Duran-Peralta v. Luna
Filing
50
OPINION AND ORDER re: 30 MOTION for Summary Judgment . filed by Juana Livia Duran-Peralta, 33 MOTION to Stay briefing of summary judgment pending completion of discovery schedule. filed by Johnny Antonio Luna. The petit ion is granted and the Court orders that IM be returned to the Dominican Republic forthwith. Petitioner seeks costs pursuant to 22 U.S.C. § 9007(b) (3), which provides that "[a]ny court ordering the return of a child pursuant to an action b rought under [ICARA] shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, foster home or other care during the course of proceedings in the action, and transportation cost s related to the return of the child, unless the respondent establishes that such order would be clearly inappropriate." The parties are directed to Jointly convene a call to chambers by no later than December 29, 2017 to establish a briefing schedule for the issue of costs. SO ORDERED. (Signed by Judge Jed S. Rakoff on 12/22/17) (yv)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------- x
IN RE THE APPLICATION OF JUANA LIVIA
DURAN-PERALTA,
16 Civ. 7939(JSR)
Plaintiff/Pet1t1oner,
-vJOHNNY ANTONIO LUNA,
OPINION AND ORDER
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Petitioner Juana Livia Duran-Peralta, a resident and citizen
of the Dominican Republic, brought this action against respondent
Johnny Antonio Luna, a resident and citizen of the United States,
seeking the return of the parties' minor child ("IM")
from the United
States to the Dominican Republic under the Civil Aspects of
International Child Abduction (the "Hague Convention") and the
International Child Abduction Remedies Act
9001 et seq.
No. 12.
("ICARA"), 22 U.S.C.
§
(2000). See Complaint, ECF No. 1; Amended Complaint, ECF
IM was born in the Dominican Republic on August 5, 2015. On
October 12, 2015, respondent took IM to the United States. Respondent
has kept IM in the United States since then despite petitioner's
appeals that respondent return IM to the Dominican Republic, which
culminated in this lawsuit. Familiarity with all prior proceedings is
here presumed.
On May 9, 2017, petitioner moved for summary judgment, ECF
No.
31, but included only a barebones, ten-sentence Rule 56.1
Statement, see ECF No. 32. In support of his opposition to this
motion,
respondent submitted a declaration attesting to facts never
before raised in these proceedings but creating a genuine dispute of
material fact. See Declaration of Johnny Antonio Luna ("Luna Deel."),
ECF No. 34-4. On August 29, 2017, the Court held an evidentiary
hearing that became, without opposition, a bench trial on
petitioner's claims. See Transcript dated Aug. 29, 2017
("Tr.") at
9:7-10. Both petitioner and respondent testified and were provided
with an opportunity to present witness testimony and documentary
evidence.
Following this hearing/trial, the Court invited the parties
to submit proposed findings of fact and conclusions of law and
response briefing. See Tr. at 138:15-139:10. While some facts were
undisputed, determination of many of the material facts turned on the
Court's assessment of the witnesses' credibility, including the
Court's examination of their demeanor. Based on these assessments and
the submitted written and oral evidence, the Court makes the
following findings of fact and conclusions of law.
Factual Background
The parties offer strikingly different accounts of their
relationship. According to petitioner, she and respondent were
romantically involved for several years, during which time she became
pregnant with IM. Respondent, on the other hand, claims that
2
\
petitioner served as a surrogate for him and his wife and that he and
petitioner were never romantically involved.
1
As detailed below, the
Court found the testimony of petitioner considerably more credible
than that of respondent and those who testified on his behalf.2
According to respondent, after he and his wife decided to
look for a surrogate in the Dominican Republic, see Tr. 105:22106:13, he was put in touch with petitioner, who agreed be their
surrogate in exchange for respondent's assistance in bringing her and
her 13-year old daughter to the United States,
id. at 111:9-15,
113:4-7, 119:4-7, 122:22-123:1, 125:18-126:3 (Luna). Respondent
alleged that petitioner "offered herself to [him]
. many times,
not only one time. Many times," id. at 125:15-16, assuring him that
she would get pregnant,
id. at 108:17-19. Respondent testified that
1
Respondent raised this surrogacy argument for the first time in his
opposition to petitioner's motion for summary Judgment. Respondent's
own counsel were informed that petitioner allegedly served as a
surrogate only after counsel had filed a motion to dismiss. See Tr.
at 133:10-20.
