United States Court of Appeals
For the First Circuit
No. 13-2531
FRANCELLY SÁNCHEZ-LONDOÑO,
Petitioner, Appellant,
v.
NELSON GONZÁLEZ,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor IV, U.S. District Judge]
Before
Torruella and Selya, Circuit Judges,
McAuliffe,* District Judge.
Peter J. Duffy, with whom Barry S. Pollack and Pollack Solomon
Duffy LLP, were on brief for appellant.
Stephen J. Cullen, with whom Kelly A. Powers, Miles &
Stockbridge P.C., Mary A. Azzarito, and Bruce & Kelley PC, were on
brief for appellee.
June 10, 2014
*
Of the District of New Hampshire, sitting by designation.
TORRUELLA, Circuit Judge. Petitioner-Appellant Francelly
Sánchez-Londoño (the "mother") appeals from the district court's
denial of her petition filed pursuant to 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 (the "Hague Convention"), as
implemented by the International Child Abduction Remedies Act, 42
U.S.C. § 11601 et seq. ("ICARA"). The mother claims that
Respondent-Appellee Nelson González (the "father") has wrongfully
retained their daughter, E.G., in the United States. She seeks an
order requiring the child's return to Colombia, where E.G. lived
with her mother for two-and-a-half years. The district court found
that no wrongful retention of E.G. occurred under the Hague
Convention because the United States was E.G.'s place of habitual
residence. After careful consideration, we affirm.
I. Background
A. Factual background
The mother is a citizen of Colombia who, in 2004, entered
the United States illegally. The father came to the United States
from the Dominican Republic and became a naturalized U.S. citizen
in April 2000. The two met while working at a home for the elderly
in Massachusetts, and they married on December 20, 2005.
In October 2006, the couple's daughter, E.G., was born in
Massachusetts. E.G. is a citizen of both the United States and
Colombia. After E.G. was born, the family lived together in
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Framingham, Massachusetts, for more than two years, but not without
incident. By the second year of their marriage, the parents began
having frequent arguments. In addition, the mother was stopped for
a traffic violation in 2008, prompting concerns that she would be
identified as an illegal immigrant and deported. The couple thus
agreed that the mother temporarily would move back to Colombia.
From there, they believed she would have a better chance of
obtaining legal residency in the United States. The mother also
looked forward to reuniting with her older daughter, C.A., from a
prior relationship. The parents agreed that the mother would take
E.G. back to Colombia with her, and that the mother, E.G., and C.A.
would all move to the United States once the mother obtained legal
status. The mother and E.G., who was two years old at the time,
moved to Colombia on December 7, 2008.
Both parents hoped that the time in Colombia would be
brief -- lasting approximately seven to nine months -- and that
mother and daughter would be able to return legally to the United
States in short order. Those hopes were not realized, however, and
what was intended to be a short stay in Colombia turned into a stay
of two-and-a-half years. During that time, E.G. lived with her
mother and grandmother, and she spent time with relatives, friends,
classmates, and members of her church. She spoke Spanish and
attended preschool in Colombia. The mother also registered E.G. as
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a Colombian citizen so that E.G. would have full rights and would
be able to leave Colombia without any problems.
While the mother and E.G. were living in Colombia, the
father visited once, for five days, in 2010. He never asked that
E.G. be sent to the United States to see him, but he did speak with
her several times a day via telephone and computer throughout the
time they were apart. The father also worked on petitions seeking
permission for the mother and C.A. to enter the United States
legally. He filed a petition for the mother in January 2009 and
for C.A. in December 2009.
Although C.A.'s petition was granted on December 30,
2010, the mother's petition was denied because she had previously
entered the United States illegally and therefore was excluded from
reentering for ten years. She applied for a waiver of the
exclusion, but on March 24, 2011, her application was denied. The
mother appealed the denial of waiver on April 27, 2011.
Meanwhile, time was running short for C.A. to travel to
the United States, as her entry visa was set to expire on June 29,
2011. Believing that the father would take good care of both girls
and that it would improve her chances of obtaining a waiver if both
of her daughters were living in the United States, the mother
agreed to let both C.A. and E.G. move to the United States. The
father returned to Colombia to pick up the girls, and he flew with
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them back to the United States on May 28, 2011. E.G. was
approximately four-and-a-half years old at the time.
