Centeno Aguirre v. Barco Hernandez

Filing 44

ORDER by Chief Judge Philip A. Brimmer on 11/25/24. The Complaint and Petition for Return of Children 1 is GRANTED. Respondent shall ensure that A.B.C. and F.B.C. are returned to Canada at a location acceptable to petitioner on or before Decemb er 15, 2024. No later than seven days before the date of A.B.C.'s and F.B.C.'s departure for Canada, respondent shall file under level one restriction in this case, D.C.COLO.LCivR 7.2(b), a notice that informs petitioner of the details and date of the children's return to Canada. Respondent shall ensure that A.B.C. and F.B.C. travel with their Italian passports and that the passports are delivered to petitioner upon the children's return. Petitioner may file a post-judgment motion for the allocation of costs and expenses consistent with t the procedures set forth in Federal Rule of Civil Procedure 54(d)(1) and D.C.COLO.LCivR 54.1. This case is closed. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 24-cv-01635-PAB-STV
OLGA SUGEY CENTENO AGUIRRE,
Petitioner,
v.
FRANCESCO GIOVANNI BARCO HERNANDEZ,
Respondent.
ORDER
This matter is before the Court on the Complaint and Petition for Return of
Children [Docket No. 1]. The Court held an evidentiary hearing on September 11, 2024.
Docket No. 40. Both parties presented testimony and introduced exhibits. 1 The Court
has jurisdiction pursuant to 22 U.S.C. § 9003(a) and 28 U.S.C. § 1331.

1 At the hearing, both parties introduced exhibits which contained text messages

between petitioner and respondent and other documents that are written in Spanish.
Neither party tendered certified translations of these exhibits. The parties agreed to
submit certified translations of these exhibits, which were filed on September 12, 2024.
Docket Nos. 41-1, 41-2, 41-3, 41-4, 41-5, 41-6, 41-7, 41-8, 41-9, 41-10, 41-11, 41-12.
The Court finds that these translations have been certified and authenticated and the
Court will, as agreed by the parties, admit them as evidence for purposes of the
hearing. See Suchite v. ABM Aviation, Inc., 2024 WL 3498498, at *2 (S.D. Cal. July 22,
2024) (“witness testimony translated from a foreign language must be properly
authenticated and any interpretation must be shown to be an accurate translation done
by a competent translator” (citation and alterations omitted)).

I.

BACKGROUND
A. The Hague Convention
The purpose of the Hague Convention on the Civil Aspects of International Child

Abduction, opened for signature Oct. 25, 1980, T.I.A.S. 11,670 (hereinafter “Hague
Convention” or “Convention”), as well as its corresponding United States law, the
International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. §§ 9001 et seq., is to
prevent parents from abducting their children in order to avoid unfavorable custody
decisions in the children’s country of habitual residence. Livingstone v. Livingstone,
2023 WL 8524922, at *1 (10th Cir. Dec. 8, 2023) (citing Shealy v. Shealy, 295 F.3d
1117, 1121 (10th Cir. 2002)). “Generally, the Hague Convention creates an
international legal mechanism requiring contracting states to promptly return children
who have been wrongfully removed to, or wrongfully retained in, their jurisdiction,
without deciding anew the issue of custody.” Id. (citing Navani v. Shahani, 496 F.3d
1121, 1124 (10th Cir. 2007) (brackets omitted)). ICARA provides federal district courts
with original jurisdiction over petitions seeking the return of children pursuant to the
Hague Convention. 22 U.S.C. § 9003(a).
A prima facie case of wrongful removal under the Hague Convention requires
that a petitioner establish “(1) the child was habitually resident in a given state at the
time of the removal or retention; (2) the removal or retention was in breach of
petitioner’s custody rights under the laws of that state; and (3) petitioner was exercising
those rights at the time of removal or retention.” Ogawa v. Kang, 946 F.3d 1176, 1179
(10th Cir. 2020) (quotation omitted); see also Hague Convention, art. 3.
Even if a removal is deemed unlawful, children are not required to return to the
country of habitual residence if “one of the affirmative defenses or narrow exceptions
2

set forth in the Convention” applies. Livingstone, 2023 WL 8524922, at *2 (citing West
v. Dobrev, 735 F.3d 921, 931 (10th Cir. 2013)). These defenses include: (1) the
proceeding was commenced more than one year after the child’s retention and the child
has become settled in his or her new environment, see Hague Convention, art. 12; (2)
the parent seeking the return of the child either consented to or subsequently
acquiesced in the retention, id., art. 13; (3) there is a grave risk that the return of the
child would expose the child to physical or psychological harm, id., art. 13(b); and (4)
“the return of the child[] would not be permitted by the fundamental principles of the
requested State relating to the protection of human rights and fundamental freedoms.”
See Gil-Leyva v. Leslie, No. 17-CV-01406-KLM, 2018 WL 10322064, at *4 (D. Colo.
Apr. 17, 2018), aff’d, 780 F. App’x 580 (10th Cir. 2019) (unpublished).
B. Factual Background 2
Petitioner Olga Sugey Centeno Aguirre and respondent Francesco Giovanni
Barco Hernandez are the parents of A.B.C. and F.B.C., both boys. A.B.C. is twelve
years old. F.B.C. is seven years old. Both A.B.C. and F.B.C. were born in Costa Rica
and are citizens of Costa Rica and Italy. See Docket Nos. 34-3, 34-4. Ms. Centeno is
married to Mr. Barco. Docket No. 34-5. Although Ms. Centeno and Mr. Barco remain
married, the two no longer have a romantic relationship, and both have asked the other
for a divorce at different times. See, e.g., Docket No. 41-8 at 1.

2 These facts are taken from the testimony at the September 11, 2024 hearing

and from exhibits admitted into evidence. The Court recites only those facts that are
material to the Court’s analysis.
3

A.B.C. was born with anemia and has been seen by doctors every few months
since he was born. 3 A.B.C. has ADHD. F.B.C. is autistic. 4 Docket No. 41-11 at 9.
Five years ago, Mr. Barco left Costa Rica to live in the United States and settled
in Colorado. After Mr. Barco left for the United States, A.B.C. and F.B.C. lived with Ms.
Centeno, who was their primary care provider. Mr. Barco has refugee status in the
United States and cannot leave the country.
In November 2022, Ms. Centeno traveled to Toronto, Canada to start a new life
for herself and the children. Ms. Centeno found employment as a construction painter.
She went to Toronto alone, but brought the children to Toronto after eight months. Ms.
Centeno chose to move to Canada because Costa Rica would not be able to
accommodate her children’s ability challenges, whereas Canada offered them greater
opportunities. Ms. Centeno and Mr. Barco agreed to the children moving to Toronto
with Ms. Centeno. Ms. Centeno bought the children new clothing, which was necessary
because of the difference in climate between Costa Rica and Canada. Ms. Centeno
found housing and a school for the children. She enrolled the children in Precious
Blood Catholic School (“PBCS”) in Toronto. Docket No. 34-11 at 1; Docket No. 34-12 at
1. Mr. Barco assisted Ms. Centeno in enrolling the children in PBCS by providing the
school one of the children’s certificates of baptism. Docket No. 41-9 at 1; Docket No.
34-34.

