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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-16568
Non-Argument Calendar
________________________
D.C. Docket No. 0:16-cv-62134-BB
MARIA ALEJANDRA REYES OVALLE,
Plaintiff - Appellee,
versus
NOE MANUEL PEREZ,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 1, 2017)
Before MARCUS, JILL PRYOR and FAY, Circuit Judges.
PER CURIAM:
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Maria Alejandra Reyes Ovalle (“Reyes”), a Guatemalan citizen, has
petitioned for relief under the Hague Convention on the Civil Aspects of
International Child Abduction, 51 Fed. Reg. 10,494 (March 26, 1986), and its
implementing legislation, the International Child Abduction Remedies Act
(“ICARA”), 22 U.S.C. § 9003(b) (together, “Hague Convention”). She alleged
that her child’s father, Noe Manuel Perez, an American citizen, abducted the child
and wrongfully retained him in Florida. After a bench trial, the district court
granted Reyes’s petition. Perez has appealed. After careful review, we affirm.
I. FACTUAL BACKGROUND
The facts of this case are described in detail in the district court’s order; we
recite here only what is necessary to resolve this appeal.
Perez, a United States citizen and resident of Florida, met Reyes in
Guatemala, and the two began a romantic relationship. Perez traveled to
Guatemala frequently, in part to spend time with Reyes. When Perez visited
Guatemala, he stayed at Reyes’s parents’ house. When the relationship became
more serious, Reyes obtained a tourist visa, valid for ten years, which permitted
her to stay in the United States for up to six months at a time.
In March 2015, Perez visited Reyes in Guatemala to attend a friend’s
wedding. During this visit, Reyes became pregnant with E.L. Reyes spent the
bulk of her pregnancy in Guatemala. Both Reyes and Perez expressed a desire to
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raise their child in a traditional two-parent household, and so, in June 2015, Reyes
traveled to the United States to stay with Perez. The parties dispute the purpose of
this trip: Reyes testified that she was merely testing the waters to see what life in
Florida with Perez would be like; Perez testified that it was their mutual intention
to raise their child together in Florida. Reyes left the overwhelming bulk of her
personal belongings in Guatemala—including her seven pets. Reyes also owned
an auto repair shop in Guatemala, which she did not sell, instead arranging for her
mother to manage it in her absence.
Reyes testified that this trial period went poorly, as Perez paid little attention
to her and did not seem to care about her pregnancy-related discomfort or other
health issues. Perez did not take her to see a doctor or help her to navigate the
American health care system. Reyes returned to Guatemala a little over a month
after arriving in Florida. She had no intent to return to Florida, noting that her time
with Perez had been unpleasant. Nevertheless, Perez persistently attempted to
persuade her to return to Florida, visiting Guatemala in August 2015.
On this trip to Guatemala, Perez gave Reyes an engagement ring. Reyes
testified that she rejected the ring; Perez testified that Reyes enthusiastically
accepted his proposal. Nonetheless, Reyes agreed to give Florida another chance.
Perez returned to Guatemala in late September 2015 to bring Reyes back to
Florida. Reyes testified that Perez again presented her with an engagement ring,
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which she accepted but never wore. In early October, Perez and Reyes returned to
Florida. Once more, the great bulk of Reyes’s possessions, including her pets,
remained in Guatemala. Reyes received an offer to purchase her business, but she
turned it down in part because she was uncertain that her relationship with Perez in
Florida would work. Reyes also had a house under construction in Guatemala at
the time, and she did not turn off utilities at the house; indeed, she continued to pay
her utility bills even though she was in Florida. She again entered the United
States on a tourist visa. According to Reyes, she never told Perez that she was
coming to Florida permanently; rather, she told him that she was merely coming to
try Florida again. Perez disagreed, testifying it was his understanding that Reyes
was coming to Florida to stay and that they both intended to raise a family in
Florida.
