamble, Art. 1. The Hague Convention's procedures are not designed to settle international custody disputes. Karkkainen v. Kovalchuk, 445 F.3d 280, 287 (3d Cir. 2006). Rather, the Hague Convention is designed to restore the status quo ante any wrongful removal or retention, and to deter parents from engaging in international forum shopping in custody cases. Baxter v. Baxter, 423 F.3d 363, 367 (3d Cir. 2005).

         The Hague Convention reflects a universal concern about the harm done to children by parental kidnapping and a strong desire among the Contracting States to implement an effective deterrent to such behavior. Hague Convention, Preamble. Both the United States and Ecuador are signatory nations. The United States Congress established procedures to implement the Hague Convention through ICARA, 42 U.S.C. § 11601 et seq., expressly recognizing its "international character" and the "need for uniform international interpretation" of its provisions. 42 U.S.C. § 11601(b)(2), (3)(B).

         Any person seeking the return of a child in the United States may commence a civil action under the Hague Convention by filing a petition in a court of the jurisdiction in which the child is located. 42 U.S.C. § 11603(b). To obtain an order for the child's return under the Hague Convention, the petitioner bears the burden of proving by a preponderance of the evidence that the removal or retention was wrongful under Article 3. 42 U.S.C. § 11603(e)(1)(A).

         Under Article 3 of the Hague Convention, the removal or retention of a child is "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.

Hague Convention, art. 3. See also Feder v. Evans-Feder, 63 F.3d 217, 221 (3d Cir. 1995).

         The Hague Convention does not define "habitual residence." The perspective is child-centered, but that perspective takes on a different meaning in accordance with the age and maturity of the child. The U.S. Court of Appeals for the Third Circuit considers whether the child has become acclimatized, i.e., whether the relocation has a settled purpose from the child's perspective, and whether there is shared parental intent to change residence. Id. at 224. Critical to the analysis is the "child's experience in and contacts with his surroundings, focusing on whether he 'develop[ed] a certain routine and acquire[d] a sense of environmental normalcy' by 'form[ing] meaningful connections with the people and places [he] encountered' in a country prior to the retention date." Karkkainen, 445 F.3d at 292 (quoting Evans-Feder, 63 F.3d at 550-51). The Third Circuit considers parental intent as it colors the child's perspective, but also gives parental intent "independent weight." Id. For a very young child, the parents' intentions are dispositive. As the child grows older, however, the child's own connections to the particular country take on much greater significance. See Whiting v. Krassner, 391 F.3d 540, 551 (3d Cir. 2004) (parents' shared intent given dispositive weight as to habitual residence of 18-month-old child); Feder v. Evans-Feder, 63 F.3d at 222 (giving greater weight to evidence of acclimatization of 4-year-old boy); Karkkainen, 445 F.3d at 293-97 (giving great weight to intent of independent 11-year-old, where parents had agreed to let her choose her activities and country of residence).

         In summary, to state a prima facie case in a proceeding under the Hague Convention for the return of a child wrongfully removed to or retained in another State, the petitioner must establish by a preponderance of the evidence that: (1) the child was habitually resident in one State and was removed to a different State; (2) the removal was in breach of the petitioner's custody rights under the law of the State of habitual residence; and (3) the petitioner was exercising those rights at the time of removal. Karkkainen, 445 F.3d at 287; Baxter, 423 F.3d at 368. For the reasons stated herein, this case focuses on the second element: whether Diaz's removal of the children to the U.S. was wrongful in that it breached Albornoz's custody rights, or whether it was done in furtherance of the couple's mutual agreement to carry on living in the United States.

         II. PROCEDURAL HISTORY^[1]

         On March 30, 2016, the Ecuadoran Ministerio de Inclusion Economica y Social ("MIES") forwarded to the U.S. Department of State, Office of Children's Issues, a Request for Return of Children filed by Mr. Albornoz. (ECF no. 1-1) That Request for Return, dated March 22, 2016, alleged that on June 18, 2015, Ms. Diaz had taken the children from Ecuador to the United States without Mr. Albornoz's consent.

         That Request for Return became the foundation of the Verified Petition filed in this case on February 10, 2017. The Verified Petition alleges that the children were taken without consent, in violation of Ecuadorian law. It calls upon this court to order their return to Ecuador under the Hague Convention and the ICRA.

         That same day, I entered an order directing a written response to the Verified Petition on or before March 2, 2017. (ECF no. 3) On March 1, 2017, Ms. Diaz did file her Answer. (ECF no. 4) I also scheduled a telephone conference for March 6, 2017.

         At the conference, I set the matter down for an evidentiary hearing on April 7, 2017. I directed the parties to submit declarations in lieu of direct testimony, and to make the declarants available for cross-examination at the hearing. I permitted the parties to supplement the declarations, however, with direct or redirect testimony.