3 Testimony at the hearing suggests that A.B.C. is no longer anemic.

However,
Ms. Centeno testified that she has continued to take A.B.C. to the doctor every two to
three months.
4 Mr. Barco testified that F.B.C. has been evaluated in the United States and has
been determined to be slightly on the autism spectrum.
4

At the beginning of June 2023, Ms. Centeno returned to Costa Rica in order to
relocate the children to Canada. 5 Within days of arriving in Canada, F.B.C. visited an
orthodontist and A.B.C. visited an ophthalmologist. The children played video games,
visited parks, and attended birthday parties with family friends. A.B.C. and F.B.C.
started attending PBCS on October 2, 2023. 6 Ms. Centeno did not get off work until
after the children had returned from school. Ms. Centeno’s romantic partner, Antonio,
and a neighbor took care of the children, until Ms. Centeno got off work.
A.B.C. and F.B.C. were both able to make friends at PBCS and the school was
providing services to meet the educational needs of the children. See Docket No. 41-10
at 3 (“I have requested a switch to the mini-bus as F. qualifies.”). However, text
messages sent from Ms. Centeno to Mr. Barco on November 13, 2023 indicate that she
was frustrated with PBCS and that she believed “[m]y kids are suffering.” Docket No.
41-10 at 1. On November 14, 2023, Ms. Centeno forwarded to Mr. Barco
correspondence from the school indicating that A.B.C. had been punched on the bus.
Docket No. 41-10 at 2–3. On December 11, 2023, Ms. Centeno sent a text message to
Mr. Barco indicating that A.B.C. did not have friends to play with, that he was going
through a difficult time, and that A.B.C. and F.B.C. were being bullied. See Docket No.
41-11 at 4.

5 No evidence was introduced as to who cared for the children while they

remained in Costa Rica.
6 Ms. Centeno testified that school at PBCS for the current school year started on
September 4, 2024. No evidence was submitted regarding why the children started
school almost a month after the school year started in 2023.
5

In October 2023, Ms. Centeno and Mr. Barco discussed the children visiting Mr.
Barco in Colorado in December. 7 In November 2023, Ms. Centeno told Mr. Barco that
she was going through a situation with Antonio. 8 Mr. Barco testified that, in November,
Ms. Centeno suggested that the children relocate to Colorado to stay with Mr. Barco
because of the issues she was having. However, Mr. Barco also testified that he and
Ms. Centeno agreed that the children should travel to Colorado and that no return date
was specified. Ms. Centeno testified that she never intended for the children to move to
Colorado, but believed that it was appropriate for the children to visit their father. In text
messages sent from Ms. Centeno to Mr. Barco on December 1, 2023, Ms. Centeno
states that “I am going to separate and I need to look for a good place” and “they will be
better there with you while I find a place.” Docket No. 41-10 at 4. From these texts, the
Court finds that it was Ms. Centeno’s intent in early December 2023 to end her
relationship with Antonio, with whom she was having problems, and that she believed
that it would be better for the children to visit Mr. Barco while she found a new
residence. The Court finds that Mr. Barco and Ms. Centeno did not discuss or agree
upon a return date for the children’s trip to Colorado, but that Ms. Centeno agreed that

7 Text messages between the parties suggest that Mr. Barco requested to see

one of the children in September 2023, but Ms. Centeno told Mr. Barco that this would
not be possible because the children would be starting school soon. Docket No. 41-4 at
1. Mr. Barco requested that the child visit him for spring break, and Ms. Centeno
responded “[w]e’ll see.” Id.
8 At the hearing, the parties repeatedly referred to issues Ms. Centeno had with
her partner Antonio. Testimony at the hearing and text messages between the parties
refer to the fact that Ms. Centeno was having problems in December 2023. No
evidence was introduced as to the nature of the issues between Ms. Centeno and
Antonio.
6

the children could travel to Colorado to visit Mr. Barco. Ms. Centeno secured ninety-day
visas for the children to travel to the United States.
On December 16, 2023, Mr. Barco drove with his mother from Denver to the
border of Canada near Niagara Falls in order to meet the children. Because Mr. Barco
is not permitted to leave the United States without jeopardizing his status as a refugee,
his mother crossed into Canada and escorted the children across the border to the
United States. Mr. Barco, his mother, and the children drove back to Denver, arriving
on December 17 or December 18, 2023.
When the children arrived in the United States, they were underweight. Mr.
Barco took F.B.C. to the dentist, where it was determined that F.B.C. required the
extraction of several teeth due to open cavities. See Docket No. 37-5; Docket No. 37-6
at 1. While in Colorado, A.B.C. told Mr. Barco that Antonio did not treat him or F.B.C.
well. In text messages sent from Mr. Barco to Ms. Centeno on December 23, 2023, Mr.
Barco related that both F.B.C. and A.B.C. told Mr. Barco that they disliked Antonio.
Docket No. 41-11 at 16. A.B.C. also told Mr. Barco that the children were being bullied
at PBCS. According to Mr. Barco’s testimony, after talking with A.B.C. about the
children’s living circumstances in Canada, Mr. Barco decided that the children should
remain with him in Colorado.
Text messages exchanged between the parties on December 23, 2023
demonstrate that the parties’ disagreement over whether the children should return to
Canada had begun. Ms. Centeno’s December 23, 2023 text messages state that the
parties had discussed that the travel to Colorado would take place during a “vacation”
and that afterwards the children would return to Toronto. Id. at 18 (“We talked about

7

them going on vacation . . . . And they would come back”). Mr. Barco’s text messages
back to Ms. Centeno, also on December 23, 2023, state that Ms. Centeno had told Mr.
Barco to keep the children and that she had many problems. Id. (“You told me to keep
them”). Ms. Centeno replied that she had asked Mr. Barco to keep the children
“temporarily” and that she had solved several of her problems. Id. at 18–19 (“But I
already fixe[d] several”). Id. at 19. She said that she had told Mr. Barco to return the
children by January 20, 2024. 9 Id. at 19 (“I told you January 20”).
During the parties’ disagreement over when or whether the children should return
to Canada, Mr. Barco made demands, including that Ms. Centeno should no longer
work but rather stay home with the children. See Docket No. 41-11 at 21 (text
messages from Mr. Barco on December 23, 2023 questioning whether Ms. Centeno can
be present for the children and work at the same time). Ms. Centeno agreed to these
conditions as a way of having her children returned. Docket No. 42 at 34: 5–9 (“Well,
because he would say, because Francesco would tell me that a woman needs to stay
home at the house and take care of her children. And so in my desperation, I
responded to every one of his questions by saying yes so that he would return my
children to me.”). At some point, Ms. Centeno proposed that F.B.C. return to Canada,
but that A.B.C. could continue to live in Colorado. In a text message from Ms. Centeno