The Court had ample reason to doubt the testimony of Justina and
Santiago Echavarria in particular. As an initial matter, both are
potentially biased in favor of respondent because respondent has been
a client of their office "for several years" (albeit as a customer of
the travel agent division). Tr. 81:5-7, 83:12-20 (S. Echavarria). In
addition, Justina Echavarria and respondent's parents are neighbors
in the Dominican Republic. Id. at 61:3-4. Nevertheless, Justina
Echavarria was less than forthcoming about her relationship with
respondent, claiming that the only time respondent had come to the
office before November 5, 2015 was in connection with IM. Id. at
72:19-73:3. And the Court was troubled that Santiago Echavarria
struggled to directly answer the questions put to him. See, e.g., id.
at 83:6-9.
2
3
he and petitioner had sex only one time, as a result of which
respondent became pregnant with IM.
Id. at 109:14-23 (Luna).
Respondent also suggested that he never socialized with petitioner
before she became pregnant, id. at 103:1-3 (Luna), but this
contention is contradicted by his later testimony that, during that
time, he sometimes saw petitioner at the home of another woman, id.
at 108:11-22.
In addition to the belatedness with which respondent raised
his entire "surrogate" story and the many contradictions in
respondent's testimony, the Court finds significant that there was no
written surrogacy agreement, see id. at 112:15-24
(Luna); that
respondent made no effort to help petitioner come to the United
States, see id. at 123:2-12 (Luna)
(he "wanted to do [his] part" of
the alleged bargain but did not); that respondent did not tell his
wife that he slept with the alleged potential surrogates until after
his deposition in this case, see id. at 120:1-7, 120:23-121:11,
121:24-122:21
(Luna); and that respondent is currently seeking
custody of another young child he fathered with a woman living in the
Dominican Republic, whom he does not allege served as a surrogate for
him and his wife, see Plaintiff's Proposed Findings of Fact and
Conclusions of Law Ex. A ("Luna Dep.") ·at 25:1-20, ECF No. 44.
Furthermore, respondent's claim that petitioner bore IM as a
surrogate for respondent and his wife was not corroborated by any
other evidence, and petitioner credibly denied that respondent had
4
ever asked her whether she would be willing to have a child that she
would give up to him and to his wife in the United States. Tr.
14
30:10-
(Duran-Peral ta) .
The Court accordingly finds the following facts based largely
on petitioner's testimony. Petitioner, the mother of IM,
lives with
her eldest daughter in Santo Domingo in the Dominican Republic, where
she has lived her entire life.
Id. at 10:13-17 (Duran-Peralta).
Respondent was also born in Santo Domingo. Id. at 37:20-21
(Duran-
Peralta); id. at 106:9-10 (Luna). He currently lives in the United
States with his wife, to whom he has been married for about ten
years. Id. at 105:16-21, 106:2-4
(Luna). Respondent has five children
in addition to IM: a ten-year old child by his wife, three children
(aged ten,
fourteen or fifteen, and twenty-three) by three different
women who live in the United States, and a one-year old child whose
mother lives in the Dominican Republic. Luna Dep. at 22-25,
44-47.
Petitioner and respondent met in 2012, when he would stop by
the "exchange house" next to where she worked, see Tr.
99:23-24
(Luna), and shortly thereafter began a romantic and sexual
relationship. Id. at 10:20-11:2, 11:7-23 (Duran-Peralta). They
stopped seeing each other at some point in 2013 but resumed their
sexual relationship in or around October 2014. Id. at 12:7-13:22.
Throughout their relationship, petitioner knew that respondent was
married in the United States. Id. at 16:4-6. While respondent was in
the United States, he and petitioner sometimes exchanged affectionate
5
text messages. See, e.g.,
see each other soon.
id. at 126: 20-21
(Luna)
(" [W] e' re going to
I can't wait to get there."); id. at 127:13
("Love, tell me what you want to--"); id. at 128:4-6 ("I remember
that when you spoke,
I was looking at you with desire.
I wanted to
eat you up. ") . 3
When she became pregnant, petitioner quit her job and
respondent financially $Upported her.
Peralta). In June 2015,
Id. at 33:15-17 (Duran-
respondent rented a house for petitioner in
anticipation of IM's birth. Id. at 17:12-18:1, 33:9-11 (DuranPeralta); id. at 111:9-12 (Luna)
Republic on August 5, 2015.
