Mendez v. May

United States Court of Appeals
For the First Circuit

No. 15-1126

FEDERICO MENDEZ,

Petitioner, Appellee,

v.

MAYA K. MAY,

Respondent, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Leo T. Sorokin, U.S. District Judge]

Before

Lynch, Chief Judge,
Souter, Associate Justice,*
and Stahl, Circuit Judge.

David H. Chen, with whom John A. Sten and McDermott Will &
Emery LLP were on brief, for appellant.
Amber R. Cohen, with whom Cohen Cleary, P.C. was on brief, for
appellee.

February 13, 2015

*
Hon. David H. Souter, Associate Justice (ret.) of the
Supreme Court of the United States, sitting by designation.
 STAHL, Circuit Judge. Petitioner-Appellee Federico

Mendez filed a petition pursuant to the Hague Convention on the

Civil Aspects of Child Abduction ("the Convention"), as implemented

by the International Child Abduction Remedies Act, 22 U.S.C. § 9001

et seq., to return his seven-year-old son C.F.F.M. to Argentina.

Petitioner claims that Respondent-Appellant Maya K. May, the

child's mother, wrongfully removed the child to the United States

in February 2014. After a three-day bench trial, the district

court granted the father's petition and ordered the child's return,

reasoning that, inter alia, C.F.F.M.'s habitual residence lay in

Argentina because Petitioner never fully agreed to allow C.F.F.M.

to move to the United States. We disagree, and reverse the

district court's grant of the petition and order returning the

child to Argentina.

I. Background

Petitioner is a citizen of Argentina who resides in

Buenos Aires. Respondent is a U.S. citizen and permanent resident

of Argentina. The two began dating in 2005 and lived in the U.S.

for a brief period of time before settling in Buenos Aires in 2006.

Respondent gave birth to their child, C.F.F.M., in Buenos Aires on

December 3, 2007. C.F.F.M. is a citizen of both Argentina and the

United States. He attended school in Buenos Aires from 2010

through the end of the Argentine school year in December 2013.

Though Petitioner and Respondent never married, the

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family lived together until 2009, when the couple's romantic

relationship deteriorated and Petitioner moved out.1 That summer,

the parties reached a child custody agreement which provided that

C.F.F.M. would reside with his mother and granted the father

visitation from Thursday evenings until Sunday nights. Per the

2009 agreement, Respondent could travel outside Argentina with

C.F.F.M. for fifteen days in the Argentine winter and up to

forty-five days during the Argentine summer; the agreement required

Petitioner to authorize Respondent's travel with C.F.F.M. in

accordance with that plan. Respondent took C.F.F.M. on multiple

trips to the United States in accordance with this plan.

The parties experienced difficulties in their parenting

relationship after they ceased cohabiting. In 2011, they argued

outside Respondent's apartment the day she returned from a

forty-five day trip to the United States with C.F.F.M. Although he

was not entitled to visitation that day, Petitioner asked to see

the child, and Respondent told him it was not a good time.

Petitioner forced his way into her apartment and pushed her to the

ground in the process. Later that year, the two engaged in a

yelling match in C.F.F.M.'s presence during a car ride. Petitioner

called Respondent "trash" and locked her out of the car, driving

away with the child. After that argument, Respondent denied

1
C.F.F.M. and Petitioner have not resided together since
Petitioner moved out of the family residence in 2009.

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Petitioner visitation for four months. Petitioner sought judicial

intervention and the Argentine family court restored his visitation

rights. Additionally, the parties filed domestic violence

complaints against each other. After an investigation, an

Argentine board issued a report finding that Respondent was the

victim of Petitioner's physical and psychological violence and that

C.F.F.M. was a victim insofar as he witnessed the fight in the car.

In December 2012, the parties negotiated and executed a

new coparenting agreement. Respondent retained custody and the

agreement reduced Petitioner's visitation. The 2012 agreement

permitted Respondent to travel abroad with the child for up to

forty-five days each year; Petitioner would execute trip-specific

authorization each time.