         Mr. Albornoz relied on his Verified Petition, with attached exhibits, in lieu of a separate declaration. Ms. Diaz submitted declarations of herself; Maria R. Suarez (also referred to in the record as "Rocio"); Catalina Sinning; Yamile Pardo; and Joselinne Arias. (See note 1, supra.) At the hearing, all of the declarants, including Mr. Albornoz and Ms. Diaz, testified.^[2] Each witness swore to the truth of the contents of his or her declaration, and I permitted cross- examination and redirect examination. Numerous exhibits were received in evidence as well.

         At the end of the hearing, I reserved decision. I gave counsel until close of business on Monday, April 10, 2017, to state whether they wished to submit post-hearing briefs. Counsel have not responded. Briefing is thus complete, and the record is closed.

         III. DISCUSSION

         Many Hague Convention cases focus on the issue of habitual residence, and thus involve extensive evidence, factual and psychological, regarding the acclimatization of the children to living in one country or the other. This is not such a case. The children did not testify, and the parties presented only limited evidence regarding their acclimatization to Ecuador.

         The issue here, as presented by the parties, focuses on the second element of a Hague Convention claim: whether Ms. Diaz's removal of the children from Ecuador to the U.S. violated Mr. Albornoz's custody rights. As both parties see it, it was the parties' agreement, or not, to return to the U.S. to live that rendered Diaz's removal of the children either permissible or wrongful.^[3]

         A. The Factual Disputes

         This case therefore depends substantially on the resolution of one key issue:

(a) Did Ms. Diaz wrongfully remove the children from Ecuador in June 2015 and retain them in the U.S. without Mr. Albornoz's consent?

Or, alternatively,

(b) Did the couple agree that the family was to return to the U.S. permanently?

         Underlying that key issue are several subsidiary factual disputes.

         One set of disputed facts concerns the family's departure for Ecuador in July 2014. According to Diaz, Albornoz promised her that they were not relocating, but would return to the U.S. after he set up a business there. According to Albornoz, the move was intended to be permanent.

         A second set of disputed facts surrounds the return of Diaz and the children to the U.S. in June 2015. According to Diaz, Albornoz agreed that the family would permanently return to the United States, and he planned to rejoin them in New Jersey later, after selling off business equipment. According to Albornoz, Diaz and the children traveled to the U.S. only for a summer vacation, and were supposed to rejoin him in Ecuador.

         I resolve the key factual disputes largely in Ms. Diaz's favor. Based on the totality of the evidence, I conclude that Diaz did not act wrongfully in returning to and remaining in New Jersey with the children. I find that she did so pursuant to the couple's agreement to resume their life here after a time in Ecuador. Mr. Albornoz abandoned that agreement only later, in connection with the dissolution of the marriage. That he did so is understandable, but his change of heart did not retroactively render Diaz's conduct wrongful.

         1. Credibility factors

         In the course of the hearing, I had the opportunity to observe the demeanor of the witnesses and assess their credibility. In doing so, I considered such usual factors as the witnesses' apparent ability to recall; their general affect and demeanor; the apparent influence of bias or interest in shaping the narrative; the inherent plausibility of the accounts; and the extent to which their testimony fit with other evidence. I have carefully reviewed all exhibits, but have cited only those that appeared particularly important; many merely confirmed testimony that was not substantially in dispute. To the extent that any facts were not directly pertinent to the issues but necessary to an understanding of the parties' actions and motives, I have recited them here for that limited purpose.

         Generally speaking, I made allowances on both sides for the expedited nature of the proceedings and the limited time to prepare. The Verified Petition, for example, did not focus on certain factual issues, particularly those surrounding whether the parties agreed to live permanently in Ecuador or to return permanently to the United States. I did not penalize Albornoz for failing to anticipate all such issues. Rather, I permitted both Albornoz and Diaz, when testifying live, to supplement the facts contained in their written submissions. The other witnesses did so to a lesser extent, and for the same reasons I permitted it. Counsel used the absence of certain facts from the declarations to impeach certain witnesses; this was permissible cross examination, and I considered it, but under the circumstances, I did not give it great weight.

         One witness, Yamile Pardo, a close friend since 2011, ran a clothing boutique. She met Diaz through Albornoz, who filmed a short video for her store. She described Diaz as "sad"; said Diaz was manipulated by her husband; and expressed disapproval that Diaz was not allowed to work, had no money of her own, and exercised no decision making authority. (YPD ¶¶ 2-3) Pardo said she had no dislike for Albornoz personally, but did not like his treatment of Diaz. She acknowledged that she opposed the move to Ecuador. She was aware that Albornoz considered her a "bad influence" on Diaz and discouraged the friendship; she and Diaz, when talking on the telephone, would use a code word to signal that Albornoz was nearby. On the witness stand, Pardo impressed me as intelligent, sincere, and observant. Her recollection was detailed. It was clear of course that she was very much on Diaz's side and ...