IM was born in the Dominican
Id. at 17:3-4; Defendant's Proposed
Findings of Fact and Conclusions of Law ("Def. Br.") at 3
~
25, ECF
No. 45. Respondent was not in the Dominican Republic when IM was born
but he visited her there for several days about a week after she was
born.
Id. at 18:13-19:2 (Duran-Peralta).
IM had medical problems after her birth, including
neurological complications from a knotted umbilical cord and a skin
condition called scabiasis. Id. at 19:20-20:6 (Duran-Peralta).
Respondent told petitioner that he did not want IM to go to doctors
in Santo Domingo, id. at 21:9-13, and the parties discussed the
possibility of seeking medical treatment for IM in the United States,
The Court did
sent these text
who is actually
cruel guy." Tr.
3
not find credible respondent's explanation that he
messages only because he "can't be nasty to somebody
doing something, a huge favor for me. I can't be a
at 128:22-24.
6
id. at 20:14-17
(Duran-Peralta); see also JUANA0043
(petitioner
asking respondent whether he looked into the "doctor thing")
(August
19, 2015 text message). Respondent told petitioner that his sister,
who is a doctor, would see IM in New York. Id. at 20:25-21:1
Peralta); see also JUANA00045
(respondent telling petitioner that he
would send IM's sleep schedule to his sister)
messages) . 4 Accordingly,
(Duran-
(September 5, 2015 text
in September, petitioner signed what she
understood to be an authorization permitting respondent to bring IM
to the United States. Tr. 38:12-15. This "authorization" most likely
was an application for an American passport, which petitioner and
respondent filled out at the law office of Justina Echavarria.
Id. at
61:14-16 (J. Echavarria)
In October 2015, respondent visited the Dominican Republic
again. When he returned to the United States, on October 12, 2015, he
brought IM with him. Tr. 21:18-20
at 5
~
(Duran-Peralta); see also Def. Br.
44. Petitioner believed that respondent was taking IM to the
United States for just two months for the sole purpose of receiving
medical treatment and that he would return her to the Dominican
Republic in December. See id. at 20:23-21:25.
4
Petitioner did not provide the Court with written translations of
these text messages received as Plaintiff's Exhibit 1. Because these
text messages comprised the majority of the exhibits introduced at
trial, the Court thought it necessary to consider them in its review
of the evidence. To that end, the Court relied on translations of the
messages generously provided by the Southern District of New York
Interpreters Office.
7
In November 2015,
Republic (without IM)
respondent returned to the Dominican
and told petitioner that he needed a new
authorization to take IM to doctors in the United States. Id. at
22:6-12. Petitioner and respondent made another visit to Justina
Echavarria's law office on November 5, 2015 and signed a document
that petitioner believed authorized respondent to seek medical
treatment for IM in the United States but in fact provided that
petitioner waived her maternal rights over IM (the "Release").
While IM was in the United States, petitioner "was
communicating constantly with" respondent.
Id. at 24:19. She inquired
about the status of the doctors' visits and asked respondent to send
pictures and videos of IM, which he did. See, e.g., JUANA00048-50
(text messages dated October 17-20, 2015); JUANA00054
(text messages
dated November 18-20, 2015). She also "constantly" sent "him messages
asking him why [he] didn't bring the girl back." Id. at 24:19-23; see
also JUANA0060
(text mess.age dated December 26, 2015); JUANA00065
(text message dated December 27, 2015). Respondent provided various
reasons for why he could not bring IM back, such as that "he didn't
have any money to travel back to Santo Domingo,
[or]
that he had too
much work." Id. at 25:4-5. Respondent has never returned to the
Dominican Republic with IM. See id. at 24:14-16. Petitioner filed the
instant action on October 11, 2016. See Complaint, ECF No.
Legal Analysis
8
1.
The Hague Convention, to which both the United States and the
Dominican Republic are signatories,
5
was enacted "'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.'" Gitter v.
Gitter,
396 F.3d 124, 129
(2d Cir. 2005)
(quoting Hague Convention,
Preamble, 51 Fed. Reg. at 10,498). The Convention "places at the head
of its obJectives the restoration of the status quo, by means of the
prompt return of children wrongfully removed to or retained in any
Contracting State." Gitter, 396 F.3d at 130
(internal quotation
omitted); see also Hague Convention, art. 1
("The obJects of the
. Convent ion are:
{a)
to secure the prompt return of children
wrongfully removed to or retained in any Contracting State; and (b)
to ensure that rights of custody and of access under the law of one
Contracting State are effectively respected in the other Contracting
States.").