9 Ms. Centeno testified that she had originally told Mr. Barco that the children

needed to return to Canada by January 8. After Mr. Barco told her that he would not
return the children, she told Mr. Barco that the children needed to return by January 20
because the children would have been out of school for approximately one month at
that time. Text messages sent from Ms. Centeno to Mr. Barco on January 1, 2024
indicate that Ms. Centeno told Mr. Barco that he must return the children to Canada by
“Saturday the 13th, since they go back to school on January 3rd, and obviously I don’t
want them to miss the school year.” Docket No. 41-12 at 2.
8

to Mr. Barco on December 23, 2023, Ms. Centeno states “Francesco, you want to help,
educate” A.B.C. “[a]nd give [F.B.C.] back to me.” Docket No. 41-11 at 23. The Court
finds Ms. Centeno’s testimony credible that her proposal that F.B.C. return to Canada
while A.B.C. stayed in Colorado was made in response to Mr. Barco’s increasing
demands regarding the circumstances under which he would let the children return to
Canada, and was her attempt to persuade Mr. Barco to allow at least one of the two
children to return to Canada.
However, Mr. Barco did not return either A.B.C. or F.B.C. to Canada. Before
August 20, 2024, Mr. Barco lived with the children in Aurora, Colorado. On August 20,
2024, Mr. Barco, A.B.C., and F.B.C. moved to a new residence in Littleton, Colorado.
A.B.C. and F.B.C. currently attend schools in the Littleton public school system. F.B.C.
has seen a dentist in Colorado, who treated his cavities.
On February 8, 2024, Ms. Centeno filed applications with Canadian authorities
and with the United States Department of State for the return of the children to Canada.
Docket No. 34-1; Docket No. 34-2. On June 11, 2024, Ms. Centeno filed her petition in
this Court. 10 Docket No. 1. Pursuant to 22 U.S.C. § 9004 and the Hague Convention,
Ms. Centeno requests that the Court order Mr. Barco to immediately return the children
to Canada for the appropriate resolution of the parties’ custody dispute. 11 Id. at 7–8,
¶¶ 41–42.

10 Ms. Centeno’s filing is titled as a “Complaint and Petition for Return of

Children.” Docket No. 1 at 1. ICARA refers to such filings as petitions and the Court
will do the same. 22 U.S.C.A. § 9003(b).
11 At the hearing, Ms. Centeno also requested that the Court order Mr. Barco to
return the children’s Italian passports to Ms. Centeno.
9

II.

ANALYSIS
A. Petitioner’s Prima Facie Case
To establish wrongful retention, Ms. Centeno must make a prima facie case

consisting of three elements: (1) her children habitually resided in Canada at the time of
the retention, (2) such retention breached Ms. Centeno’s custody rights under the law of
Canada, and (3) Ms. Centeno was exercising those rights at the time of retention. See
Livingstone, 2023 WL 8524922, at *1; see also 22 U.S.C. § 9003(e)(1). Ms. Centeno
has the burden to prove that her children have been wrongfully retained within the
meaning of the convention by a preponderance of the evidence. 22 U.S.C.
§ 9003(e)(1)(A).
1. Habitual Residence
a. Meaning of “habitual residence”
“The Hague Convention does not define the term ‘habitual residence.’” Monasky
v. Taglieri, 589 U.S. 68, 76 (2020); see also Pope ex rel. T.H.L-P v. Lunday, 835 F.
App’x 968, 971 (10th Cir. 2020) (unpublished); Holder v. Holder, 392 F.3d 1009, 1015
(9th Cir. 2004). The Supreme Court in Monasky held that a “child ‘resides’ where she
lives. Her residence in a particular country can be deemed ‘habitual,’ however, only
when her residence there is more than transitory.” Monasky, 589 U.S. at 76 (citation
omitted). “The place where a child is at home, at the time of removal or retention, ranks
as the child’s habitual residence.” Id. “[L]ocating a child’s home is a fact-driven inquiry,”
in which “courts must be sensitive to the unique circumstances of the case and informed
by common sense.” Id. at 78 (internal quotation marks omitted). In Monasky, the Court
rejected any “categorical requirements for establishing a child’s habitual residence.” Id.
at 80. Accordingly, “[b]ecause children, especially those too young or otherwise unable
10

to acclimate, depend on their parents as caregivers, the intentions and circumstances of
caregiving parents are relevant considerations. No single fact, however, is dispositive
across all cases.” Id. at 78. Ultimately, the question is, “[w]as the child at home in the
particular country at issue?” Id. at 84.
Before Monasky, courts would generally first “inquire into the shared intent of
those entitled to fix the child’s residence (usually the parents) at the latest time that their
intent was shared.” Gitter v. Gitter, 396 F.3d 124, 134 (2d Cir. 2005); see also Ruiz v.
Tenorio, 392 F.3d 1247, 1250 (11th Cir. 2004) (en banc); Smith v. Smith, 976 F.3d 558,
561 (5th Cir. 2020) (“Before Monasky, the Fifth Circuit adopted an approach that looked
to the parents’ ‘shared intent’ as a threshold test for determining a child’s habitual
residence.”).
Monasky, however, explained that, “if the parents’ actual agreement on where to
raise their child were necessary to establish a habitual residence, that ‘would create a
presumption of no habitual residence for infants, leaving the population most vulnerable
to abduction the least protected.’” Pope, 835 F. App’x at 970–71 (quoting Monasky, 589
U.S. at 81). Therefore, “a wide range of facts other than an actual agreement, including
facts indicating that the parents have made their home in a particular place, can enable
a trier to determine whether an infant’s residence in that place has the quality of being
‘habitual.’” Monasky, 589 U.S. at 81. A court also considers “where a child has lived,
the length of time there, [and] acclimatization.” Grano v. Martin, 821 F. App’x 26, 27 (2d
Cir. 2020) (unpublished) (citing Monasky, 589 U.S. at 81). Acclimatization is the inquiry
“whether the evidence unequivocally points to the conclusion that the child has
acclimatized to the new location and thus has acquired a new habitual residence.”

