Cocom v. Timofeev et al

Filing 63

ORDER FINDINGS OF FACT AND CONCLUSIONS OF LAW The Court GRANTS the Petition and ORDERS the immediate return of the Child to Cocom in Belize. Please see Order for all details. Signed by Honorable David C Norton on 1/2/2019. (sshe, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Raquel Margarita Cocom,
Petitioner,
vs.
Andrey Timofeev and Irina Timofeev,
Respondents.

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No. 2:18-cv-002247
ORDER

This matter comes before the court on Raquel Margarita Cocom’s (“Cocom”)
verified petition (the “Petition”) under the Hague Convention on the Civil Aspects of
International Child Abduction (the “Convention”) and the International Child Abduction
Remedies Act (“ICARA”), 22 U.S.C. §§ 9001-11, against her child’s father Andrey
Timofeev (“Timofeev”), and Grandmother, Irina Timofeev (“Grandmother”), as part of
her efforts to have her child minor child (the “Child”) returned to her in Belize, ECF No.
8. The Court GRANTS the Petition and ORDERS the immediate return of the Child to
Cocom in Belize. To this end, the court issues the following findings of fact and
conclusions of law under Fed. R. Civ. P. 52.1 The court also issues a separate return
order covering the details of return and the extension of the preliminary injunction.

1

To the extent that any findings of fact constitute conclusions of law, or vice-versa, they
shall be so regarded.
1

I. FINDINGS OF FACT
Based on the evidence presented at the trial in this matter, the court makes the
following findings of fact:
1.

Cocom is a Belizean citizen who has lived in Belize all her life. ECF No.

54, Proceedings 12/05/2018, Tr. 16:18–24.2 Timofeev is a Russian citizen who moved to
Belize towards the end of 2008. ECF No. 55, Proceedings 12/06/2018, Tr. 71:4–7. At
the time of Timofeev’s relocation to Belize, Grandmother was already living in the
United States as a lawful permanent resident. She became a citizen in 2009. ECF No.
55, Tr. 6:11–13.
2.

Cocom and Timofeev met in Belize in March 2009 and began a romantic

relationship soon after. ECF No. 55, Tr. 73:1–7. The parties have presented conflicting
evidence regarding whether they lived together and whether they had a common law
marriage. Because the court need not rely on these facts in order to decide this case, the
court declines to make a factual finding regarding their living situation or marital status.
3.

While the parties dispute many of the aspects of their relationship, they

both agree that Cocom and Timofeev are the biological parents of the Child, who was
born in Belize in November 2015. Pet.’s Ex. 2. Until her travel to the United States with
Timofeev in 2017, the Child’s only residence was Belize. ECF No. 55, Tr. 108:25–
109:8.

2

The court cites to the official transcripts of the proceedings, which were filed as sealed
documents on ECF. ECF Nos. 54 and 55. The petitioner also requested that a version of
the transcripts with her children’s names and identifying information redacted be made
available, which the court provided. ECF Nos. 58 and 59.
2

4.

The Child is Cocom’s second child. ECF No. 54, Tr. 24:4–5. Her first-

born son, J.J.R., is currently ten years old. Id. J.J.R. is not the biological son of
Timofeev and is not involved in these proceedings.
5.

Early in their relationship, Timofeev told Cocom of his intention to

immigrate to the United States. ECF No. 54, Tr. 25:11–21. At trial he testified that
moving to Belize was always part of his plan to immigrate to the United States, because it
was an English-speaking country close to the United States. ECF No. 55, Tr. 71:9–12.
Cocom testified that, prior to the Child’s birth, she had no problem with Timofeev
immigrating to the United States, but that she intended to remain in Belize with J.J.R. and
her family. ECF No. 54, Tr. 25:11–21.
6.

Grandmother filed Form I-130 with the Department of Homeland Security

(“DHS”) on May 27, 2009, in which she petitioned for Timofeev to (1) receive a visa to
travel to the United States as an unmarried adult son of a naturalized American citizen,
and (2) become a lawful permanent resident. ECF No. 55, Tr. 28:7–30:6; Pet.’s Ex. 15.
Grandmother testified that she has also paid for the immigration process for Timofeev
and the Child. ECF No. 55, Tr. 15:20–24. Timofeev testified that, at around the time of
this initial filing, he considered himself in a common law marriage with Cocom, though
the Child was not yet born. ECF No. 55, Tr. 106:15–107:2.
7.