Unbeknownst to the mother, however, the father had begun
a romantic relationship with another woman, Erin McShane
("McShane"), in 2010. Despite this relationship, and
notwithstanding the fact that the immigration attorney he consulted
provided no timeline for the granting of the mother's petition, the
father repeatedly told the mother that he expected her to return to
the United States within a matter of months.
When the father and girls arrived in the United States in
May 2011, they lived in the father's residence in Framingham,
Massachusetts. During the day while the father was at work, the
girls video conferenced with their mother and were sometimes cared
for by family friends from church. They were also introduced to
K.G., the father's seventeen-year-old daughter from a previous
marriage, and to McShane, whom they were told they should not
mention to their mother. Despite this instruction, by August or
September 2011, the mother began to suspect that the father was
having an affair. E.G. began attending daycare around this time,
and the mother periodically called the daycare to speak with E.G.'s
teachers.
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In December 2011, the father informed the mother that he
would be sending C.A. back to Colombia.1 The mother demanded that
he also return E.G., who was then five years old, but the father
refused. The mother's suspicions of an affair were confirmed when
she spoke with C.A. upon C.A.'s return to Colombia in February
2012.
According to the mother, the father cut off all
communication between her and E.G. from December 2011 until October
2013. He obtained a new phone number in February 2012, filed for
divorce on April 4, 2012, and in May of 2012, he moved from
Framingham to Quincy, Massachusetts, with E.G. and McShane. The
father did not inform the mother of the move or of their new
address, thereby interfering with her ability to communicate with
her daughter. When E.G. began kindergarten at a school in Quincy
in the fall of 2012, the father did not give the school the
mother's contact information.
On November 21, 2012, the Middlesex Probate and Family
Court granted the father's uncontested petition for divorce, giving
him sole legal and physical custody of E.G. The mother asserts
that she did not contest the divorce because she had no opportunity
1
According to the father, he sent C.A. back because C.A.'s
father, who lived in Spain, was pressuring him to do so. According
to the mother, the father sent C.A. back to Colombia only because
he found caring for her inconvenient. This dispute is not material
to the issues before us, and we need not choose between these
conflicting accounts.
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to do so. The father married McShane after the divorce, and on
January 2, 2013, the pair wrote an e-mail to the United States
Citizenship and Immigration Services ("USCIS") asking that the
mother's immigrant visa petition be terminated. The e-mail
explained that the parents had divorced and that the father no
longer supported the mother's request.2
B. Procedural background
In February 2012, the mother contacted the Colombia
Institute of Family Welfare ("ICBF"), Interpol, the Colombian
police, her town mayor, and the media in an effort to secure E.G.'s
return. On March 7, 2012, she filed a formal statement with ICBF,
and on June 27, 2012, she filed an official application under the
Hague Convention. She initiated the present action by filing an
emergency petition for E.G.'s return in the district court on
May 3, 2013. In that petition, the mother alleged that E.G. had
been wrongfully retained in the United States by her father since
May 2011, when he took E.G. from Colombia to the United States.
On November 18, 2013, after a four-day hearing, the
district court denied the mother's petition for E.G.'s return. The
court found that the date of E.G.'s retention was December 2011,
when the mother demanded E.G.'s return to Colombia and the father
refused. The district court also found that immediately prior to
2
Nevertheless, the mother received a letter from USCIS on
January 10, 2013, saying that it would act favorably on her waiver
application.
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December 2011, the shared intent and settled purpose of both
parties was that E.G. live in the United States, as neither parent
had intended that E.G. abandon her habitual residence there. While
the court found that E.G. had been acclimatized to Colombia by the
time that she left in May 2011, it also found that at the time of
her retention in December 2011, E.G. was acclimatized to the United
States. Thus, the district court concluded that E.G.'s habitual
residence was the United States at the time of her retention, and
that her retention was not wrongful under the Hague Convention.
This timely appeal followed.
II. Analysis
The crux of the mother's argument on appeal is that the
district court erred in determining that E.G.'s place of habitual
residence immediately prior to her retention was the United States
and not Colombia. Specifically, she contends that the district
court gave too little weight to evidence of E.G.'s acclimatization
in Colombia and too much weight to evidence that the mother hoped
she could one day live with E.G. in the United States.
Our review of the district court's factual findings is
deferential, and we will overturn a factual finding only if it
"'hit[s] 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.'" Darín v. Olivero-Huffman, 746 F.3d 1, 8-9 (1st
Cir. 2014) (quoting In re O'Donnell, 728 F.3d 41, 45 (1st Cir.