E.L. was born in Florida in December 2015. According to Reyes, the
relationship between Perez and Reyes was deteriorating. Perez disputed this,
testifying that their time in Florida was happy. In February 2016, when E.L. was
first able to travel, Reyes, Perez, and E.L. took a trip to Guatemala. Because
Perez’s relationship with Reyes’s parents had been strained, Reyes and Perez
stayed in separate places during the trip. Reyes stayed with E.L.—and held E.L.’s
passport—while Perez stayed with a friend. Reyes testified that upon their arrival
in Guatemala, Perez’s friend approached Reyes’s mother and advised her that
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Reyes should hold on to E.L.’s documents, as the friend was aware that Perez
intended to take E.L. back to the United States.
While in Guatemala, Reyes met with an immigration attorney who advised
her that because she had spent almost five months in the United States on a tourist
visa—and because she had given birth to a child during that period—she risked
being denied entry to the United States again. The attorney also advised her that
because Perez and E.L. were American citizens, Perez would be able to enter the
United States with E.L. Reyes subsequently applied for and obtained “Security
Measures”—essentially, a restraining order against Perez—in Guatemala, claiming
that she was “a victim of abuse, psychological, economic, moral and mental
violence, threats, indignities and the most important he is threatening me that he
will take my son [a]way because he has American nationality.” Reyes did not
inform Perez about the Security Measures, but did tell him that she and E.L. would
not be returning to the United States.
Perez returned to Florida and obtained an “Order to Pick-Up Minor Child”
from the Broward County Circuit Court. Perez did not inform Reyes about the
order. After finding out about the Guatemalan Security Measures, Perez filed a
response in opposition to them. Despite the parties’ legal gymnastics, Perez and
Reyes continued to communicate with one another. Perez periodically sent money
to Reyes to support E.L., and he visited Guatemala on three separate occasions
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between April and June 2016. In Guatemala, E.L. lived with Reyes and her
parents and brother, regularly attended church with them, and regularly saw a
pediatrician.
On a fourth visit to Guatemala in July 2016—for E.L.’s baptism—Perez
devised a scheme to remove E.L. to the United States. Perez asked Reyes to
accompany him to drop off an invitation to the baptism at a friend’s house. E.L.
was with Perez and Reyes when they went to drop off the invitation. Perez asked
Reyes to take the invitation to the front door, and when she got out of the car,
Perez drove off with E.L. He then drove back to the United States through
Mexico. After arriving, Perez informed Reyes that he was in the United States
with E.L., who was safe.
On September 7, 2016, Reyes filed a verified petition in federal district court
requesting relief under the Hague Convention, seeking the return of the child to
Guatemala. The following day, the district court issued a show cause order and set
an evidentiary hearing for September 16. Two days before the hearing, Perez filed
a response to the petition and show-cause order. Then, at the evidentiary hearing,
Perez requested a continuance of at least one week. The district court granted a
continuance to September 21. On September 21, the district court began a four day
bench trial.
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After the trial, the district court entered an order granting Reyes’s petition
and requiring E.L.’s immediate return to his mother. This is Perez’s appeal.
II. STANDARD OF REVIEW
In deciding an appeal under the Hague Convention, “[w]e review a district
court’s findings of fact for clear error and its legal conclusions and applications of
the law to the facts de novo.” Gomez v. Fuenmayor, 812 F.3d 1005, 1007 (11th
Cir. 2016). “The clearly erroneous standard is highly deferential and requires that
we uphold the district court’s factual determinations so long as they are plausible
in light of the record viewed in its entirety.” Id. at 1007-08 (internal quotation
marks omitted). Determining a child’s habitual residence presents a mixed
question of fact and law, so the district court’s findings of historical facts are
reviewed for clear error, “but with regard to the ultimate issue of habitual
residence, the appellate court will review de novo.” Seaman v. Peterson, 766 F.3d
1252, 1258 (11th Cir. 2014) (internal quotation marks omitted).
III. DISCUSSION
The Hague Convention is designed “to protect children internationally from
the harmful effects of their wrongful removal or retention and to establish
procedures to ensure their prompt return to the State of their habitual residence.”