Shortly after the Child’s birth in November 2015, Timofeev again

mentioned his plan to immigrate to the United States. ECF No. 54, Tr. 25:25–26:4.
Cocom explained at trial that she had been open to this idea, but only if she, Timofeev,
the Child, and J.J.R. all immigrated to the United States together as a family. Id.

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8.

Around the same time as this conversation, Timofeev completed an online

Form DS-260 that he electronically signed and filed with DHS on May 9, 2016. Pet.’s
Ex. 14. Cocom testified that she did not know that Timofeev had been filing any of these
immigration papers. ECF No. 54, Tr. 67:5–6; 69:15–17; 91:6–11.
9.

After Timofeev e-filed his Form DS-260, Grandmother filed Form I-864

with DHS affirming that she was sponsoring Timofeev to become a lawful permanent
resident. Pet.’s Ex. 12. This time, however, Grandmother included the Child on the
immigration form as an immediate family member of Timofeev, who was the principal
immigrant she would be sponsoring. Id. The Child was a derivative beneficiary eligible
to receive a visa to travel to the United States to become a lawful permanent resident.
ECF No. 55, Tr. 32:2–33:5. Around the same time, Timofeev also had completed the
Form DS-260 online for the Child. Pet.’s Ex. 13.
10.

Cocom testified that she did not know that Timofeev had started the

process for the Child to receive a green card. ECF No. 54, Tr. 30:20–22; 49:1–10; 67:5–
6; 69:15–17; 91:6–11. She claims she did not know about this process until Timofeev
and the Child were already in the United States. ECF No. 54, Tr. 30:23–31:2.
11.

In July 2016, the Child was examined by a doctor as part of the paperwork

for her immigration to the United States. As Cocom’s expert explained, medical exams
are a part of the immigration process. ECF No. 55, Tr. 38:15–23. The immigrantapplicants go to certain pre-qualified local doctors who complete the medical forms.
ECF No. 55, Tr. 38:24–39:14. The completed forms are then generally returned directly
to the local consulate by the examining physician, or are placed in a sealed envelope to be
returned to the consulate by the petitioning immigrant. Id.
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12.

The parties contest the facts surrounding this doctor’s exam. Cocom

testified that on July 6, 2017, Timofeev called her and asked her to bring the Child to
Belize City. ECF No. 54, Tr. 62:3–21. When she arrived, she did not have the Child’s
“clinical card” with her, which lists all the Child’s immunizations and other medical
information. Id., Pet.’s Ex. 3. Timofeev then instructed Cocom to return home, obtain
the clinical card, and return to Belize City. ECF No. 54, Tr. 62:3–21. During the
doctor’s exam, Cocom testified that she questioned the doctor regarding the Child’s shots
because the Child already had an appointment scheduled for October of that year to
receive her vaccinations. Id. The doctor responded that the Child would be in the United
States at that time. Id. Cocom claims that she asked Timofeev to explain what the doctor
meant after the exam finished. Id. She says that Timofeev explained that the Child was
getting shots that the government of Belize could not afford to give to all Belizeans. Id.
13.

Timofeev testified that his and the Child’s medical evaluations occurred

on the same day. ECF No. 55, Tr. 87:3–4. Timofeev testified that, after the medical
examination, the doctor spoke with him and Cocom. ECF No. 55, Tr. 87:7–10.
Timofeev testified that, at that appointment, he “explained we are applying for,
permanent residence for me, my child . . .” ECF No. 55, Tr. 87:10–11.
14.

The medical forms from this visit provided to the parties by DHS were

signed by Timofeev, but not by Cocom. Id. The clinical card referenced by Timofeev in
her testimony does not show a July 5, 2017 medical visit. Pet.’s Ex. 3. Instead, it shows
on page three that the Child received additional vaccinations on July 6, 2017. Though the
treating physician, Dr. Teresita, Mendez appears to have stamped both documents with
the same stamp, neither party called the treating physician as a witness. No other
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evidence in the record explains what occurred during this medical appointment, so the
Court is left only with the parties’ competing accounts.
15.