Ozal tin,
ICARA implements the Hague Convention. See Ozalt1n v.
708 F. 3d 355,
Convention and [ICARA]
359-360
(2d Cir. 2013). Significantly, "[t]he
empower courts in the United States to
See, e.g., Moreno v. Basilio Penn, No. 15-CV-2372, 2015 WL 4992005,
at *6 & n.10 (S.D.N.Y. Aug. 19, 2015) (Dominican Republic); Gitter v.
Gitter, 396 F.3d 124, 130 & n.5 (United States) (citing Hague
Conference on International Law: Report on the Second Special
Commission Meeting to Review the Operation of the Hague Convention on
the Civil Aspects of International Child Abduction, 33 I.L.M. 225,
225 (1994)).
5
9
determine only rights under the Convention and not the merits of any
underlying child custody claims." 22 U.S.C. § 9001(b) (4).
"[I]n order to prevail on a claim under the Hague Convention
a petitioner must show that
(1) the child was habitually resident in
one State and has been removed or retained in a different State," and
that the removal or retention was "wrongful" because "(2) the removal
or retention was in breach of the petitioner's custody rights under
the law of the State of habitual residence; and (3) the petitioner
was exercising those rights at the time of removal or retention."
Gitter,
396 F.3d at 130-131.
6
A petitioner must make these showings
by a preponderance of the evidence. 22 U.S.C.
§
9003(e) (1)
6
Article 4 of the Convention provides that "[t)he Convention shall
apply to any child who was habitually resident in a Contracting State
immediately before any breach of custody or access rights." Hague
Convention, art. 4. Article 3 of the Hague Convention provides that:
The removal or the retention of a child is to be
considered wrongful wherea. it is in breach of rights of custody attributed
to a person, an institution or any other body,
either jointly or alone, under the law of the State
in which
the
child was
habitually
resident
immediately before the removal or retention; and
b. at the time of removal or retention those rights
were actually exercised, either jointly or alone,
or would have been so exercised but for the removal
or retention.
The rights of custody mentioned in sub-paragraph a
above, may arise in particular by operation of law
or by reason of a judicial or administrative
decision, or by reason of an agreement having legal
effect under the law of that State.
10
With respect to the first prong, the Hague Convention does
not itself provide any definition of "habitually resident." Gitter,
396 F.3d at 134. Courts in the Second Circuit use the following
approach in determining a child's state of habitual residence:
First, the court should 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. In making this
determination the court should look, as always in
determining
intent,
at
actions
as
well
as
declarations. Normally the shared intent of the
parents should control the habitual residence of
the child. Second, the court should inquire 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, notwithstanding any conflict with the
parents' latest shared intent.
Id. When a child is younger, courts place more emphasis on the
intentions of the parents. See, e.g., Holder v. Holder, 392 F.3d
1009, 1020-1021
(9th Cir. 2004)
("[I]t is practically impossible for
a newborn child, who is entirely dependent on its parents, to
acclimatize independent of the immediate home environment of the
parents."); Whiting v. Krassner, 391 F.3d 540, 550
("[W]hen the situation involves a very young child
(3d Cir. 2004)
. the shared
intent of the parents in determining the residence of their children
[is] of paramount importance.").
Hague Convention, art. 3.
11
In determining IM's habitual residence, the preliminary
question the Court must resolve is whether petitioner's signing the
demo~strates
Release
States permanently.
7
that she intended IM to remain in the United
Respondent argues that that the Release,
"together with [the] circumstances surrounding its signing by the
parties,
serves as a manifestation of the parties' shared
intent as of the last time they shared an intent with respect to the
custody of I.M." Def. Br. at 15
~
130. Notwithstanding the lack of
clarity regarding the circumstances surrounding the execution of the
Release, the Court is left with little doubt that petitioner did not,
in signing the Release, anticipate - let alone intend - that
respondent would retain IM in the United States permanently.
The two-page, as-signed Release provides that, "I
[petitioner] want to declare further that I waive all of my rights
over the girl; and declare, that this is in the best interest of the
girl." Declaration of Valerie K. Ferrier in Support of Defendant's
7
This is true even though respondent removed IM from the Dominican
Republic prior to the signing of the Release. "[T]he text of the
Convention directs courts to the time 'immediately before the removal
or retention,'" In re Kim, 404 F. Supp. 2d 495, 512 (S.D.N.Y. 2005)
(quoting Hague Convention, art. 3), but the Release is probative of
whether the parties' had a shared intention on the earlier date of
removal. In addition, that the Release is invalid under Dominican
law, see Memorandum dated May 30, 2017 at 7, ECF No. 39, is not
disposit1ve. See Guzzo v. Cristofano, 719 F.3d 100, 110 (2d Cir.