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2013)). The district court's interpretation and application of the
Hague Convention, on the other hand, we review de novo. Id. at 9.
As to findings of habitual residence, "we defer to the court's
findings of intent absent clear error, but we review the ultimate
determination of habitual residence -- a mixed question of fact and
law -- de novo." Neergaard-Colón v. Neergaard, No. 14-1278, 2014
WL 2111307, at *3 (1st Cir. May 21, 2004) (citing Darín, 746 F.3d
at 9).
A. The Hague Convention
The Hague Convention, as implemented by ICARA, provides
for "the prompt return of children wrongfully removed to or
retained in any Contracting State." Hague Convention, art. 1; see
also Abbott v. Abbott, 560 U.S. 1, 8 (2010) (discussing the purpose
of the Hague Convention). Article 3 of the Hague Convention
explains that the retention of a child is considered wrongful where
the retention is "in breach of rights of custody attributed to a
person . . . under the law of the State in which the child was
habitually resident immediately before the . . . retention" so long
as "at the time of . . . retention, those rights were actually
exercised . . . or would have been so exercised but for the . . .
retention." Hague Convention, art. 3. Accordingly, a petitioner
seeking to prove wrongful retention under the Hague Convention must
establish by a preponderance of the evidence that, at the time
immediately prior to the child's retention: (1) the child's
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habitual residence was the place to which the child's return is
being sought, (2) the petitioner had custody rights over the child,
and (3) the petitioner was exercising his or her custody rights.
Darín, 746 F.3d at 9.
If a petitioner meets his or her burden of establishing
that a child has been wrongfully retained as described in Article
3, and "a period of less than one year has elapsed from the date of
the wrongful . . . retention" to the commencement of judicial or
administrative proceedings, the court "shall order the return of
the child forthwith," Hague Convention, art. 12, unless the
respondent can establish that an enumerated exception applies, see
id. art. 13. If more than a year has elapsed, the court must still
"order the return of the child, unless it is demonstrated that the
child is now settled in its new environment." Id. art. 12.
In this case, the only factor in dispute is the first
factor: whether Colombia was E.G.'s habitual residence immediately
prior to her retention in the United States in December 2011.3
This factor is critical, because "[i]f the state in which a child
is retained was also the child's place of habitual residence
immediately prior to retention, that retention is not wrongful
under the Hague Convention." Neergaard-Colón, 2014 WL 2111307, at
*3 (citation omitted). Although the Hague Convention does not
define the term "habitual residence," this court has adopted an
3
On appeal, the parties do not dispute the date of retention.
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approach that "begins with the parents' shared intent or settled
purpose regarding their child's residence." Nicolson v.
Pappalardo, 605 F.3d 100, 103-04 (1st Cir. 2010). As a secondary
factor, "evidence of a child's acclimatization to his or her place
of residence may also be relevant." Neergaard-Colón, 2014 WL
2111307, at *2.
B. The parents' shared intent or settled purpose
We begin our analysis with the critical issue of shared
intent. Because young children like E.G. "lack[] both the material
and psychological means to decide where [they] will reside," our
inquiry focuses on the shared intent or settled purpose of the
parents, who are entitled to determine the child's place of
habitual residence. Darín, 746 F.3d at 11. Specifically, we must
determine the intent of the parents "at the latest time that their
intent was shared," Mota v. Castillo, 692 F.3d 108, 114 (2d Cir.
2012) (internal quotation marks and citation omitted), recognizing
that the unilateral "wishes of one parent alone are not sufficient
to change a child's habitual residence." Neergaard-Colón, 2014 WL
2111307, at * 3.
Additionally, we must take care to distinguish "between
the abandonment of a prior habitual residence and the acquisition
of a new one." Id. at *4 (internal quotation marks and citation
omitted). "A person cannot acquire a new habitual residence
without forming a settled intention to abandon the one left behind.
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Otherwise, one is not habitually residing; one is away for a
temporary absence of long or short duration." Id. (internal
quotation marks and citation omitted).
In this case, the district court noted the parties'
disagreement as to the existence of a shared intent or settled
purpose regarding E.G.'s habitual residence prior to her retention
in December 2011. On the one hand, the mother claimed that it was
her intention that E.G. be with her wherever she lived, while on
the other, the father asserted that the parties had always intended
for E.G. to return to her habitual residence in the United States.