Hanley v. Roy, 485 F.3d 641, 644 (11th Cir. 2007) (internal quotation marks
omitted). Under the Hague Convention, if a petitioner demonstrates that a child
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was removed wrongfully from the country of his habitual residence, the district
court must order the child returned. 1 See id. Therefore, in order to prevail, Reyes
had to prove that: (1) the child was “habitually resident” in Guatemala at the time
Perez removed him to the United States; (2) the removal was in breach of Reyes’s
custody rights under Guatemalan law; and (3) Reyes was exercising those rights at
the time of removal. See Ruiz v. Tenorio, 392 F.3d 1247, 1251 (11th Cir. 2004).
Although the Hague Convention lacks a definition for “habitual residence,”
“[c]ourts have been instructed to interpret the expression according to the ordinary
and natural meaning of the two words it contains” and decide a child’s habitual
residence “by reference to all the circumstances of a particular case.” Id. at 1252
(internal quotation marks omitted). Although generally an infant’s habitual
residence can be discerned based on the parents’ shared intent, where “the parents’
relationship has broken down” through a “conflict [that] is contemporaneous with
the birth of the child, no habitual residence may ever come into existence” based
on the parties’ shared intent. Delvoye v. Lee, 329 F.3d 330, 333 (3d Cir. 2003).
In its order granting Reyes’s petition, the district court concluded that Reyes
and Perez never shared an intent to reside in Florida or Guatemala and that the
child’s only habitual residence was in Guatemala with his mother. The district
court further found that Perez’s removal of E.L. was in breach of Reyes’s custody
1
This rule is subject to a number of affirmative defenses, none of which Perez argues
applies here.
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rights under Guatemalan law, which rights Reyes was exercising at the time of
E.L.’s wrongful removal. Thus, the district court ruled, the Hague Convention
required that E.L. be returned to Reyes.
Perez challenges the first and second Hague Convention elements. As to the
first element, he asserts that the district court erred in determining that the parents
had never formed a shared intent to live in Florida such that the child’s habitual
residence was Guatemala. As to the second element, Perez contends the district
court’s conclusion that Reyes had custody of E.L. under Guatemalan law was
erroneous because it was based on a flawed affidavit from Reyes’s Guatemalan
attorney. Finally, Perez argues the district court violated his right to due process
by denying him a fair opportunity to be heard at a meaningful time and in a
meaningful manner. We address these arguments in turn.
A. The district court did not err in determining that E.L.’s habitual
residence was Guatemala.
Perez mounts two challenges to the district court’s conclusion that E.L.’s
habitual residence was Guatemala. First, Perez asserts that the district court
overlooked evidence that he and Reyes shared an intent to reside in Florida,
thereby making Florida the child’s habitual residence. 2 Second, Perez asserts that
2
Perez relatedly contends that the district court erred as a matter of law in concluding
that E.L. had no habitual residence for the first two months of his life, arguing that if Guatemala
was not the child’s habitual residence at that time, Florida necessarily was. There is no support
in the Hague Convention or our case law for the proposition that an infant must have an
identifiable habitual residence from the time of birth. Indeed, as the Third Circuit has explained,
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he never consented to the child living in Guatemala, so Guatemala could not have
been the child’s habitual residence. We reject both of these arguments.
We cannot agree that the district court erred in determining that Reyes never
formed an intent to reside in Florida. The parties’ testimony was in conflict with
regard to Reyes’s intentions when she moved to Florida. The district court
resolved the conflict in favor of Reyes—finding that she had no settled intent to
raise E.L. in Florida—and we see no clear error in that finding. The district court
found that although Perez and Reyes had discussed marriage, they never
announced an engagement. Crucial to the court’s finding was the fact that Reyes
was in Florida on a tourist visa that only permitted her to stay in the country for six
months at a time. Aside from one meeting with an immigration attorney, neither
Reyes nor Perez took any steps to change Reyes’s immigration status. In concert
with her temporary immigration status, Reyes left virtually all of her possessions—
including her pets—in Guatemala, and she made no plans to sell or close her
business there. The evidence showed that Reyes only remained in Florida after the
birth of E.L. because her midwife advised her to wait to ensure E.L.’s health, and
she had to wait for E.L.’s passport to issue. In short, ample evidence—much of it
an infant may indefinitely lack a habitual residence if the parents’ relationship breaks down
“contemporaneous with the birth of the child.” Delvoye, 329 F.3d at 333.