2013) ("Regardless of whether the document is enforceable in [state]
court, it is nevertheless clearly probative of the parties['] 'last
shared intent' for the purposes of determining habitual residence
under ICARA." (internal quotation omitted))
12
Motion to Dismiss ("Ferrier Deel.") Ex. B, ECF No. 15 (translation of
Release); see also Def. Trial Ex. 2 (original Release). The Release
further provides that petitioner "designate[s]
[respondent] Johnny
Antonio Luna as a qualified and adequate adult competent to perform
any proceedings to retain the girl if [her]
rights as mother are
terminated." Ferrier Deel. Ex. B. The Release also identifies Luna's
address in New York State.
Id.
Although respondent credibly testified that she did not read
the Release, Tr. 23-24,
respondent is not without evidence that she
might have understood its import. Before petitioner signed the
Release, someone from the Echavarrias'
law firm asked Ramon Antonio
Gilmir.jete, an attorney and notary, to notarize the document.
91:11-15
Id. at
(GilminJete); see also Ferrier Deel. Ex. B (signature of
Gilminjete as notary). GilminJete - who was perhaps the only one of
respondent's witness whom the Court found half-way credible testified that he has known petitioner since she was born. Tr.
20-24
90:15-
(he knows "her mother, her father, her family"). When
GilminJete arrived at the office, he read the document immediately
and asked petitioner "if she knew what she was signing, what she was
about to sign, because she hadn't signed it yet," id. at 91:23-92:4,
and she responded that she knew what she was signing,
id. at 92:5-6.
Gilminjete told her "it says that she is giving away the custody of
the child to the father," and that it was "too strong." Id. at 92:2022. Respondent again told him that "she knew what she was doing." Id.
13
at 92:24-25. Nonetheless, Gilminjete took the document with him to
his office "to maybe give her the opportunity to think it through."
Id. at 93:1-2; id. at 69:16-21
(J.
Echavarria). Petitioner called him
"the next day or two days later" to tell him that he could give the
document to respondent.
Id. at 93:4-8. Gilminjete then returned the
Release to the Echavarrias' office, which sent the document to get an
apostille from the ministry in the Dominican Republic (which is akin
to a verification)
Id. at 69:22-70:9 (J. Echavarria); see Def. Ex. 3
(apostille).
However, even assuming arguendo that, contrary to her
testimony at trial, petitioner was aware that the Release waived her
maternal rights - either because she read the document or because
GilminJete informed her of the document's terms - the evidence still
does not support a finding that petitioner ever intended IM to live
in the United States. 8 Rather, petitioner was told, and believed,
that she was signing the Release so that IM could be seen by doctors
in the United States. Tr. 23:22-24:3 (Duran-Peralta).
8
Petitioner is able to read Spanish, the language in which the
document was written, but she credibly testified that she did not
read the document before she signed it. Tr. 57:11-14, 24:5-6 (DuranPeralta). The Court found her testimony more credible than that of
Justina Echavarria and Santiago Echavarria (Justina's husband, id. at
83:21-25), who testified that petitioner read the Release, id. at
68:11-15 (J. Echavarria), and "expressed" that the purpose of the
Release was to give custody to the respondent so he could keep IM in
the United States, id. at 84:1-17 (S. Echavarria).
14
The Second Circuit's opinion in Guzzo v. Cristofano is
instructive. 719 F.3d 100 (2d Cir. 2013). There, the Second Circuit
held that a separation agreement supported a finding that the parents
intended their child to live in the United States because petitioner
"acknowledged at trial that when he signed the Agreement he
understood (1)
its terms;
(2) that it provided for the child's
residence in New York; and (3) that it would be legally binding,"
notwithstanding petitioner's "hope[] to reconcile with the Mother,"
in which event the terms of the agreement would be revisited." Id. at
104.