In addition to the medical evaluation, Timofeev was required to complete

an interview at the American Consulate in Belize to immigrate to the United States. As
Cocom’s expert explained at trial, while the interview can be long and detailed, most
immigrants under the family-based immigration system have a “DMV experience” where
the immigrant appears at a window and answers a handful of questions under oath in
several minutes. ECF No. 55, Tr. 40:12–41:24. While the immigrant-applicant must
appear for the interview, children under fourteen are not required to appear. ECF No. 55,
Tr. 58:3–10. This would mean that neither the Child, who was two years old at the time,
nor Cocom’s son, who was only about nine years old, likely would have been required to
appear at the consulate to complete the visa process. Additionally, Cocom’s expert
explained that only those with an appointment notice can appear and enter the consulate
and that consulates are “very strict about appointment notices.” ECF No. 55, Tr. 58:11–
59:15. However, the expert admitted that he was not familiar with and could not testify
regarding the interview process at the American Consulate in Belize.
16.

The parties’ accounts of the visainterview also diverge. Timofeev testified

that his interview was ultimately scheduled for June 2017 at the American Consulate in
Belize City, Belize. ECF No. 55, Tr. 87:23–88:1. He testified that he had received an
appointment letter that listed his and the Child’s names. ECF No. 55, Tr. 88:1–12.
Timofeev explained that he went to the consulate with the Child and Cocom, but that
Cocom stayed outside of the security checkpoint with his laptop. ECF No. 55, Tr. 113:7–
15. Cocom did not enter the consulate at that time. ECF No. 55, Tr. 88:7–12. Timofeev
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testified that Cocom eventually entered the consulate and was present for a portion of the
interview, which was conducted in front of a window. ECF No. 55, Tr. 89:1–22.
Timofeev claims that the interviewer explained that only Timofeev and the Child would
be travelling to the United States and that Cocom might not see the Child for several
years. ECF No. 55, Tr. 90:14–91:3.
17.

By contrast, Cocom testified that she was at the United States Embassy in

Belize on July 11, 2017, but was not formally interviewed or put under oath. ECF No.
54, Tr. 59:9–60: 61:9–12; 24; 68:5–8. She claimed that Timofeev was the only one to
answer any questions that were asked. ECF No. 54, Tr. 60:17–24; 61:13–24; 66:14–15.
She testified that she never gave consent to an embassy official for the Child to travel to
the United States permanently, and that she did not raise any objections while at the
embassy because of Timofeev’s bad temperament and her lack of understanding of the
process. ECF No. 54, Tr. 66:6–15; 67:3–16; 69:6–18. Additionally, Cocom testified that
Timofeev explained to the official at the consulate that Cocom would be travelling to the
United States on a tourist visa, leading her to believe that the whole family would be
getting tourist visas. ECF No. 54, Tr. 60:6–61:8.
18.

The immigration paperwork received by the parties from the State

Department and DHS and provided to the Court as exhibits does not contain any
interview appointment letter. ECF No. 55, Tr. 112:14–113:6. Likewise, the Court record
does not contain any documentation about the visa interview to corroborate either side’s
version of events. Further, the physical documentation that the court does possess—
namely the Child’s medical records and the immigration application forms submitted by
Timofeev and Grandmother—did not require Cocom’s signature or otherwise indicate
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that she must have given her approval for them to be submitted and for the Child to
obtain a visa.
19.

Following the completion of the immigration process, Timofeev and the

Child received visas to travel to the United States and to become lawful permanent
residents. ECF No. 55, Tr. 48:9–13; Pet.’s Ex. 19. Cocom testified that she was not
aware of this, instead thinking that they had received tourist visas. ECF No. 54, Tr.
49:11–16. Cocom’s immigration law expert explained the differences between tourist
and immigration visas. ECF No. 55, Tr. 54:7–55:18. Generally speaking, the type of
immigrant visa received by Timofeev and the Child is used to permanently relocate to the
United States. Id. Conversely, a non-immigrant, “tourist,” or “B” visa that Cocom
thought the family would receive is usually for a six-month visit and “comes with this
implicit promise that at the end of that six months, you’re going to return [to your home
country].” Id.
20.