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undisputed—supported the district court’s finding that Reyes had no intent to raise
E.L. in Florida; the district court’s findings were not clearly erroneous.
With respect to the district court’s conclusion that Florida was not E.L.’s
habitual residence, Ruiz is on point. There, the court found that the parents had no
settled intent to reside in Mexico where the “numerous objective facts” indicated
that the mother’s “intent with respect to the move to Mexico was clearly
conditional.” Ruiz, 392 F.3d at 1254. The mother “retained bank accounts and
credit cards in the United States; [] had her American mail forwarded to an
American address and not to Mexico; and [] moved her nursing license to Florida
shortly after [] mov[ing] to Mexico.” Id. Reyes’s behavior here creates an equally
strong—if not stronger—inference that there was no settled intent to raise E.L. in
Florida. Like the mother in Ruiz, Reyes’s actions demonstrate that she moved to
Florida for “a trial period,” and nothing more. Id; see also Chafin v. Chafin, 742
F.3d 934, 939 (11th Cir. 2013) (affirming the district court’s conclusion that the
United States was not the child’s habitual residence where the mother “came to the
United States in February, 2010 on a ninety-day visitor visa that is only issued with
proof of a return ticket” and “maintained her residence in Scotland and did not
cancel [the child’s] planned enrollment in Scottish school when she came to
Alabama”).
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Moreover, this case contrasts starkly with situations where we have found a
settled intent to reside in a particular location. For example, in Seaman, we
affirmed the district court’s finding that the parties had a settled intent to raise their
child in Mexico where they “sold their possessions in Georgia and took up their
own dwelling in Mexico,” “enrolled the children in Mexican schools when they
reached the appropriate age,” “were absent from the United States from a
residential standpoint for more than four years, returning to the United States only
a few times for visits of limited duration,” and “established legal, temporary
residence in Mexico.” Seaman, 766 F.3d at 1258. Despite the duration of the
parties’ residency in Mexico and the fact that they sold their possessions in
Georgia, we nevertheless noted that Seaman was a “close and difficult case.” Id. at
1261. Here, by contrast, Reyes stayed only briefly in the United States after the
E.L.’s birth, and her possessions and business remained in Guatemala. To the
extent Seaman was a close call, in this case it is clear: the parties had no settled
intent to raise E.L. in Florida.3
The cases Perez cites do nothing to alter this conclusion. Perez first cites to
a passage from Mozes v. Mozes, 239 F.3d 1067, 1077 (9th Cir. 2001), noting that
courts are “generally unwilling to let one parent’s alleged reservations about the
3
On appeal, Perez argues only that the parties’ shared intent established E.L.’s habitual
residence in Florida. He does not argue that E.L.’s acclimatization or contacts in Florida during
his brief time there established Florida as E.L.’s habitual residence.
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move stand in the way of finding a shared and settled purpose.” But Mozes
explicitly qualified this language, limiting it to circumstances where “a family has
jointly taken all the steps associated with abandoning habitual residence in one
country to take it up in another.” Id. Here, the district court’s finding that Reyes
did not take “all the steps associated with abandoning” her residence in Guatemala
was well supported by evidence. Equally unhelpful to Perez is Feder v. Evans-
Feder, 63 F.3d 217 (3d Cir. 1995), in which the court held that Australia was the
child’s habitual residence where the parents “purchased and renovated a house,
pursued interests and employment, and arranged for [the child’s] immediate and
long-term schooling” in Australia, notwithstanding the mother’s reservations. Id.
at 224. Reyes took no similar steps in Florida.
The district court also properly found—and Reyes does not contest—that the
parties had no settled intent to raise E.L. in Guatemala. Therefore, the question is
whether the district court properly found that E.L. became habitually resident in
Guatemala before Perez removed E.L. to Florida. We conclude that it did. We are
persuaded by the district court’s reliance on Kijowska v. Haines, 463 F.3d 583 (7th
Cir. 2006), which featured a similar fact pattern. There, shortly after the child’s
birth in the United States, the mother removed the child to Poland. Id. at 586. The
father then obtained an ex parte custody order from an Illinois state court. Id.