There is no evidence that petitioner actually "understood"
her execution of the Release as consent to IM's living with
respondent in the United States. Unlike the Guzzo separation
agreement, the Release does not explicitly provide that IM would live
in New York.
contrast, the
Indeed, it is silent on IM's future residence. By
Guzz~
separation agreement both stipulated that the
child would attend school in White Plains, New York and established a
visitation schedule. 719 F.3d at 104; see also Guzzo v. Cristofano,
No. 11-CV-7394, 2011 WL 6934108, at *9 (S.D.N.Y. Dec. 30, 2011)
(f1nd1ng that the child's habitual residence changed to the United
States because "[f]irst, and most significantly, the parties
documented their shared intention in a Separation Agreement, which
expressly contemplated that the child would live and attend school in
New York with Respondent." (emphases added)).
15
To be sure, the Release could be read as implying that IM
will
~ive
in the United States, but there is no evidence that
petitioner drew this inference. Petitioner was not represented by
counsel when she signed the Release,
9
whereas in Guzzo, both parties
were represented by counsel throughout the negotiation of the
separation agreement, Guzzo, 2011 WL 6934108, at *2. Gimlinjete may
have explained to petitioner that by signing the Release, she gave
custody to respondent, see Tr. 92:20-22, but he apparently did not
actually explain to her that the practical effect of her waiving
custody would be that respondent would take IM to the United States.
There is abundant evidence, on the other hand, that
petitioner signed the Release so that respondent could take IM to
doctors in the United States,
id. at 23:25-24:1, and that respondent
represented to her that he would bring IM back to the Dominican
Republic in December,
id. at 23:14-17.
In addition to petitioner's
testimony, the parties' text message communications while IM was in
the United States confirm that petitioner believed that respondent
Based on the evidence presented at trial, the Court finds
inaccurate respondent's assertion that "petitioner was represented at
the signing [of the Release] by her own attorney, who explained to
her the contents of the waiver, and the implication of signing it."
Defendant's Rule 56.1 Counter-Statement of Facts~ 8, ECF No. 35;
Declaration of Johnny Antonio Luna ~ 6, ECF No. 34-4. Although
Gimlinjete may have offered petitioner advice as a family friend, he
did not actually enter into an attorney-client relationship with her.
Rather, he was retained by respondent's attorneys to notarize the
Release.
9
16
had taken IM to the United States temporarily to visit doctors. On
October 15, 2015, petitioner asked respondent "let me know about the
baby when she is taken to the doctor," to which respondent replied,
"I'll let you know." JUANA0048. She asked again on October 22,
October 30, and November 20 that respondent let her know if he took
IM to the doctor.
Id.; JUANA00051; JUANA0054.
In late December,
petitioner asked respondent whether he had a date planned to bring IM
to the Dominican Republic, as he had told her he would. See
JUANA00060; JUANA00062
("You know that you took her to have a checkup
at the doctor and that you were going to bring her right away.");
JUANA00065
("You know very well that the baby had health problems,
and that is why I allowed you to take her to NY; so that your sister
could get her checked, because the doctors didn't resolve it here.
You told me the day before you left that if the checkups were
finished by the end of November, you would bring her the beginning of
December already.").
While the matter is not free from doubt, the Court, based not
only on the testimony and other evidence themselves but also on its
assessment of the witnesses' demeanor, concludes that petitioner has
demonstrated by a preponderance of the evidence that she did not
intend, when she signed the Release or at any time before then, that
the United States would become IM's habitual residence and that
rather, petitioner continued to believe that respondent would return
IM to the Dominican Republic.
17
It should also be noted that, even on respondent's claim that
petitioner wanted IM to live in the United States, it was on the
condition that respondent fulfill his promise to help petitioner and
her elder daughter move to the United States as well. Such a
conditional intent, in the absence of fulfillment of the condition,
would not support a finding of intent to change IM's habitual
residence. See, e.g., Maxwell v. Maxwell, 588 F.3d 245, 251-252
Cir. 2009)
(4th
(collecting cases where "courts have refused to find a
change in habitual residence because one parent intended to move to
the new country of residence on a trial or conditional basis.");
Moreno v. Basilio Penn, No. 15-CV-2372, 2015 WL 4992005, at *10
(S.D.N.Y. Aug. 19, 2015)
("Even if a parent has consented to removal,
the retention of the child beyond 'certain conditions or
circumstances' agreed upon by the parents may constitute wrongful
removal.'"
2005)))
(quoting Baxter v. Baxter, 423 F.3d 363, 370
(3d Cir.