In spring 2013, Respondent began to consider leaving

Argentina to find work elsewhere. She discussed her interest in

moving with Petitioner, who opposed her leaving Argentina with

C.F.F.M. The district court found that Respondent had "raised such

an interest" before and that "the parties had various discussions

prior to this time about [Respondent] relocating out of the

country." The parties were unable to come to an agreement, even

after mediation in July 2013.

The next month, Respondent accepted a job offer in Boston

with a September 2013 start date. The parties discussed her

upcoming move shortly after she accepted the job offer. During an

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August 13, 2013 Skype conversation, Respondent urged Petitioner to

pursue work or educational opportunities in Boston. Petitioner

expressed openness to potentially moving to Massachusetts along

with Respondent and C.F.F.M., but the parties reached no agreement

during the conversation.

The two met in person three times in August and September

2013 to discuss potential arrangements if C.F.F.M. were to relocate

to the United States. During the third meeting, Petitioner agreed

to allow C.F.F.M. to move to Massachusetts with Respondent.

Respondent proposed that C.F.F.M. could travel back to Argentina

during U.S. school vacations and agreed to increase Petitioner's

visitation time in anticipation of the move. The same day, the two

relayed these plans to C.F.F.M.

In accordance with their discussions, Respondent left

Argentina to begin her job in mid-September 2013. C.F.F.M.

remained in Argentina in the care of Respondent's mother, and

Petitioner assumed the agreed-upon increased visitation schedule.

The parties corresponded by email after her departure to discuss a

new coparenting agreement and to set an exact date for C.F.F.M.'s

move. Petitioner preferred a January 2014 move so that the child

could complete his school year in Argentina; Respondent wanted him

to move before the December holidays so that he could spend time

with her family before beginning school in Boston. Petitioner

objected to the December departure, reasoning that Respondent's

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family could see C.F.F.M. any time now that the child was moving to

the United States, but confirmed a January 8, 2014 move date.

In their correspondence, Respondent expressed frustration

that even though the two had agreed that C.F.F.M. should move to

the United States and Respondent had relocated to Boston with that

decision in place, Petitioner had yet to draft or sign a new

coparenting agreement. After an acrimonious Skype exchange on

October 23, 2013, Respondent emailed Petitioner and asserted that

she would invoke her forty-five days per year vacation time in

order to allow C.F.F.M. to leave for Boston in early December.

After that email, the parties' communication broke down.

Petitioner initiated multiple court proceedings, including an

emergency petition to obtain temporary custody of C.F.F.M. and

criminal complaints against Respondent and her mother. The

district court found that Petitioner included numerous unfounded

statements about Respondent in these filings, which stated, among

other falsehoods, that she had "abandoned" C.F.F.M. and left for

the United States "without any notice" to Petitioner. Respondent

returned to Argentina in late November and again in late December

to attend court proceedings. At a hearing on Petitioner's criminal

complaints, a criminal court judge reduced Petitioner's visitation

and prohibited him from having overnight visits with C.F.F.M.

Respondent returned to Boston and then came back to

Argentina on February 9, 2014. The family court judge held a

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hearing the next day to address Petitioner's temporary custody

proceeding and Respondent's filing to obtain travel authorization

for C.F.F.M. to visit the U.S. for forty-five days, pursuant to the

parties' 2012 agreement. The judge ordered the parties to confer

and resolve the latter issue; shortly after the hearing, they

informed the judge that they were unable to agree on a resolution.

On February 14, the judge issued a decision denying Respondent's

request for travel authorization, reasoning that the evidence

presented to him indicated "an environment of disagreements and

hostilities between [the parties]" which would make a trip

disfavorable to C.F.F.M.