When the mother returned to the United States attempting to reconcile with the
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father, the father falsely informed an immigration officer that the mother intended
to overstay her visa. Id. The officer let the father take the child, forcing the
mother to return to Poland. Id. In determining the child’s habitual residence, the
Seventh Circuit explained that the father had circumvented available legal
remedies by wrongfully abducting the child:
Suppose that [the child’s] habitual residence when her mother took
her to Poland in December 2004 was the United States and that [the
mother’s] removal of her was wrongful. [The father’s] remedy would
have been to file a petition under the Hague Convention and its
implementing federal statute. He did not do that. He merely sought a
custody order from an Illinois state court and then used that order to
help obtain the self-help remedy of taking the child from the airport.
To give a legal advantage to an abductor who has a perfectly good
legal remedy in lieu of abduction yet failed to pursue it would be
contrary to the Hague Convention’s goal of discouraging abductions
by denying to the abductor any legal advantage from the abduction.
By failing to pursue his legal remedy, [the father] enabled [the child]
to obtain a habitual residence in the country to which her mother took
her, even if the initial taking was wrongful.
Id. at 588–89.
So too here. Perez voluntarily left Guatemala after he was informed that
neither Reyes nor E.L. would return to the United States. Instead of following the
procedures outlined by the Hague Convention, Perez initiated a custody proceeding
in the United States, received a favorable outcome, and engaged in self-help by
returning to Guatemala and abducting E.L. 4 As in Kijowska, Perez’s failure to
4
Even had E.L. been in Florida, the Pick Up Order that Perez received from a Florida
state court permitted law enforcement—not Perez himself—to bring E.L. to Perez.
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“pursue his legal remedy” under the Hague Convention weighs in favor of finding
that E.L’s habitual residence was in Guatemala.
The district court also properly considered E.L.’s settlement in Guatemala in
determining that it was E.L.’s habitual residence. “Where a child is born while his
. . . mother is temporarily present in a country other than that of her habitual
residence it does seem, however, that the child will normally have no habitual
residence until living in a country on a footing of some stability.” Delvoye, 329
F.3d at 334 (alteration in original) (internal quotation marks omitted). “[T]he
Convention is concerned with the situation where the child is taken out of the
family and social environment in which its life has developed.” Holder v. Holder,
392 F.3d 1009, 1019 (9th Cir. 2004) (internal quotation marks omitted).5 Here, the
district court properly relied on a number of factors in determining that E.L. was
living in Guatemala with some stability, including the facts that E.L. was: living in
a house with his mother, grandparents, and uncle, with whom he was bonding;
regularly seen by a pediatrician in Guatemala; to be baptized in Guatemala; and
5
Holder concerned children who had a previous habitual residence. 392 F.3d at 1014-15.
The question was whether children became sufficiently acclimatized in a new country such that
the new country displaced the original country as the children’s habitual residence. Id. In such
circumstances, we have held that “courts should be slow to infer from [contacts in the new
location] that an earlier habitual residence has been abandoned.” Ruiz, 392 F.3d at 1253-54
(internal quotation marks omitted). In this case, because we conclude that Florida was never
E.L.’s habitual residence, the scales are not tipped in favor of Perez, as they would be had we
determined otherwise.
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regularly attending church with Reyes and her family. Moreover, Perez repeatedly
sent money to Guatemala to support E.L. and visited the child in Guatemala
multiple times prior to the abduction. 6 Were any greater quantum of contacts with
a particular location required to establish an initial habitual residence, parents
could freely engage in a continuous game of abduction ping pong, given the many
months or even years in which they could freely abduct the child before any
particular location became the child’s habitual residence. This is contrary to the
purposes of the Hague Convention. We therefore conclude, as did the district
court, that at the time E.L. was abducted, his habitual residence was in Guatemala.
B. The district court did not err in determining that Reyes had custodial
rights over E.L. under Guatemalan law.
Perez next argues that the district court erred in determining that Reyes had
custody rights under Guatemalan law. He quibbles with the district court’s failure
to view “more skeptically” the affidavit of Reyes’s counsel, which described
Guatemalan custody law and Reyes’s rights thereunder. Perez Brief at 26.