Timofeev testified that his and the Child’s visas for permanent residency

status were approved in mid-October 2017, and that he informed Cocom of this
immediately. ECF No. 55, 92:6–22. Cocom testified that she was not made aware of the
permanent residency visas and was rather told on November 4, 2017 that Timofeev and
the Child would be departing for a two week visit the following day.
21.

On November 4, 2017, Grandmother purchased tickets for Timofeev and

the Child to fly from Belize to Miami the following day. ECF No. 55, Tr. 17:13–19;
113:22–114:1. The parties testified when they arrived at the airport the next day,
November 5, 2017, the Belizean immigration authorities required a signed document
from Cocom authorizing the Child to fly out of the country. ECF No. 55, Tr. 118:1–10.
8

The document was drafted and signed at the airport shortly before the flight. Id. The
document authorizes Timofeev to take the Child out of Belize, but is silent as to the
length of the trip or the scope of the authorization. Resp. Ex. 8.3 Cocom testified that
neither she nor Timofeev wrote the form, but that it was provided to them at the airport.
22.

Cocom testified throughout the trial that she and Timofeev had agreed that

Timofeev would take the Child to the United States for two weeks to visit Grandmother
and would then return home. By contrast, Timofeev claimed that the plan at the time of
his departure was that he and the Child would travel to the United States and then petition
to bring Cocom and her son, J.J.R., into the United States legally. ECF No. 55, Tr. 14:4;
100:21–101:1; 114:12–115:1 117:21–25.
23.

Timofeev and the Child arrived in Miami on November 5, 2017, and

presented themselves to Customs and Border Protection for admission into the country.
Pet.’s Exs. 6–7. Cocom’s immigration expert testified that travellers entering the United
States with children are not required to present any parental consent documentation—a
child’s passport and visa will suffice. ECF No. 55, Tr. 47:11–23. At that point,
Timofeev and the Child became lawful permanent residents, and several weeks later they
received their permanent resident cards (“green cards”) in the mail. ECF No. 55, Tr.
45:15–22.

3

Timofeev offered this document as an exhibit at trial; however, Cocom objected to the
introduction of the exhibit because Timofeev had failed to provide a copy to her counsel
prior to trial as required by the Court’s Scheduling Order. ECF No. 41; ECF No. 55, Tr.
7:24–8:5; 98:7–15. As a result, the Court did not admit the exhibit into evidence, though
testimony as to its contents is in the record, subject to Cocom’s objection. ECF No. 55,
Tr. 98:20–99:18.
9

24.

After arriving in the United States, Cocom would routinely speak with

Timofeev and the Child over the phone. ECF No. 55, Tr. 115:21–116:11. After a brief
stay in Marion County, South Carolina, the Child began living with Timofeev and
Grandmother in Georgetown County, South Carolina, where she currently lives. ECF
No. 55, Tr. 17:20–21.
25.

Cocom testified that upon learning that Timofeev would not be returning

with the Child two weeks after the child departed Belize, she visited INTERPOL in
Belize to request information about the location of Timofeev and the Child. ECF No. 54,
Tr. 33:14–34:11; Pet.’s Ex. 9. She did so on November 21, 2017, shortly after the alleged
fourteen-day return deadline passed on November 19, 2018. ECF No. 54, Tr. 34:4–6.
She also visited a governmental agency, Human Development, which serves as the
Belizean Central Authority under the Hague Convection. ECF No. 54, Tr. 34:12–16;
Pet.’s Ex. 11. At that time, she applied for return of the Child under the Hague
Convention. ECF No. 54, Tr. 34:12–24; Pet.’s Ex. 11. Though Cocom’s Hague
Convention application is dated January 26, 2018, Pet.’s Ex. 11, Cocom testified that she
was required to return to the Belizean Central to provide additional information and sign
the application, Tr. 54, 34:25–35:6. Cocom attributes this later signature to processing
delays by the governmental agency. Id.4

4

Because she properly filed her Hague Convention Petition within one-year of the
Child’s abduction such that the “well-settled” exception of Article 12 does not apply, any
delay in filing the application is immaterial. See Katona v. Kovacs, 148 F. App’x 158,
161 (4th Cir. 2005) (“[W]e have found no cases that reduce the time frame in which a
parent must act under the Convention. Indeed, to do so appears to directly conflict with
the intent of the Convention’s drafters who adopted a one-year limitation.”).
10

26.