After reviewing the parties' contentions and all available
evidence, the district court determined that it was the shared
intent and settled purpose of the parties that E.G. live in the
United States, and that they did not intend to abandon their
habitual residence in the United States in favor of Colombia.
The mother takes issue with this finding of shared intent
for a number of reasons. She first argues that the district court
erred in determining that the parties did not intend to abandon
their habitual residence in the United States. While acknowledging
that both parents initially intended that E.G.'s stay in Colombia
be temporary, the mother points out that the requisite shared
intent or settled purpose to abandon habitual residence in the
United States need not have existed at the time of departure, "as
it could develop during the course of a stay originally intended to
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be temporary." Ruiz v. Tenorio, 392 F.3d 1247, 1252 (11th Cir.
2004) (per curiam).
The mother is certainly correct that the parents need not
have intended that E.G. habitually reside in Colombia at the time
they departed the United States, but this does her no favors. Even
if the mother changed her mind about the nature of E.G.'s time in
Colombia at some point while they lived there, "[o]ne parent's
wishes are not sufficient, by themselves, to effect a change in a
child's habitual residence." Darín, 746 F.3d at 11. Moreover,
nothing in the record suggests that the mother ever intended that
E.G.'s time in Colombia be anything but temporary prior to the date
of the child's retention. Accordingly, the mother's challenge to
the district court's finding that "[n]either party evidenced an
intent to abandon the United States as E.G.'s residence" falls
flat.
The mother next argues that the district court confused
her future hope that the family would live together in the United
States with a present, shared intention that E.G. live in the
United States regardless of whether her mother could follow. She
claims that although the district court cited Mota, it erred by
failing to appreciate that Mota's analysis of conditional intent
applied. We disagree.
In Mota, the Second Circuit held that the district
court's finding -- that the mother intended for her daughter to
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live in the United States only if the mother were able to join her
-- was not clearly erroneous. 692 F.3d at 114-15. The mother in
Mota "testified that she never intended that [her daughter] would
live permanently in the United States, and that she had only helped
smuggle [her daughter] across the . . . border to allow her father
to visit with her for a few hours." Id. at 115. Here, however,
the mother's testimony was of a different nature entirely.
Specifically, the mother testified that she never discussed the
possibility of the father moving to Colombia, that both parties
agreed in 2011 that E.G. should be in the United States, and that
she agreed that the father could raise E.G. in the United States.
There is thus ample record support for the district court's factual
finding that "[t]here was no condition, agreed or otherwise, that
E.G. would return to Colombia if [the mother] could not gain
admission into the United States." Both parties intended for the
separation of daughter and mother to end with the mother's return
to the United States, not with E.G.'s return to Colombia.
By way of rejoinder, the mother asserts that any intent
she may have had that E.G. habitually reside in the United States
was undermined by the father's deceit. She points to both the
father's misrepresentation that it would only take three months to
obtain legal entry into the United States and to his secret
relationship with McShane, arguing that the district court failed
to address how such "false pretenses" affected E.G.'s travel to the
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United States. The district court, however, expressly considered
and rejected this claim, finding that the father's behavior "does
not change the fact that both parties believed E.G. should live in
the United States." It further noted that the parents' settled
intent was for E.G. to live in the United States even before the
father's alleged wrongdoing, and that "the record does not support
the conclusion that [the father] so dominated [the mother] through
force or coercion that she did not intend E.G. to live in the
United States." Cf. In re Ponath, 829 F.Supp. 363, 367-68 (D. Utah
1993) (holding that where the father coerced the mother to stay
abroad "by means of verbal, emotional and physical abuse," the
mother's intent and settled purpose to remain abroad were
undermined).
A careful review of the record reveals that the district
court's finding is not clearly erroneous. The mother testified
under oath that she would still move to the United States to be
with E.G. if allowed entry, and she did not request that the father
return E.G. to Colombia until December 2011. By that time, nearly
seven months had passed without any change in the mother's
immigration status, and roughly four months had passed since she
first suspected that her husband was engaged in an extramarital
affair. Neither realization prompted her to request E.G.'s return
prior to the father's announcement that he was sending back C.A. in
December 2011.