That same day, Respondent left Argentina with her mother

and C.F.F.M. The district court found that Respondent knew of the

Argentine family court's order denying her travel authorization

before she left Buenos Aires that day. She drove to a border town

near Brazil and Paraguay, and on February 15, made three trips into

Brazil and Paraguay in search of an airport where C.F.F.M. could

travel to the United States without scrutiny of his visa. On

February 16, 2014, Respondent and C.F.F.M. flew out of Paraguay to

the United States. Respondent did not inform Petitioner that she

had left Argentina; he discovered that C.F.F.M. was no longer in

the country when the child did not attend his first week of school

in March. Petitioner found Respondent's work phone number and

repeatedly called her office. She confirmed that C.F.F.M. was in

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Boston under her care. Soon after, Respondent obtained an abuse

prevention order against Petitioner from the Suffolk County Probate

and Family Court.

Petitioner notified the Argentine family court judge that

Respondent had left the country and filed a criminal complaint for

child abduction with the Argentine police. On April 11, Petitioner

filed for Hague Convention remedies with a central authority in

Argentina. On July 15, the Argentine family court judge issued an

opinion finding that Respondent wrongfully removed C.F.F.M. under

the Hague Convention and that C.F.F.M.'s habitual residence at the

time of removal was Argentina.

C.F.F.M. and Respondent have lived in Roslindale,

Massachusetts since February 2014. C.F.F.M. attends a Boston

public school. Respondent presented expert testimony and a report

to the district court from a child psychologist who interviewed

C.F.F.M.; the psychologist wrote in his report that the child

"spoke adamantly and specifically about not wanting to return to

Argentina." The expert opined in his report that removal to

Argentina would "sever[] . . . the bonded relationships" with

Respondent, her fiancé, and her mother and thus "expose him to

psychological harm."

Petitioner filed this action in the district court on

October 6, 2014. The court heard three days of evidence in

December 2014, and issued its order granting the petition and

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ordering the child's return on January 16, 2015. This expedited

appeal followed.

II. Analysis

A. The Hague Convention

The Hague Convention on the Civil Aspects of

International Child Abduction is a multilateral agreement among

approximately ninety countries, including the United States,

intended to combat international child abductions during domestic

disputes. Abbott v. Abbott, 560 U.S. 1, 8 (2010). The Convention

seeks to enforce custody rights and "'secure the prompt return of

children wrongfully removed to or retained in any Contracting

State.'" Chafin v. Chafin, 133 S. Ct. 1017, 1021 (2013) (quoting

Hague Convention, art. 1). The Convention's underlying principle

is that the courts of a child's country of habitual residence

should be the entities to make custody determinations in the

child's best interest. E.g., Lozano v. Montoya Alvarez, 134 S. Ct.

1224, 1228–29 (2014); Mauvais v. Herisse, 772 F.3d 6, 10–11 (1st

Cir. 2014).

A petitioner seeking the return of a child under the

Convention must establish the child's wrongful removal by a

preponderance of the evidence. 22 U.S.C. § 9003(e)(1)(A);

Sánchez-Londoño v. Gonzalez, 752 F.3d 533, 539 (1st Cir. 2014).

The petitioner must show that he or she (1) seeks to return the

child to the child's country of habitual residence, (2) had custody

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rights immediately prior to the child's removal, and (3) was

exercising those rights. Hague Convention, art. 3;

Sánchez-Londoño, 752 F.3d at 539–40. If these three elements are

met, and the petitioner has commenced judicial or administrative

proceedings within one year of the date of wrongful removal, the

Convention commands that the court reviewing the petition "shall

order the return of the child forthwith." Hague Convention, art.

12. The respondent may counter the presumption of return by

establishing the application of one or more of the exceptions or

defenses to return enumerated in Articles 12, 13, and 20 of the

Convention. 22 U.S.C. § 9003(e)(2); Chafin, 133 S. Ct. at 1021.

"Notably, an order of return pursuant to the Hague Convention is

not a final determination of custody rights. It simply ensures

that custodial decisions will be made by the courts of the

children's country of habitual residence." Neergard-Colón v.