11

Gitter, 396 F.3d at 134; see also Hofmann v. Sender, 716 F.3d 282, 291–92 (2d Cir.
2013).
While shared intent is relevant, it is not dispositive. Dumitrascu on behalf of
A.M.B.D. v. Dumitrascu, No. 21-cv-01813-PAB, 2021 WL 4197378, at *5 (D. Colo. Sept.
15, 2021), aff’d, 2022 WL 1529624 (10th Cir. May 16, 2022). It is not always easy to
determine the parent’s shared intent. “Difficulty arises, of course, when the persons
entitled to fix the child’s residence no longer agree on where it has been fixed – a
situation that, for obvious reasons, is likely to arise in cases under the Convention.”
Mozes v. Mozes, 239 F.3d 1067, 1076 (9th Cir. 2001), abrogated on other grounds by
Monasky, 589 U.S. at 83–85. “In these cases, the representations of the parties cannot
be accepted at face value, and courts 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.
Where the family has “manifested a settled purpose to change habitual
residence,” Mozes suggests that a court should find that the child’s habitual residence
has been changed, but where “the child’s initial translocation from an established
habitual residence was clearly intended to be of a specific, delimited period,” then the
habitual place of residence should not be found to have changed, unless that period of
time is “too long to expect children to live abroad without acquiring habitual residence.”
Id. at 1076–77 & n.27.
In addition, where the parents intend that a child’s relocation is conditional, such
intent should not be deemed their last shared intent if the condition is not met. See
Mota v. Castillo, 692 F.3d 108, 115 (2d Cir. 2012). If only one party has a conditional

12

intent to relocate, “it cannot be said the parents ‘shared an intent.’” See id.; see also
Gitter, 396 F.3d at 135 (finding no clear error in district court’s determination that Israel
was not habitual residence where respondent relocated “on a conditional basis –
namely, that [respondent] would be satisfied with the new arrangements”); Calixto v.
Lesmes, 909 F.3d 1079, 1089–90 (11th Cir. 2018) (holding, when “a parent’s relocation
with a child from one country to another [is] conditioned upon the occurrence of certain
events, [ ] the first country [] remain[s] the child’s habitual residence if those events did
not come to pass”).
The Tenth Circuit has made clear that, as part of its habitual residency analysis,
“[t]he Convention does not require a district court to determine where a child habitually
resides. Instead, the Convention requires a district court to determine whether the child
habitually resides in the location that the petitioner claims.” Watts v. Watts, 935 F.3d
1138, 1147–48 (10th Cir. 2019); Pope, 835 F. App’x at 970.
b. Where was A.B.C. and F.B.C.’s habitual residence at the
time of their retention?
In this case, the parties dispute whether Canada or the United States was the
children’s habitual residence at the time of their retention. The Court first looks to the
parties’ intent, among other factors. Keeping the admonition of Monasky in mind about
not applying categorical tests, the Court nevertheless finds that an analysis of the
parties’ intent as to the residence of the children helpful here. The Court will analyze
the parties’ intent at the time the children were sent to Colorado and will then consider
whether the intent of the parties had changed by the time the children were retained.
The Court finds that, before the parties’ discussions regarding the children’s
travel to visit their father in October 2023, it was the parties’ shared intent for the
13

children to live with Ms. Centeno in Toronto, Canada. Ms. Centeno spent several
months preparing for the children to move to Canada on a permanent basis, enrolling
the children in a private school. Mr. Barco assisted in the enrollment process. He
provides no evidence that he objected to the children’s relocation to Toronto. As such,
the evidence shows that it was the parties’ intent before October 2023 for the children to
live in Toronto.
Turning to the parties’ intent at the time the children were sent to Colorado, text
messages between the parties indicate that the parties first considered having the
children travel to see Mr. Barco during their school’s spring break, rather than winter
break, which indicates that, since the beginning of the parties’ conversations before the
children’s departure to Colorado, the Colorado trip had been understood as a temporary
visit that was coordinated around the children’s school calendar. Docket No. 41-4 at 1.
Mr. Barco testified that, when the children traveled to Colorado, he and Ms.
Centeno did not define a return date. He argues that this evidences an intent for the
children to relocate to Colorado. However, the fact that he and Ms. Centeno did not
define a return date does not mean that a return date was not presumed. Nor does a
lack of a return date evidence the parties’ intent that the children should live in Colorado
for such a length of time that Colorado was to become the children’s habitual residence.
No evidence was admitted suggesting that the children were sent to Colorado with
belongings indicative of a permanent relocation. For example, the fact that Mr. Barco’s
mother was able to escort an eleven-year-old and a six-year-old across the border
without assistance indicates that the children were not traveling with luggage consistent
with a relocation to the United States. Moreover, there is no evidence that Ms. Centeno

14

withdrew the children from PBCS before their departure. Rather, Ms. Centeno testified
that, to date, PBCS expects the children to return to the school. In fact, Mr. Barco
testified that travel plans to return to Colorado were constrained by the parties’ lack of
funds for such travel. This testimony is consistent with Mr. Barco’s contemplation that
the children would return to Toronto. The Court finds that, at the time the children left
for the trip to Colorado, there was no shared, settled intention between Ms. Centeno
and Mr. Barco for the children to permanently live in Colorado. See Mozes, 239 F.3d at
1077 (citing Pesin v. Rodriguez, 77 F. Supp. 2d 1277, 1285 (S.D. Fla. 1999) (settled
purpose of family trip was a vacation of finite duration)); In re Morris, 55 F. Supp. 2d. at
1159 (when family left Colorado for school-year teaching appointment in Switzerland,
the parties had a “shared, settled intention to return to Colorado with the child,” and
mother’s unilateral change of position could not make Switzerland the habitual
residence); Freier v. Freier, 969 F. Supp. 436, 438 (E.D. Mich. 1996) (when mother left
with child, she informed father that she would be vacationing with parents for one
month); Flores v. Contreras, 981 S.W.2d 246, 248 (Tex. App. 1998) (mother brought
child to Texas for two-week vacation); Brennan v. Cibault, 227 A.D.2d 965, 965 (N.Y.
App. Div. 1996) (mother agreed that child should remain with father in New York for six
months, but expected her to return to France on a specific date).
Mr. Barco testified that, in the months before the children came to the United
States and shortly after they arrived in Colorado, Ms. Centeno suggested that it might
be better for the children if they remained with Mr. Barco. Mr. Barco testified that Ms.
Centeno was concerned about the problems she faced in Canada and about the
children’s social difficulties at school. However, the Court does not credit Mr. Barco’s

