United States District Court, D. New Jersey
J.G.A. GUILLERMO ALBORNOZ BENITEZ, Ecuador, Petitioner,
KRISTHEL ANGELICA DIAZ HERNANDEZ, Respondent.
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.
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.
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
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
LEGAL FRAMEWORK OF THE HAGUE CONVENTION
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).
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).
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).
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
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).
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).
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.
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.
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.
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.
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.
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. 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.
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
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
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.
The Factual Disputes
case therefore depends substantially on the resolution of one
(a) Did Ms. Diaz wrongfully remove the children from Ecuador
in June 2015 and retain them in the U.S. without Mr.
(b) Did the couple agree that the family was to return to the
that key issue are several subsidiary factual disputes.
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.
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
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.
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.
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
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