:o
The Court next finds that the Dominican Republic was IM's
habitual residence at the time of her removal. To begin with, the
io In any event, there is no evidence other than respondent's
testimony that petitioner expected respondent to bring her and her
elder daughter to the United States - either in exchange for her
agreeing to serve as a surrogate or otherwise. To the contrary,
petitioner testified that she believed respondent would continue
paying for the house that he rented and otherwise supporting IM
throughout IM's life, implying that she intended to raise IM in the
Dominican Republic. Tr. 34:11-14.
18
parties shared an initial intent that IM reside in the Dominican
Republic.
In the years preceding IM's birth, the Dominican Republic
was the site of the parties'
relationship. See Delvoye v. Lee, 329
F.3d 330, 334
(explaining that where a petitioner and
(3d Cir. 2003)
respondent had "lived together in in Mexico for nearly a year before
the child was born, a basis existed for finding the child's habitual
residence to be in Mexico.").
Indeed, there is no evidence that
petitioner even once visited respondent in the United States. See
Guzzo, 2011 WL 6934108, at *6 (finding confirmation that parents
intended child to live in New York in "the nature of the parties'
relationship" prior to the child's removal, specifically that
petitioner was opening to relocating permanently to New York while
respondent was not open to moving to Italy). When petitioner became
pregnant,
respondent financially supported her in the Dominican
Republic,
including by paying the rent on her house in Santo Domingo.
Therefore, there is sufficient evidence to conclude that the parties
shared an intent that the Dominican Republic be IM's habitual
residence.
However, "[t]he shared intent of the parents is not
dispositive of a child's habitual residence," and "[a] court must
additionally examine the evidence to determine if it unequivocally
points to the child having acclimatized." Gitter, 396 F.3d at 135.
But the Court finds that IM was "acclimatized" to the Dominican
19
Republic at the time of her removal.
App'x 777, 784
11
See Ovalle v. Perez, 681 F.
(11th Cir. 2017). Here, prior to IM's entry into the
United States, she had never lived anywhere other than the Dominican
Republic. She was living in a house with her mother and older sister,
neither of whom had United States citizenship. See Tr. 34:6-156; In
re Koc,
181 F. Supp. 2d 136, 140 (E.D.N.Y. 2001)
(finding that
Poland, rather than the United States, was the child's habitual
residence in part because the mother did not have permanent resident
alien status in the United States). She also had been seen by doctors
in the Dominican Republic. See id. at 20:1, 21:9-10. "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." Ovalle, 681 F. App'x at
784.
By contrast,
respondent introduced no meaningful evidence
into the record that IM has acclimatized to the United States. To
give more than marginal weight to the fact that IM has been in the
United States for a little over two years would "would be contrary to
the Hague Convention's goal of discouraging abductions by denying to
Even in the absence of a last shared intent, this acclimatization,
on its own, would be sufficient to establish habitual residence. The
Court agrees with Judge Weinstein that where "the parents disagree
regarding the country where the child should live in the future, the
child's pre-removal residence is ultimately crucial in making a
custody determination." A.A.M. v. J.L.R.C., 840 F. Supp. 2d 624, 636
(E.D.N.Y. 2012).
i:
20
the abductor any legal advantage from the abduction." Kijowska v.
Haines, 463 F.3d 583, 588-589 (7th Cir. 2006); see also Diorinou v.
Mezitis, 237 F.3d 133, 142 (2d Cir. 2001)
("[A] parent cannot create
a new 'habitual residence' by the wrongful removal and sequestering
of a child." (internal quotation omitted)); see also Miller v.
Miller, 240 F.3d 392, 400
(4th Cir. 2001)
.12
Therefore, the Court
concludes that the Dominican Republic was IM's habitual residence at
the time of removal.
With regard to the second and third prongs of petitioner's
claim, there can be no genuine dispute that petitioner had lawful
custody and would be exercising those rights but for IM's removal.
Nevertheless,
13
respondent argues that petitioner legally waived her
custody rights under Dominican law and that his removal of IM was
therefore not "wrongful."
This argument is foreclosed by the Court's
previous memorandum opinion, which found that the Release has no
force of law in the Dominican Republic. See Memorandum dated May 30,
2017
("May Mem."), ECF No. 39. To the contrary, that opinion
12
The same is true of the evidence that IM is cared for all day by
respondent's wife, see Tr. 117:10-14, since invariably a child under
the age of three will be looked after throughout the day wherever he
or she lives.