15

testimony that the parties ever shared an intent that the children should remain in
Colorado. Ms. Centeno testified that her practice was to keep Mr. Barco informed of the
children’s well-being. The Court does not find that Ms. Centeno’s decision to inform Mr.
Barco of the challenges she and the children faced while starting a new life in Canada is
evidence of an intent for the children to relocate to Colorado. Text messages indicate
that Ms. Centeno allowed the children to travel over winter break, in part, as a means of
allowing her to resolve problems she was having, such as “separat[ing]” and finding a
new residence. Docket No. 41-10 at 4. However, these text messages do not suggest
that Ms. Centeno was unable to care for her children due to these problems or that she
intended for the children to move permanently to the United States. Additionally, Mr.
Barco repeatedly testified that it was not until after Mr. Barco’s conversations with
A.B.C. in Colorado that Mr. Barco determined it was in the best interest of his children
for them not to return to Canada.
Finally, the Court credits Ms. Centeno’s testimony that any statements she made
to Mr. Barco about quitting work and requesting only one child to be returned to Canada
were made as a pressured response to Mr. Barco’s refusal to return the children and do
not reflect a shared intent for either child to live in Colorado permanently. The Court
finds that these facts support the Court’s conclusion that the parties’ shared intent
before the children left to visit Mr. Barco was to have the children return to Toronto.
Mr. Barco has produced no credible evidence that the parties’ shared intent
changed after the children arrived in Colorado. Rather, Mr. Barco changed his mind.
The fact that Mr. Barco changed his mind is not sufficient to show that the shared intent
of the parties changed. As the Ninth Circuit has noted, “where the child’s initial

16

translocation from an established habitual residence was clearly intended to be of a
specific, delimited period,” “courts have generally refused to find that the changed
intentions of one parent led to an alteration in the child’s habitual residence.” Mozes,
239 F.3d at 1077.
While the parties’ shared intent was for the children to return to Canada, shared
intent is not dispositive of habitual residence, see Monasky, 589 U.S. at 80, and there
are no “categorical requirements” for determining habitual residence. See id.; see also
Pope, 835 F. App’x at 970–71 (actual agreement is not necessary for habitual
residence). Rather, because determining habitual residence is a “fact-driven inquiry,”
the Court must consider other evidence to determine whether a child’s “residence in that
place has the quality of being ‘habitual.’” Monasky, 589 U.S. at 78–81.
Ms. Centeno’s testimony at the hearing established that she had made her home
in Toronto. She testified that she moved to Toronto at the beginning of 2022. Ms.
Centeno obtained employment as a construction painter and found housing and a
school for her children. Ms. Centeno bought the children toys, clothing, and mattresses.
During this time, the children were still in Costa Rica. The children joined Ms. Centeno
in Toronto in June 2023. While in Toronto, the children attended school and received
accommodations for their different abilities. The children began receiving medical care
and dental care. While it is true that the children only spent six months in Canada
before they left for Colorado, other courts have found that similar periods of residency
were sufficient for a country to become the habitual residence. See Johnson v.
Johnson, 669 F. Supp. 3d 1089, 1102 (D. Colo. 2023) (finding that residency from
August to December was sufficient to establish new habitual residency); Watts, 935

17

F.3d at 1144–47 (“We acknowledge that courts have found a child to have acclimatized
in as little as six months.” (citing Feder v. Evans-Feder, 63 F.3d 217, 224 (3d Cir.
1995)). Although A.B.C. and F.B.C. faced difficulty making friends in Canada, these
facts alone do not suggest that Canada did not have the quality of being habitual even if
the children experienced issues, such as bullying, common to immigrants, especially
immigrant children with certain special needs. 12
Mr. Barco testified that the children’s habitual residency has changed and that
they are presently habitual residents of Colorado. However, whether the children’s
current habitual residency is Colorado is irrelevant. Under the Hague Convention, the
Court looks to the habitual residency of the children “at the time of removal or retention.”
Hague Convention, art. 3. As such, the Court must determine the children’s habitual
residency “at the time of the allegedly wrongful retention.” Navani, 496 F.3d at 1131;
Luis Ischiu v. Gomez Garcia, 274 F. Supp. 3d 339, 346 (D. Md. 2017); Diaz Arboleda v.
Arenas, 311 F. Supp. 2d 336, 341 (E.D.N.Y. 2004); see also Pfeiffer v. Bachotet, 913
F.3d 1018, 1024 (11th Cir. 2019) (“We conclude, based on the second requirement, that
the children’s habitual residence had not changed as of the date of the challenged
removal.”).
In close cases, some courts have found that the date of retention began when
the retaining party expressed an unequivocal intent not to return the child. Slagenweit
v. Slagenweit, 841 F. Supp. 264, 268 (N.D. Iowa 1993), dismissed, 43 F.3d 1476 (8th

12 Neither party argues that the children had not acclimatized to Canada at the

time of their translocation, such that Costa Rica was their habitual residence. Watts,
935 F.3d at 1147–48 (courts need not determine where the children’s state of habitual
residence, in fact, was at the time of their retention).
18

Cir. 1994) (“It is somewhat unclear as to when the wrongful retention began. . . .
However, by March 31, 1993, when the divorce petition was filed, it was clear to all
concerned that it was Steven’s intent to keep Sandra on a permanent basis. The court
will adopt the petitioner’s argument that the date for measuring when the wrongful
retention began is March 31, 1993.”). Other courts have tried to determine the earliest
possible moment that the retention became wrongful. See, e.g., Falls v. Downie, 871 F.
Supp. 100, 102 (D. Mass. 1994) (“The first time that the conduct of the respondent in
this case could conceivably be characterized as ‘wrongful,’ would be in August of 1994
when Falls asked to take Patrick back to Germany and Downie refused to let him go.
The petitioner bears the burden of proving by a preponderance of the evidence that
Patrick at that time was a ‘habitual resident’ of Germany.”). Here, the evidence shows
that Mr. Barco expressed his intent not to return the children on December 23, 2023.
Nevertheless, as evidenced by the text messages between the parties and Ms.
Centeno’s testimony, Ms. Centeno agreed to allow the children to remain in Colorado
until January 20, 2024. However, Mr. Barco did not return the children to Canada after
January 20, 2024. The Court finds that the date of wrongful retention is January 20,
2024, as this date is the first time Mr. Barco’s retention of the children in this case can
be characterized as wrongful. 13 See Falls, 871 F. Supp. at 102.
Mr. Barco asserts that the habitual residence of the children at the time of
retention was Colorado. Given that the Court has determined that, at the time the