The next day, November 22, 2017, Cocom visited the Orange Walk Police

Department and filed a police report. ECF No. 54, Tr. 35:7–24; Pet.’s Ex. 8. In that
police report, she stated that the parties had an agreement for the Child to return from the
United States after two weeks, but that Timofeev violated the agreement by failing to
return the Child to Belize. Pet.’s Ex. 8.
27.

Cocom also testified that during this time she continued to ask Timofeev

to return the Child to Belize. She testified that when she would ask Timofeev to return
the Child, she would remind him that they had a verbal agreement that the Child would
only be gone from Belize for two weeks. ECF No. 36, Tr. 36:10–13. At trial, Cocom
played a voice recording that Cocom had made of a telephone conversation between her
and Timofeev, in which she can be heard telling him that he had agreed to return with her
daughter in two weeks, and she wanted to bring him home. Cocom relies on that
recording to support her argument that Timofeev had agreed to return the child in two
weeks. However, the court was unable to discern all of Timofeev’s answers during that
phone call. At most, the court heard Timofeev state that “I do not come back” and “I do
not just send anything until she gets these papers.” ECF No. 54, Tr. 43:14–17. Thus, the
court declines to rely on this recording as conclusive evidence that Timofeev had in fact
agreed to only be gone with the child for two weeks.
28.

Belizean officials completed the application for the Petition on or about

January 26, 2018, after which it was transmitted to the United States Department of State.
Cocom then obtained pro bono counsel in the United States to locate the Child and to file
the Petition. INTERPOL in Washington, D.C. confirmed on June 26, 2018 that the Child
is now living with Timofeev and Grandmother in Georgetown, South Carolina. Cocom’s
11

petition before this court, filed on August 14, 2018, alleges wrongful detention of the
Child, in violation of the Convention and ICARA. ECF No. 1.
29.

On August 14, 2018, Cocom also filed an ex parte emergency motion for a

temporary restraining order, requesting that the court order Timofeev and Grandmother
to surrender their passports to the court and to not remove the Child from South Carolina.
On August 17, 2018, the court granted in part and denied in part the motion. ECF No.
15. The order was served upon defendants on August 20, 2018, the same day that the
U.S. Marshal’s service confiscated the passports of Timofeev, Grandmother, and the
Child. On August 28, 2018, the court held a hearing at which counsel for petitioner and
respondent Timofeev were present. The court ordered that the terms of the TRO be
issued as a preliminary injunction.
30.

The court held a trial on the merits of this case on December 5–6, 2018.
II. CONVENTION AND APPLICABLE U.S. LAW

Cocom’s Petition alleges that Timofeev wrongfully retained the Child, in
violation of the Convention and ICARA.
The relevant portions of the Convention, with emphasis added, are as follows:
Article 7
Central Authorities shall co-operate with each other and promote cooperation amongst the competent authorities in their respective States to
secure the prompt return of children and to achieve the other objects of
this Convention.
In particular, either directly or through any intermediary, they shall take
all appropriate measures —
a to discover the whereabouts of a child who has been wrongfully
removed or retained;
b to prevent further harm to the Child or prejudice to interested parties by
taking or causing to be taken provisional measures;
c to secure the voluntary return of the Child or to bring about an amicable
resolution of the issues;
12