According to Perez, “the [district] court accepted this [affidavit] even though
[Reyes] testified that the same lawyer told her to lie in the Guatemalan court
proceedings.” Id. We are unpersuaded that the district court so erred. Critically,
6
Perez argues that the district court improperly found that he consented to Guatemala
being E.L.’s habitual residence. But the district court never made such a finding; instead the
court cited to Perez’s behavior as one piece of evidence among many indicating that Guatemala
had become E.L.’s habitual residence.
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in its order granting Reyes’s petition, the district court nowhere relied on the
affidavit regarding Guatemalan law that Reyes’s counsel supplied.
Instead, the district court relied on the Hague Convention, Guatemala’s Civil
Law Code, and a series of federal cases construing the Hague Convention’s
parental rights provisions. Perez argues that the district court’s construction of
these sources was erroneous. Specifically, he asserts that the district court
improperly rejected the assessment of Guatemalan law provided by a Guatemalan
attorney on Perez’s behalf. We disagree.
As the district court explained, Article 252 of the Civil Law Code of
Guatemala grants parental power over minor children jointly to a married mother
and father, and in any other case to the parent in whose power the child is.
Because Reyes and Perez were not married, the question becomes: in whose
power was E.L. at the time he was removed to the United States? Article 261 of
the Civil Law Code notes that children shall be in the power of the mother where
the mother is unwed, unless both parents agree that the father should have custody.
Consequently, the district court properly determined that under Guatemalan law
Reyes had custodial rights over E.L. sufficient to render Perez’s removal of E.L.
unlawful.
The attorney’s affidavit Perez submitted did not quarrel with the conclusion
that if the Civil Law Code applied, Reyes had custodial rights over E.L. Instead,
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the affidavit asserted that the Civil Law Code did not apply to E.L. because E.L.
was not “registered” in Guatemala. The problem with the affidavit is that it
provided no primary source Guatemalan law—either in the form of statutes or case
law—to support the proposition that the Civil Law Code does not apply to
unregistered children. While the affidavit repeatedly cited (and provided translated
text of) law indicating that Guatemalan parents must register their children within
60 days of birth, none of the law cited in the affidavit makes application of the
Civil Law Code contingent on registration. Indeed, the law Perez provided (which
the affidavit labeled Registration At The Vital Records, Articles 67-73) explicitly
identified the consequences of failing to register: “The lack of registration before
the Office of Vital Records prevents the individual from obtaining a Personal []
Identification Card and the issuance of any certification by [Guatemala’s
registration agency].” Aff. of Frank Rigoberto de León Ortiz (Doc. 43-1). 7 This
language affords us no basis to reject application of the Civil Law Code.
Perez protests that construing Guatemalan law in the way Reyes suggests
would permit single Guatemalan mothers to abduct their children and bring them
to Guatemala, whose courts would automatically grant them custody. But the
Hague Convention prevents Perez’s slippery slope from manifesting. Where a
child is removed from his habitual residence and taken to Guatemala, the Hague
7
Citations to “Doc.” refer to docket entries in the district court record in this case.
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Convention mandates that the child be returned to his habitual residence for a
custody determination. Where a child has no previous habitual residence and the
mother removes the child to Guatemala—as happened here—a Guatemalan court
is only empowered by the Hague Convention to determine each parent’s custodial
rights if the child has become habitually resident in Guatemala. If the child has
become habitually resident in Guatemala, then Guatemala is the Hague
Convention’s preferred forum. If the child has no habitual residence in any
location, then there is no alternative forum that necessarily would be preferable to
Guatemala, and Perez’s complaint is simply that he finds Guatemalan law
unfavorable. In short, Perez’s assertions are unfounded. In this case, Guatemala is
empowered to make the custody determination—and Perez’s removal of E.L. was
unlawful—because E.L. was habitually resident in Guatemala at the point when he
was removed.8
We therefore uphold the district court’s determination that Reyes had
custodial rights over E.L. in Guatemala.