13 Ms. Centeno testified that the original return date for the children was January

8, 2024, and suggests that she may have agreed to an extension of time only as a
concession made to Mr. Barco’s demands. However, the evidence shows that Ms.
Centeno agreed to allow the children to remain in Colorado until January 20, 2024 and
the Court will use this date as the date of wrongful retention.
19

children traveled to Colorado, their habitual residence was Canada and that the shared
intent of the parties did not change between the date of departure and the date of
retention, Mr. Barco appears to argue that, nevertheless, Colorado gained the “quality of
being ‘habitual’” by the time he retained the children. Monasky, 589 U.S. at 81.
As of January 20, 2024, the children had spent only a month in Colorado. The
children left Canada on December 16, 2023. Although there was no testimony as to
when the children started school in Colorado, it is reasonable to assume that they would
not have started school until after the holiday break. Considering that the children had
traveled away from their primary care provider to a country they had never visited in
order to spend time with their father, who they had not seen in five years, the Court
finds that the United States had not become the children’s habitual residence in a single
month. Monasky, 589 U.S. at 78 (“locating a child’s home is a fact-driven inquiry,” in
which courts must be “informed by common sense”).
The Court concludes that Ms. Centeno has shown by a preponderance of the
evidence that the children’s habitual residence at the time of their retention was
Toronto, Canada.
2. Petitioner’s Custody Rights
The second element of the prima facie case is a breach of the petitioning
parent’s custody rights. “[C]ustody of a child entails the primary duty and ability to
choose and give sustenance, shelter, clothing, moral and spiritual guidance, medical
attention, education, etc., or the (revocable) selection of other people or institutions to
give these things.” Croll v. Croll, 229 F.3d 133, 138 (2nd Cir. 2000), abrogated on other
grounds by Abbott v. Abbott, 560 U.S. 1 (2010); see also Furnes v. Reeves, 362 F.3d
702, 716 (11th Cir. 2004) (“The right to determine a child’s language, nationality, and
20

cultural identity is plainly a right relating to the care of the person of the child within the
meaning of the Convention”) (internal quotations omitted), abrogated on other grounds
by Lozano v. Montoya Alvarez, 572 U.S. 1 (2014).
The parent need not have sole or even primary custody to have rights under the
Convention. Furnes, 362 F.3d at 715. “In analyzing whether a parent has custodial
rights under the Hague Convention, it is crucial to note that the violation of a single
custody right suffices to make removal of a child wrongful. That is, a parent need not
have ‘custody’ of the child to be entitled to return of his child under the Convention;
rather; he need only have one right of custody.” Id. While many courts have placed
particular emphasis on a parent’s right to determine the child’s place of residence when
examining whether a parent has rights of custody, the Convention also states that
“rights of custody” shall include rights relating to the care of the child. See Lieberman v.
Tabachnik, 625 F. Supp. 2d 1109, 1118 (D. Colo. 2008); Hague Convention, art. 5(a)
(defining “rights of custody” as “relating to the care of the person of the child and, in
particular, the right to determine the child’s place of residence”). When no formal
custody agreement exists between the parents, the Court must apply the laws of the
country of the child’s habitual residence to determine if the non-removing parent had
“rights of custody” within the meaning of the Convention. See, e.g., Sealed v. Sealed,
394 F.3d 338, 343 (5th Cir. 2004). “The Convention is very clear that the law of the
country in which the child was habitually resident governs decisions as to whether
custody rights existed at the time of removal.” Shealy, 295 F.3d at 1124; Abou-Haidar
v. Sanin Vazquez, 945 F.3d 1208, 1215 (D.C. Cir. 2019) (courts conduct a four-part
inquiry, including, “[d]id the removal or retention breach the rights of custody attributed

21

to the petitioner under the law of the habitual residence?”). Because the Court has
found that the children’s habitual residence is Toronto, Canada, the Court looks to
Canadian law.
As Ms. Centeno pointed out at the hearing, Canadian law defines custody as
“decision-making responsibility.” Children’s Law Reform Act, R.S.O. 1990, c
C.12(18)(5) (Can.) (“Unless the context requires otherwise, a reference in an Act or
regulation to custody of a child, including lawful custody or legal custody of a child,
includes reference to decision-making responsibility with respect to the child under this
Act.”). Decision-making authority is in turn defined as “responsibility for making
significant decisions about a child’s well-being, including with respect to, (a) health,
(b) education, (c) culture, language, religion and spirituality, and (d) significant extracurricular activities.” R.S.O. 1990, c C.12(18)(1). This is in contrast to individuals who
have to entitlements to “parenting time,” which is defined as “the time a child spends in
the care of a parent of the child, whether or not the child is physically with the parent
during that time,” and “includes the right to visit with and be visited by the child, and
includes the same right as a parent to make inquiries and to be given information about
the child’s well-being, including in relation to the child’s health and education.” R.S.O.
1990, c C.12(18)(1), (20)(5).
Ms. Centeno testified that she had enrolled her children in PBCS and that it was
her intention that the children return to school after the winter break. Moreover,
evidence from the hearing showed that she had been providing for the children’s
medical and dental needs prior to their travel to Colorado. More importantly, Ms.
Centeno had been the children’s only caretaker in Toronto since the time the children

22

moved to Canada. In each of these instances, Ms. Centeno was exercising her
decision-making authority regarding the children’s well-being, which is a custody right
under Canadian law. R.S.O. 1990, c C.12(18)(1). The children’s retention in Colorado
interfered with this custody right.
Finally, as Ms. Centeno points out, under Canadian law, “if the parents of a child
live separate and apart and the child lives with one of them with the consent, implied
consent or acquiescence of the other, the right of the other to exercise the entitlement to
decision-making responsibility with respect to the child, but not the entitlement to
parenting time, is suspended until a separation agreement or order provides otherwise.”
R.S.O. 1990, c C.12(20)(4). Canadian law recognizes that the parties may enter into a
separation agreement that amends this default rule, but there was no evidence that Ms.
Centeno and Mr. Barco have entered into a separation agreement. Id. The Court notes
that the issue is not whether Mr. Barco also had custodial rights, but only whether Ms.
Centeno had custodial rights that were violated at the time of the retention. The Court
finds Canadian law regarding the default rule for parents living separately to be
persuasive evidence that Ms. Centeno was exercising decision-making responsibility
over the children under Canadian law. Given that Mr. Barco and Ms. Centeno have
lived separate and apart for five years and the children did not live with Mr. Barco during
this time, this provision of Canadian law suggests that Ms. Centeno was the only parent
who had decision-making authority and, therefore, custodial rights under the Hague
Convention, over the children at the time they were retained in Colorado.
Canadian law further provides for the circumstances under which a parent may
relocate a child. Canadian law defines “relocation” as “a change in residence of a child,