f to initiate or facilitate the institution of judicial or administrative
proceedings with a view to obtaining the return of the Child and, in a
proper case, to make arrangements for organizing or securing the effective
exercise of rights of access;
g where the circumstances so require, to provide or facilitate the provision
of legal aid and advice, including the participation of legal counsel and
advisers;
Article 11
The judicial or administrative authorities of Contracting States shall act
expeditiously in proceedings for the return of children.
If the judicial or administrative authority concerned has not reached a
decision within six weeks from the date of commencement of the
proceedings, the applicant or the Central Authority of the requested State,
on its own initiative or if asked by the Central Authority of the requesting
State, shall have the right to request a statement of the reasons for the
delay. . . .
Article 12
Where a child has been wrongfully removed or retained in terms of Article
3 and, at the date of the commencement of the proceedings before the
judicial or administrative authority of the Contracting State where the
Child is, a period of less than one year has elapsed from the date of the
wrongful removal or retention, the authority concerned shall order the
return of the Child forthwith. The judicial or administrative authority
Where the judicial or administrative authority in the requested State has
reason to believe that the Child has been taken to another State, it may
stay the proceedings or dismiss the application for the return of the Child.
Article 13
Notwithstanding the provisions of the preceding Article, the judicial or
administrative authority of the requested State is not bound to order the
return of the Child if the person, institution or other body which opposes
its return establishes that —
a the person, institution or other body having the care of the person of the
Child was not actually exercising the custody rights at the time of removal
or retention, or had consented to or subsequently acquiesced in the
removal or retention; or
b there is a grave risk that his or her return would expose the Child to
physical or psychological harm or otherwise place the Child in an
intolerable situation.
The judicial or administrative authority may also refuse to order the return
of the Child if it finds that the Child objects to being returned and has
attained an age and degree of maturity at which it is appropriate to take
account of its views.
13

In considering the circumstances referred to in this Article, the judicial and
administrative authorities shall take into account the information relating
to the social background of the Child provided by the Central Authority or
other competent authority of the Child’s habitual residence.
Article 20
The return of the Child under the provisions of Article 12 may be refused
if this would not be permitted by the fundamental principles of the
requested State relating to the protection of human rights and fundamental
freedoms.
Hague Conference on Private Int’l Law, 19 I.L.M. 1501, 1502 (1980).
The relevant portions of United States law that codified the Convention, with
emphasis added, are as follows:
22 USC § 9003. Judicial remedies
(a) Jurisdiction of courts. The courts of the States and the United States
district courts shall have concurrent original jurisdiction of actions arising
under the Convention.
(b) Petitions. Any person seeking to initiate judicial proceedings under the
Convention for the return of a child or for arrangements for organizing or
securing the effective exercise of rights of access to a child may do so by
commencing a civil action by filing a petition for the relief sought in any
court which has jurisdiction of such action and which is authorized to
exercise its jurisdiction in the place where the Child is located at the time
the petition is filed.
(c) Notice. Notice of an action brought under subsection (b) of this section
shall be given in accordance with the applicable law governing notice in
interstate child custody proceedings.
(d) Determination of case. The court in which an action is brought under
subsection (b) of this section shall decide the case in accordance with the
Convention.
(e) Burdens of proof
(1) A petitioner in an action brought under subsection (b) of this section
shall establish by a preponderance of the evidence-(A) in the case of an action for the return of a child, that the Child has
been wrongfully removed or retained within the meaning of the
Convention; and
(B) in the case of an action for arrangements for organizing or securing the
effective exercise of rights of access, that the petitioner has such rights.
(2) In the case of an action for the return of a child, a respondent who
opposes the return of the Child has the burden of establishing-14

(A) by clear and convincing evidence that one of the exceptions set forth
in article 13b or 20 of the Convention applies; and
(B) by a preponderance of the evidence that any other exception set forth
in article 12 or 13 of the Convention applies.
22 U.S.C. § 9004. Provisional remedies
(a) Authority of courts. In furtherance of the objectives of article 7(b) and
other provisions of the Convention, and subject to the provisions of
subsection (b) of this section, any court exercising jurisdiction of an action
brought under section 9003(b) of this title may take or cause to be taken
measures under Federal or State law, as appropriate, to protect the wellbeing of the Child involved or to prevent the Child's further removal or
concealment before the final disposition of the petition.
(b) Limitation on authority. No court exercising jurisdiction of an action
brought under section 9003(b) of this title may, under subsection (a) of
this section, order a child removed from a person having physical control
of the Child unless the applicable requirements of State law are satisfied.
22 U.S.C. §§9003–9004.
III. DISCUSSION
The Convention5 is intended “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.” Maxwell v. Maxwell, 588 F.3d
245, 250 (4th Cir. 2009). The Convention seeks to preserve the status quo—the return of
children to their home countries for further proceedings—when appropriate. Miller v.
Miller, 240 F.3d 392, 398 (4th Cir. 2001). Thus, it is not the underlying custody case at
issue that is being decided under the Convention; rather, a court adjudicating a petition
under the Convention must determine whether the Child should be returned home for