C. The district court did not violate Perez’s due process rights.
8
Perez also argues that the district court improperly made a final determination that
Reyes should have custody of E.L. The district court did no such thing, instead properly
recognizing that once E.L. was returned to Guatemala, “the parties will be able to pursue legal
custody proceedings in accordance with the laws of Guatemala.” Order at 23. The district court
found only that Reyes had some custodial rights under Guatemalan law such that Perez’s
removal of E.L. was unlawful under the Hague Convention.
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Finally, Perez argues that the district court violated his due process rights by
giving him only seven days to prepare for an evidentiary hearing. This argument is
meritless. “The court’s inquiry is limited to the merits of the abduction claim and
not the merits of the underlying custody battle.” Ruiz, 392 F.3d at 1250. “The
[C]onvention is intended as a rapid remedy for the left-behind parent to return to
the status quo before the wrongful removal or retention.” Id. (internal quotation
marks omitted). Consequently, “Article 11 of the Convention provides [t]he
judicial . . . authorities of Contracting States shall act expeditiously in proceedings
for the return of children.” West v. Dobrev, 735 F.3d 921, 929 (10th Cir. 2013)
(alterations in original) (internal quotation marks omitted). To facilitate the goal of
expediency, “a district court has a substantial degree of discretion in determining
the procedures necessary to resolve a petition filed pursuant to the Convention and
ICARA.” Id. “Specifically, neither the Convention nor ICARA, nor . . . the Due
Process Clause of the Fifth Amendment[] requires that discovery be allowed or
that an evidentiary hearing be conducted as a matter of right in cases arising under
the Convention.” Id. (internal quotation marks omitted); see also March v. Levine,
249 F.3d 462, 474 (6th Cir. 2001) (noting that the Hague Convention “requires not
only expeditious action by courts under article 11 . . . but use of the most
expeditious procedures available” (internal quotation marks omitted)).
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Although this court has not yet assessed the interaction between the Hague
Convention’s demand for expediency and due process rights, we are persuaded by
the Tenth Circuit’s approach in West. There, the district court possessed the
petition, the respondent’s answer to the petition, and the affidavit of a psychologist
(provided by the respondent) who had interviewed the children at issue and noted
possible child abuse on part of the petitioner. West, 735 F.3d at 926-27. The
psychologist refused to testify at a hearing, so the respondent asked the court to
appoint a psychologist to interview the children. Id. at 927-28. The court declined
to do so, found that no evidentiary hearing was necessary, and ordered the
respondent to return the children to the petitioner. Id. at 928-29.
On appeal, the Tenth Circuit held that the respondent’s due process rights
had not been violated. In doing so, the court noted that the respondent was not
entitled to “what appears . . . under the totality of the facts presented [to be] a
‘fishing expedition.’” Id. at 932. “To condone Respondent’s efforts would
sabotage the underlying premise of the Convention, i.e., that wrongfully removed
or retained children be promptly returned to their country of habitual residence, . . .
so that a court there may resolve custody-related questions in the best interests of
the children.” Id. Ultimately, the court reasoned that the respondent “received a
meaningful opportunity to be heard,” which is “all due process requires in the
context of a Hague Convention petition.” Id.
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Case: 16-16568 Date Filed: 03/01/2017 Page: 22 of 22
Here, the district court conducted fact-finding substantially more robust than
the district court in West. Instead of relying on written submissions alone, the
district court held a four day evidentiary hearing. At the hearing, Perez was
permitted to enter documentary evidence, call witnesses, and cross examine
Reyes’s witnesses. Although Perez protests that he was unable to locate certain
witnesses or obtain certain documentary evidence in time, he was given a five day
continuance, and he never identifies what these witnesses’ likely testimony would
have been or what that evidence might have shown. Moreover, even if he had, as
West demonstrates, the perfect cannot be the enemy of the good in assessing Hague
Convention petitions. Like the respondent in West, Perez “received a meaningful
opportunity to be heard,” satisfying his due process rights.9
IV. CONCLUSION
For the foregoing reasons, we affirm the district court’s order.
AFFIRMED.
9
To the extent Perez argues that the district court violated his due process rights by
setting a hearing for transfer of E.L. too soon after its ruling or by reading from prepared remarks
in rejecting Perez’s Emergency Motion to Stay, we reject these arguments as meritless.
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