23

or of a person who has decision-making responsibility or parenting time with respect to
the child or is an applicant for a parenting order in respect of the child, that is likely to
have a significant impact on the child’s relationship with, (a) another person who has
decision-making responsibility or parenting time with respect to the child or is an
applicant for a parenting order in respect of the child.” R.S.O. 1990, c C.12(18)(1). Mr.
Barco’s decision to retain the children in Colorado was a relocation of the children
because it has had a significant impact on the children’s relationship with Ms. Centeno.
Canadian law requires that, for such a relocation to be authorized, Mr. Barco must
provide Ms. Centeno sixty days prior notice, at which point Ms. Centeno may object
within thirty days of receiving such notice. R.S.O. 1990, c C.12(39.3)(1), (5). The law
states that a “person who has given notice of a proposed relocation in accordance with
section 39.3 and who intends to relocate a child may do so as of the date referred to in
the notice if, (a) the relocation is authorized by a court; or (b) no objection to the
relocation is made in accordance with subsection 39.3 (5) and there is no order
prohibiting the relocation.” R.S.O. 1990, c C.12(39.4)(2).
Here, the evidence shows that none of the requirements for an authorized
relocation have occurred. The Court has found that Mr. Barco’s wrongful retention of
the children began on January 20, 2024. Mr. Barco did not comply with the sixty-day
notice requirement, which would have required that he give notice to Ms. Centeno by
November 20, 2023. There is no evidence that Mr. Barco had received authorization
from a Canadian court to relocate the children to Colorado. Therefore, the Court finds
that Mr. Barco’s retention of the children breached Ms. Centeno’s custody rights under
Canadian law.

24

3. Petitioner’s Exercise of Custody Rights
The third prong of the prima facie case is that the petitioner was exercising her
custody rights at the time of the wrongful retention. “[A] person cannot fail to ‘exercise’
[her] custody rights under the Hague Convention short of acts that constitute clear and
unequivocal abandonment of the child. Once it determines that the parent exercised
custody rights in any manner, the court should stop – completely avoiding the question
whether the parent exercised the custody rights well or badly.” In re Application of
Stead v. Menduno, 77 F. Supp. 3d 1029, 1035 (D. Colo. 2014) (citing Friedrich v.
Friedrich, 78 F.3d 1060, 1066 (6th Cir. 1996)). The evidence confirms that Ms. Centeno
was exercising her custody rights under Canadian law before her children were
wrongfully retained. At the time of the retention, Ms. Centeno was the primary care
provider for her children. Moreover, Ms. Centeno had enrolled them in PBCS, and it
was her intent for her children to return to PBCS after winter break. Croll, 229 F.3d at
138 (“custody of a child entails the primary duty and ability to choose and give
sustenance, shelter, clothing, moral and spiritual guidance, medical attention,
education, etc.”).
Considering whether Ms. Centeno abandoned her children, Ms. Centeno has
continued to attempt to exercise her custodial rights since the children were retained.
Ms. Centeno filed petitions for the return of the children with authorities in Canada and
the United States on February 8, 2024, less than three weeks after the wrongful
retention began. Docket No. 34-1; Docket No. 34-2. She has also tried to maintain
contact with her children through frequent video calls, text messages, and emails. Ms.
Centeno filed a temporary restraining order in this case, petitioning the Court to order

25

Mr. Barco not to interfere with such communication. 14 Docket No. 10. Mr. Barco does
not contest that Ms. Centeno was exercising custody rights, and the Court identifies no
evidence of “clear and unequivocal abandonment.” See Friedrich, 78 F.3d at 1066.
The Hague Convention provides that retention of a child is wrongful if, at the time
of retention, a parent was either exercising her custodial rights or if those rights “would
have been so exercised but for the removal or retention.” Hague Convention, art. 3(b).
Ms. Centeno argues, and the Court agrees, that the evidence shows that Ms. Centeno
intended to resume her role as the children’s caregiver upon their return to Canada.
For the foregoing reasons, the Court finds that Ms. Centeno has satisfied her
prima facie case under the Hague Convention.
B. Respondent’s Defenses
Having determined that Ms. Centeno has met her burden, the Court now
considers whether any of the four possible exceptions or defenses apply. Courts have
held that such exceptions must be narrowly construed. See West, 735 F.3d 929; Avila
v. Morales, No. 13-cv-00793-MSK-MEH, 2013 WL 5499806, at *13 (D. Colo. Oct. 1,
2013) (citing Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259, 277 (3d Cir. 2007)). Two of
the available defenses must be established by a preponderance of the evidence: (1) the
proceeding was commenced more than one year after the child’s retention and the child
has become settled in her new environment, see Hague Convention, art. 12; or (2) the
parent seeking return of the child either consented to or subsequently acquiesced in the
retention. See Hague Convention, art. 13; see Gil-Leyva, 2018 WL 10322064, at *4

14 The Court found that a temporary restraining order was not necessary in this

case because Mr. Barco stipulated to the relief requested in Ms. Aguirre’s motion. See
Docket Nos. 18, 24.
26

(citing Crane v. Merriman, 2017 WL 4079406, at *5 (W.D. Okla. Sept. 14, 2017)). The
other two defenses require proof by clear and convincing evidence: (3) there is a grave
risk that the return of the child would expose the child to physical or psychological harm,
see Hague Convention, art. 13(b); or (4) “the return of the child[] would not be permitted
by the fundamental principles of the requested State relating to the protection of human
rights and fundamental freedoms.” See Gil-Leyva, 2018 WL 10322064, at *4 (citing
Hague Convention, art. 20); Crane, 2017 WL 4079406, at *5. The only defense Mr.
Barco raises is that Ms. Centeno consented to or subsequently acquiesced in the
retention. Nevertheless, the Court will briefly consider the first three defenses. The
Court does not consider the last defense, which is called the public policy defense,
because “it is so rarely invoked that it is considered to have ‘nearly faded without a
trace.’” See Filho v. de Albuquerque, No. 20-cv-01421-RBJ, 2020 WL 9455201, at *7
(D. Colo. Aug. 21, 2020) (quoting Beaumont, P.R. & McEleavy, P.E., The Hague
Convention on International Child Abduction 172 (1999)).
1. Well-Settled
The “now-settled” or “well-settled” defense is found in Article 12 of the
Convention, which states, in relevant part, that the Court, “even where the proceedings
have been commenced after the expiration of the period of one year . . . , shall also
order the return of the child, unless it is demonstrated that the child is now settled in its
new environment.” Hague Convention, art. 12. This defense “is applicable only if more
than one year has elapsed from the wrongful removal before the date of
commencement of these proceedings.” In re Robinson, 983 F. Supp. 1339, 1344–45
(D. Colo. 1997). Robinson held that proving this defense requires “substantial evidence
of the child’s significant connections to the new country.” Id. at 1344 (quoting Hague
27