The Convention "defines a wrongful removal as one that 'is in
breach of rights of custody .
under the law of the State in which
the child was habitually resident immediately before the removal or
retention' and that occurred at a time when 'those rights were
actually exercised .
. or would have been so exercised but for the
removal or retention.'" Ozalt1n v. Ozaltin, 708 F.3d 355, 366 (2d
Cir. 2013) (quoting Hague Convention, art. 3).
21
13
specified that "petitioner has custody rights over IM under Dominican
law, and would be exercising those rights but for IM's presence in
the United States,
[such that]
respondent's retention of IM is
'wrongful' under the Hague Convention." Id. at 7.
Respondent tries to avoid this conclusion by relying on a
"Certificate That No Custody Agreement ls In Place." See Def. Br. at
12
~
108. This certificate, dated February 1, 2016, states that as
"there has been no agreement as to the custody of the minor [IM]
. she shall remain in the same status as she presently is under the
care and protection of her father,
until her mother empowers the
Judge of the civil court for children and adolescents of the La Vega
judicial district, to issue a final judgment on the matter." Def.
Trial Ex. 1 (translation); see Def. Br. at 13
~
114. Contrary to
respondent's contention, this certificate does not provide that he
has sole custody of IM.
Instead,
it provides that - as this Court
held - there is no final judgment as to which parent
custody.
(or parents) has
In the absence of such final judgment, petitioner has
custody of IM. See May Mem. at 6-7.
In short, petitioner has established her claim under the
Hague Convention. "If the court determines that a petitioner has
satisfied this burden as to the core two elements - habitual
residence and wrongful retention - the court must ordinarily 'order
the return of the child forthwith.'" Mota v. Castillo, 692 F.3d 108,
113
(2d Cir. 2012)
(quoting Hague Convention, art. 12).
22
However,
if the respondent can successfully establish that
any of the four statutory exceptions applies, then a court is not
bound to order the child's return. Id. The Court therefore considers
whether respondent has established that any exception to the
Convention applies. "[T]he exceptions are to be narrowly read." Id.
(citing Blondin v. Dubois, 189 F.3d 240, 246 (2d Cir. 1999)).
Respondent argues that two exceptions apply. First, under
Article 13 of the Hague Convention, the right to a child's return
secured by the Hague Convention is extinguished if "the person .
having the care of the child
consented to or subsequently
acquiesced in the removal or retention." Hague Convention, art. 13.14
The same factual findings that preclude respondent from showing
rightful removal also preclude finding consent or acquiescence. The
Court credits petitioner's testimony that she did not anticipate that
the Release would result in IM's permanent residence in the United
States. Therefore, she did not consent to or acquiesce in
respondent's removal of IM.
Respondent next argues that even if petitioner has stated a
valid claim under the Convention,
14
IM is now settled in the United
Respondent also suggests that petitioner has "waived" her rights
under the Convention by "knowingly and intentionally waiv[ing] her
parental rights" in signing the Release. See Def. Br. at 13 ~ 116.
There is no such "waiver" exception to the Convention. Moreover, even
if this argument could be properly slotted into one of the
Convention's exceptions, it fails for the same reasons that
petitioner has demonstrated wrongful removal.
23
States such that sending her to the Dominican Republic would not be
in her best interest. Def. Br. at 16
~
133. But this exception is not
applicable here. Article 12 of the Hague Convention allows
(but does
require) a Judicial or administrative authority to refuse to order
the return of a child on the ground that the child is settled in its
new environment only if more than one year has elapsed between the
abduction and the petition for return. See Hague Convention, art. 12;
Blondin, 238 F.3d at 164. As petitioner filed her complaint on
October 11, 2016 - less than a year after the abduction - this
exception is inapplicable.
For the foregoing reasons,
Court orders
~hat
the petition is granted and the
IM be returned to the Dominican Republic forthwith.
Petitioner seeks costs pursuant to 22 U.S.C.
§
9007(b) (3), which
provides that "[a]ny court ordering the return of a child pursuant to
an action brought under
[ICARA] shall order the respondent to pay
necessary expenses incurred by or on behalf of the petitioner,
including court costs, legal fees,
foster home or other care during
the course of proceedings in the action, and transportation costs
related to the return of the child, unless the respondent establishes
that such order would be clearly inappropriate." The parties are
directed to Jointly convene a call to chambers by no later than
December 29, 2017 to establish a briefing schedule for the issue of
costs.
SO ORDERED.
24
Dated:
New York, NY
December
2017
1
¥!
25
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