Neergard, 752 F.3d 526, 530 (1st Cir. 2014).

On appeal, Respondent disputes that Petitioner

established his custody rights prior to removal or that Argentina

was C.F.F.M.'s country of habitual residence. She argues that even

if Petitioner established a presumption of removal, he consented to

the child's relocation to Massachusetts, satisfying the exception

to return described in Article 13(a) of the Convention.

We review the district court's findings of fact for clear

error, mindful that any "plausible interpretation of the facts

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cannot be rejected just because the record might sustain a

conflicting interpretation." Darin v. Olivero-Huffman, 746 F.3d 1,

8 (1st Cir. 2014). Interpretations of the Convention and the

application of the Convention to the facts are afforded de novo

review. Yaman v. Yaman, 730 F.3d 1, 10 (1st Cir. 2013).

B. Habitual Residence

We begin and end with the question of C.F.F.M.'s habitual

residence at the time of removal. See Redmond v. Redmond, 724 F.3d

729, 742 (7th Cir. 2013) ("[E]very Hague Convention petition turns

on the threshold determination of the child's habitual residence;

all other Hague determinations flow from that decision."); Tsai-Yi

Yang v. Fu-Chiang Tsui, 499 F.3d 259, 271 (3d Cir. 2007) (same).

Removal under the Hague Convention is only appropriate if

the child is being retained in a country other than his or her

place of habitual residence. Sánchez-Londoño, 752 F.3d at 540.

The Convention itself does not define "habitual residence," leaving

the interpretation of the term to the judicial and administrative

bodies of signatory nations. See Nicolson v. Pappalardo, 605 F.3d

100, 103–04 (1st Cir. 2010); Redmond, 724 F.3d at 742–43; Mozes v.

Mozes, 239 F.3d 1067, 1071–72 (9th Cir. 2001). In determining a

child's habitual residence, this circuit looks first to the shared

intent or settled purpose of the persons entitled to determine the

child's permanent home; as a secondary factor, we may consider the

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child's acclimatization to his or her current place of residence.2

Sánchez-Londoño, 752 F.3d at 540, 542. Typically, evidence of

acclimatization alone cannot establish a child's habitual residence

in the face of shared parental intent to the contrary.

Neergard-Colón, 752 F.3d at 532.

The question of habitual residence is a highly fact-

specific inquiry that turns on the particular circumstances of each

unique case. In discerning the parties' intentions, this court

will look "specifically to the last moment of the parents' shared

intent." Mauvais, 772 F.3d at 12. Where a child has moved with a

parent from one country to another, the record must evidence the

parties' latest settled intention for the child to abandon a former

place of habitual residence and acquire a new one. Darin, 746 F.3d

at 11. In other words, the court "'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. (citing Mozes, 239 F.3d at 1076).

The district court's ultimate determination of habitual residence

is a mixed question of law and fact reviewed de novo, with

2
This circuit's framework accords with the approach of the
majority of our sister circuits, though other circuits differ in
the weight given to the parents' intent versus the child's
perspective on his or her settled place of residence. See
generally Redmond v. Redmond, 724 F.3d 729, 744–46 (7th Cir.
2013) (citing and describing cases).

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subsidiary findings of the parties' intent reviewed for clear

error. Neergard-Colón, 752 F.3d at 530.

As the district court found in its opinion, during a

meeting at a Buenos Aires restaurant in early September 2013,

Petitioner agreed to let C.F.F.M. move to Boston after the close of

the child's school year in Argentina. The same day, the parties

together told their son that he would move to Massachusetts with

Respondent. Nevertheless, the district court found that Petitioner

and Respondent "came close to forming . . . a shared intent, [but]

did not actually do so."