International Child Abduction Convention; Text & Legal Analysis, 51 Fed. Reg. 10509).
There are, therefore, two relevant factors to this defense – the passage of time and the
age of the child, i.e., whether the child is old enough to develop meaningful connections
to the new environment. Id. at 1345–46.
The children were wrongfully retained on January 20, 2024, and Ms. Centeno
filed her petition on June 11, 2024. Docket No. 1. Therefore, less than one year
passed between the retention and the start of the proceedings in this case.
2. Consent or Acquiescence
Article 13(a) of the Convention provides that the Court is not bound to order the
return of the child if Ms. Centeno “consented to or subsequently acquiesced in the
removal or retention.” Hague Convention, art. 13. Mr. Barco bears the burden to prove
that Ms. Centeno consented or acquiesced by a preponderance of the evidence. 22
U.S.C. § 9003(e)(2)(B). This exception can apply where the record reflects “a
consistent attitude of acquiescence over a significant period of time.” Friedrich, 78 F.3d
at 1070; Filho, 2020 WL 9455201, at *8; Mendez Lynch v. Mendez Lynch, 220 F. Supp.
2d 1347, 1358 (M.D. Fla. 2002) (rejecting authorization to travel to the United States for
vacation as “consent”).
Mr. Barco argues that, at the time the children were sent to the United States,
there was no definite return date and that, therefore, Ms. Centeno’s consent was
effectively unconditional. As such, Mr. Barco maintains that she consented to the
children’s retention in the United States. The Court disagrees. The record shows that
Ms. Centeno intended that her children visit their father for a short period of time and
intended that they return to Canada after the boys’ winter break. Consenting to the
children’s temporary travel is insufficient to show that Ms. Centeno consented to the
28

children’s permanent removal from Canada. See Mendez Lynch, 220 F. Supp. 2d at
1358; Avendano v. Smith, 2011 WL 5223041, at *9 (D.N.M. Oct. 6, 2011) (“in examining
a consent defense, a court should consider what the petitioner actually contemplated
and to what the parties agreed in allowing the child to travel outside his or her home
country”); Baxter v. Baxter, 423 F.3d 363, 371 (3d Cir. 2005) (“The nature and scope of
the petitioner's consent, and any conditions or limitations, should be taken into account.
The fact that a petitioner initially allows children to travel, and knows their location and
how to contact them, does not necessarily constitute consent to removal or retention
under the Convention.”); Fabri v. Pritikin–Fabri, 221 F.Supp.2d 859, 871–72 (N.D. Ill.
2001) (“Many cases begin with a parent’s taking the child away from home for a
vacation or visit with the consent of the other parent, but nevertheless result in a Hague
Convention order compelling the child’s return.”). The Court finds Mr. Barco’s testimony
that, at unspecified times, Ms. Centeno expressed a desire for the children to stay with
him or that she agreed to allow A.B.C. to remain in Colorado is insufficient to meet his
burden of showing by a preponderance of the evidence that Ms. Centeno consented or
acquiesced to the children’s retention. Rather, the Court finds that any suggestions by
Ms. Centeno that A.B.C. remain in Colorado were made under the duress of Mr. Barco
refusing to return either child to Toronto.
3. Grave Risk
The grave risk defense provides that a child wrongfully removed from his habitual
residence or retained should not be returned where there is a grave risk that the return
would expose the child to physical or psychological harm or “otherwise place the child in
an intolerable situation.” Gil-Leyva, 2018 WL 10322064, at *5; West, 735 F.3d at 931.
“Grave risk” requires a “severe . . . level of risk and danger.” Livingstone, 2023 WL
29

8524922, at *2 (quoting West, 735 F.3d at 931). The Tenth Circuit has noted that the
grave risk exception applies in two primary circumstances. First, a court should not
return a child to “a zone of war, famine, or disease.” West, 735 F.3d at 931 n.8.
Second, a court should not return a child to a place where the child would face “serious
abuse or neglect, or extraordinary emotional dependence when the country of habitual
residence for whatever reason may be incapable or unwilling to give the child adequate
protection.” Id. (citing Baxter, 423 F.3d at 373; Blondin v. Dubois, 238 F.3d 153, 162
(2d Cir. 2001); Friedrich, 78 F.3d at 1069).
The first category of grave risk does not apply. Neither party contends that
Canada is experiencing war, famine, or a disease outbreak that poses a grave risk of
harm to the children.
The second category also does not apply. There was evidence that the
children’s medical and dental needs were not being met in Canada because the
children arrived underweight and F.B.C. had multiple cavities in his teeth. 15 The Court
finds persuasive the Fifth Circuit’s decision in Galaviz v. Reyes, 95 F.4th 246, 257–60
(5th Cir. 2024), where the court held that evidence suggesting that, when the children
were brought to the U.S., “the children had ‘rotten molars,’” and “were behind on their
vaccinations,” as well as evidence that the “daughter had hearing loss requiring hearing
aids, and the[ ] son had an astigmatism requiring eyeglasses,” was insufficient to show
a grave risk of harm. Id. 257–59. This was, in part, because of “unrebutted testimony
that [petitioner] sought and obtained some dental treatment for their son, including

15 The Court notes that there was evidence suggesting the F.B.C. did not receive

dental treatment for his cavities in the United States until July 8, 2024. See Docket No.
37-5.
30

obtaining crowns for his molars, attending the dentist five times, and asking
[respondent] for money for dental treatment.” Id. at 257. Here, Ms. Centeno’s
unrebutted testimony was that she was seeking medical and dental care for her children
in Canada. See Docket No. 34-9 at 1–3; Docket No. 34-10 at 1; Docket No. 34-23. In
light of this evidence and the holding in Galaviz, the Court finds that the evidence that
the children were underweight or had tooth decay is insufficient to show by clear and
convincing evidence that the children would face a grave risk of harm if returned to
Canada.
Accordingly, the Court finds that no exception applies and that the children
should be returned to Canada.
III.

CONCLUSION
For the foregoing reasons, it is
ORDERED that the Complaint and Petition for Return of Children [Docket No. 1]

is GRANTED. It is further
ORDERED that respondent shall ensure that A.B.C. and F.B.C. are returned to
Canada at a location acceptable to petitioner on or before December 15, 2024. It is
further
ORDERED that, no later than seven days before the date of A.B.C.’s and
F.B.C.’s departure for Canada, respondent shall file under level one restriction in this
case, D.C.COLO.LCivR 7.2(b), a notice that informs petitioner of the details and date of
the children’s return to Canada. If respondent returns the children to Canada by making
arrangements for the children to fly to Canada, respondent shall include in his notice the
details of the flight to Canada and with whom the children may be traveling. It is further

31

ORDERED that respondent shall ensure that A.B.C. and F.B.C. travel with their
Italian passports and that the passports are delivered to petitioner upon the children’s
return. It is further
ORDERED that petitioner may file a post-judgment motion for the allocation of
costs and expenses consistent with the procedures set forth in Federal Rule of Civil
Procedure 54(d)(1) and D.C.COLO.LCivR 54.1. It is further
ORDERED that this case is closed.
DATED November 25, 2024.
BY THE COURT:
__________________
PHILIP A. BRIMMER
Chief United States District Judge

32