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In the absence of clear error, we must defer to a
district court's finding of intent, meaning that the "district
court's plausible interpretation of the facts cannot be rejected
just because the record might sustain a conflicting
interpretation." Darín, 746 F.3d at 8 (citing In re O'Donnell, 728
F.3d at 45). Finding no error -- clear or otherwise -- in the
district court's reasoning and review of the record, we are
compelled to uphold its factual finding that the parties' shared
intent was that E.G. habitually reside in the United States.
C. Acclimatization
In addition to shared parental intent, factors evidencing
a child's acclimatization to a given place -- like a change in
geography combined with the passage of an appreciable period of
time -- may influence our habitual-residence analysis. Typically,
"[e]vidence of acclimatization is not enough to establish a child's
habitual residence in a new country when contrary parental intent
exists." Id. at 12. Nevertheless, it may be possible for a child
to obtain a new habitual residence without such shared intent in
certain limited circumstances. "'[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.'" Id. at 11-12
(quoting Mozes v. Mozes, 239 F.3d 1067, 1081 (9th Cir. 2001)); id.
at 12 n.14 ("[A] child's life may become so firmly embedded in [a]
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new country as to make it habitually resident even though there be
lingering parental intentions to the contrary." (internal quotation
marks and citation omitted)).
In this case, the district court recognized that after
more than two years in Colombia, E.G. had acclimatized to that
country by the time she left it in May 2011. Noting that the date
of retention was December 2011, however, the district court
concluded that by that time, E.G. was once again acclimatized to
the United States. E.G. had spent time with her father and half-
sisters in Massachusetts, she went on trips to the park and to the
swimming pool with a family friend from church, and she had been
attending daycare in Massachusetts for nearly four months. Thus,
the district court concluded that E.G.'s return to the United
States and her acclimatization there, coupled with the parents'
shared intent that E.G. live permanently in the United States,
established that the United States was E.G.'s habitual residence at
the time immediately prior to her retention.
The mother cites these findings as proof of error,
arguing that given the evidence of E.G.'s acclimatization, the
district court should have found that Colombia became E.G.'s place
of habitual residence. Such a finding was critical, she adds,
because "in the absence of settled parental intent, courts should
be slow to infer . . . that an earlier habitual residence has been
abandoned," Mozes, 239 F.3d at 1079. Thus, she argues that had the
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district court properly found that Colombia was E.G.'s habitual
residence in May 2011, it should have been slow to find that her
habitual residence in Colombia had been abandoned in favor of the
United States by December 2011.
This argument not only misses the mark, it actually cuts
against the mother's position. True, a district court should be
"slow to infer" that an earlier habitual residence has been
abandoned in favor of a new one, in the absence of shared parental
intent. But that is precisely the approach taken by the district
court in this case. In the absence of shared parental intent to
abandon habitual residence in the United States, the district court
was -- quite correctly -- slow to infer that E.G.'s earlier
habitual residence in the United States had been abandoned.
In sum, the district court found, and the record
supports, that then-five-year-old E.G. had acclimatized to life in
the United States by December 2011. This fact, coupled with the
finding of shared parental intent that E.G. live permanently in the
United States, shows that E.G.'s habitual residence immediately
prior to her retention was the United States. Accordingly, E.G.'s
retention in her place of habitual residence was not wrongful under
the Hague Convention, and the district court properly denied the
mother's petition for the return of E.G. to Colombia.4
4
Having determined that the United States was E.G.'s habitual
residence such that no wrongful retention occurred, we need go no
further. See Redmond v. Redmond, 724 F.3d 729, 742 (7th Cir. 2013)
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III. Conclusion
For the foregoing reasons, we hold that the district
court did not err in determining that E.G.'s habitual residence was
the United States and that no wrongful retention occurred. We
therefore affirm the district court's denial of the mother's
petition.
To be clear, the denial of the mother's petition in no
way alters the preexisting custody rights of the parents. See
Hague Convention, art. 19 ("A decision under this Convention
concerning the return of the child shall not be taken to be a
determination on the merits of any custody issue."). Rather, the
decision of the district court that we today affirm merely ensures
that the courts of E.G.'s place of habitual residence will be able
to determine the best interests of the child.
AFFIRMED.
("If a child has not been moved from its habitual residence . . .
relief under the Hague Convention must be denied without further
inquiry . . . ."). Accordingly, we will not address the mother's
argument that because she met her burden of showing wrongful
retention, the district court erred by failing to analyze whether
the father met his burden of proof as to an affirmative defense
that E.G. was well-settled in the United States.
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