This finding constitutes clear error. The record is

replete with Petitioner's own statements acknowledging and planning

for the child's upcoming move, particularly during September and

October of 2013, after Respondent moved to Boston and before the

parties' relations broke down and Petitioner initiated civil and

criminal proceedings against Respondent and her mother. For

example, on September 30, 2013, in response to Respondent's request

for C.F.F.M. to fly to the United States that December, Petitioner

wrote in an email, "I would prefer if you can wait until he moves

to you by the end of the year. . . . I really do not see the point

of him going there when it would be just two or three weeks before

he moves there." On October 10, Petitioner suggested that

Respondent meet him and C.F.F.M. in Miami in January 2014 and then

take the child back to Boston, since Petitioner and his family had

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planned to be in Florida for a family trip that month. After

Respondent suggested that Petitioner and C.F.F.M. meet her in New

York to celebrate the New Year, Petitioner said he would check with

his family but stated, "For now, what is sure is January the 8th."

Even during a tense Skype exchange on October 23, 2013, Petitioner

expressed his understanding that C.F.F.M. would permanently move to

the United States at the turn of the new year. Respondent renewed

her request for C.F.F.M. to move before January 8, 2014, alluding

to her family's holiday celebration in New York; Petitioner

responded that "[C.F.F.M.] will be in the us [sic] in january

[sic]" and that Respondent's family "will have plenty of time [to

spend with the child] know [sic] that [C.F.F.M.] is going to be in

the us [sic] living there." After this Skype exchange, Respondent

emailed Petitioner and stated that she would invoke her forty-five

day travel authorization in order to take C.F.F.M. with her to

Boston on December 4, 2014, triggering the breakdown in the

parties' communications.

Even though Petitioner changed his mind and decided that

he did not want C.F.F.M. to move to Boston, the record establishes

that the last shared intent of the parties was for their son to

relocate permanently with his mother soon after C.F.F.M. finished

the Argentine school year in December 2013. The "unilateral wishes

of one parent are not sufficient" to overcome the last settled

purpose of the parents. Sánchez-Londoño, 752 F.3d at 540 (internal

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quotation marks omitted). Indeed, in Re Bates, a United Kingdom

decision considered a leading case on habitual residence, the

parents' intention for the child to live in New York for a set

period of time governed even where the parents made the decision

while touring the Pacific Northwest, and had borrowed a New York

apartment for later that spring only on a temporary basis. Re

Bates, No. CA 122/89, High Court of Justice, Family Div. Ct. Royal

Courts of Justice, United Kingdom (1989), available at 1989 WL

1683783. The mother brought the child from the West Coast to New

York while the father, an Englishman, continued on to Asia. A few

days later, the father telephoned his daughter's nanny and told her

to take the child to London, where the father owned a house. The

mother filed a petition under the Hague Convention in the British

courts immediately after she discovered that the child and nanny

were gone. The British court found the child habitually resident

in New York, reasoning that the "arrangements that had been agreed,

however acrimoniously" by the parties "amounted to a purpose with

a sufficient degree of continuity to enable it properly to be

described as settled," though at the time the parents made the

decision the child had only briefly visited New York before. Here,

the district court erroneously reasoned that Petitioner never

signed a written agreement memorializing the parties' new parenting

plan, and refused to issue a travel authorization permitting

C.F.F.M. to leave Argentina. But the parties did not make their

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joint decision for C.F.F.M. to move to the United States contingent

on signing an official instrument; like in Re Bates, the parties

verbally agreed to the plan. While in some circumstances, written

evidence of a parties' agreement may inform a court's decision-

making, we reject the idea that such formal documentation is

required to establish the settled intention of the parties.

Additionally, the district court misapplied the governing

law of this circuit when it held that a change in habitual

residence "requires an actual 'change in geography,'" citing a case

from the Ninth Circuit. See Mozes, 239 F.3d at 1078 ("While the

decision to alter a child's habitual residence depends on the

settled intention of the parents, they cannot accomplish this

transformation by wishful thinking alone. First, it requires an

actual 'change in geography.'") (quoting Friedrich v. Friedrich,

983 F.2d 1396, 1402 (6th Cir. 1993)). This circuit has never added

such a requirement in the context of the habitual residence test.

To the contrary, we have explicitly described a change in the

child's geography as but one "consideration[] for the court" and

"one factor in our [habitual residence] analysis," not as a full-

fledged prerequisite. Darin, 746 F.3d at 12–13; see also Mauvais,

772 F.3d at 14 ("'[F]actors 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.'") (emphasis added) (quoting

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Sánchez-Londoño, 752 F.3d at 542). To be sure, there may be

situations in which an actual change in the child's geography

factors heavily in the habitual residence analysis. Lest there be

confusion, a child's presence in a new country of habitual

residence is not required to effectuate his parents' settled

intention to abandon his old place of residence and acquire a new

one. A contrary requirement would incentivize a feuding parent to

move his or her child immediately upon the formation of an

agreement even if, as here, it would be better for the child to

finish out a school year or wait until the parent has settled the

family's living situation before the child joins her.

Finding clear error in the district court's factual

findings concerning the parties' intent, and errors of law in the

district court's application of the Convention to the facts of this

case, we hold that the United States was the child's habitual

residence at the time of removal based on his parents' mutual and

settled agreement to move him there.3 No actual change in the

3
We do not discuss the question of C.F.F.M's acclimatization
to the United States, as neither the district court nor the parties
addressed the issue. In any event, acclimatization is "rarely, if
ever, a significant factor when children are very young,"
Neergard-Colón v. Neergard, 752 F.3d 526, 533 (1st Cir. 2014), and
courts typically inquire into evidence of acclimatization when the
party opposing return avers that the child's life is so firmly
embedded in his or her new country that acclimatization should
overcome the parties' past shared intent for the child to live
elsewhere, Mauvais v. Herisse, 772 F.3d 6, 14 (1st Cir. 2014). We
do note, however, that Respondent submitted a report, dated
December 5, 2014, from a child psychologist who had met with and
observed C.F.F.M. and had spoken with his caretakers and teacher.

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child's geography is required to effectuate that last shared

intent, nor must the parties' intent be memorialized in a written

document. Mindful that the question of parents' shared intent "is

not a uniformly applicable 'test' for determining habitual

residence," we caution that our holding rests of the particular

facts of this case. Cf. Redmond, 724 F.3d at 732, 744, 747

(holding that despite parents' initial agreement to raise their

baby in Ireland, the U.S.-born child's habitual residence was

Illinois given that respondent had sole custody under Irish law at

the time she brought him back to the United States and child's life

was "firmly rooted" in Illinois at time of petition; "shared intent

has less salience when only one parent has the legal right [to fix

the child's place of residence]").

After review of the record, we conclude that Petitioner

did not prove that he seeks to return C.F.F.M. to the child's

country of habitual residence, one of the three elements of a prima

facie case of wrongful removal. Because Petitioner did not meet

his burden to establish a presumption of wrongful removal, we will

not reach other arguments raised by the parties, including the

The psychologist opined in his report that C.F.F.M. is
"reciprocally bonded" to Respondent, her fiancé, and her mother;
that the child's "anxiety and fearfulness in the school setting
have largely abated" since his arrival in Boston; and that "there
is a grave risk that [the child's] return to Argentina would expose
him to psychological harm."

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affirmative defense of consent. Cf. Sánchez-Londoño, 752 F.3d at

543 n.4 (citing Redmond, 724 F.3d at 742).

III. Conclusion

In reviewing Hague Convention petitions, courts must

grapple with difficult factual circumstances in which no outcome

may appear ideal. We emphasize that our decision today is not the

final word on the parties' ongoing custody dispute; rather, it puts

the onus on the requisite Massachusetts court to resolve future

questions of custody and access rights. Nor should this opinion be

taken as an endorsement of Respondent's actions in February 2014.

Because the district court erred in its habitual residence

analysis, we reverse both the grant of the father's petition and

the order of return to Argentina.

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