5

Both the United States and Belize are parties to the Hague Convention. The United
States became a party when it ratified the Hague Convention in 1988. See Convention,
art. 37. Belize became a party through accession. Id. art. 38. The United States accepted
Belize’s accession, and the Hague Convention entered into force between the two
countries in 1989. See Hague Conference on Private Int’l Law, Acceptance of
Accession, http://www.hcch.net/ (last visited Dec. 15, 2018).
15

custody proceedings. Id. at 398. To succeed on a petition for return of a child under the
Convention, the petitioner must prove by a preponderance of the evidence that: (1) the
Child habitually resided in the petitioner’s country of residence when the Child was
removed; (2) the removal breached petitioner’s rights of custody under the law of his or
her home state; and (3) that the petitioner had been exercising his or her rights of custody
at the time of removal. Miller, 240 F.3d at 398 (citing the Convention, art. 3). Even if a
petitioner proves her prima facie case, the respondent might still prevent the removal of
the Child by asserting certain affirmative defenses—namely, that the petitioner consented
to the Child’s removal. The court considers each element in turn.
A. Cocom’s Prima Facie Case
1. Child’s Habitual Residence in Belize
To secure the return of the Child to Belize, Cocom must first demonstrate that
Belize was the country of the Child’s habitual residence before the she was removed to
the United States. “The framers of the Hague Convention intentionally left ‘habitual
residence’ undefined, and intended that the term be defined by the unique facts in each
case.” Maxwell v. Maxwell, 588 F.3d 245, 251 (4th Cir. 2009). Under the two-part
framework developed by federal courts to determine the Child’s habitual residence, the
court must consider: (1) “whether the parents shared a settled intention to abandon the
former country of residence”; and (2) “whether there was an actual change in geography
coupled with the passage of an appreciable period of time, one sufficient for
acclimatization by children to the new environment.” Id. (internal quotations omitted).
a. Parent’s Shared Intent

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“Focusing on intentions gives contour to the objective, factual circumstances
surrounding the Child’s presence in a given location” and whether this presence “is
intended to be temporary rather than permanent.” Gitter v. Gitter, 396 F.3d 124, 132 (2d
Cir. 2005). “The Ninth Circuit’s opinion in Mozes v. Mozes has served as a guide for
federal courts in determining parental intentions in Hague Convention cases.” Maxwell,
588 F.3d at 251.6 In Mozes, the Ninth Circuit established three broad categories of
factual scenarios. The first is “where the court finds that the family as a unit has
manifested a settled purposed to change habitual residence, despite the fact that one
parent may have had qualms about the move.” Mozes v. Mozes, 239 F.3d 1067, 1076
(9th Cir. 2001). This includes those situations where “both parents and the Child
translocate together under circumstances suggesting that they intend to make their home
in the new country.” Id. The Ninth Circuit found that when a court determines “that a
family has jointly taken all the steps associated with abandoning habitual residence in one
country to take it up in another, they are generally unwilling to let one parent’s alleged
reservations about the move stand in the way of finding a shared and settled purpose.”
Id. The second category of cases includes those “where the child’s initial translocation
from an established habitual residence was clearly intended to be of a specific delimited
period,” in which cases court have “generally refused to find that the changed intentions

6

In Maxwell, the Australian father filed a petition under the Convention after the mother
took their children back to her home in the United States. The father claimed that the
parents had a shared intent that the children would permanently relocate to Australia.
The Fourth Circuit found that the children’s habitual residence was still the United States,
due to the fact that the mother sought permission from the children’s school in the United
States to allow them to be absent for a portion of the spring semester but then to return to
school in March, and that she had maintained her car insurance in the United States.
Maxwell at 253.
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of one parent led to an alteration in the child’s habitual residence.” Id. Category three
falls in between these two, and involves those situations were “the petitioning parent had
earlier consented to let the child stay abroad for some period of ambiguous duration.” Id.
Cases that fall into the third category are highly fact-dependent. “Following Mozes,
another category of cases developed . . . [those] 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.” Maxwell at 251. Courts have considered the
following factors as evidence of parental intent:
Parental employment in the new country of residence; the purchase of a
home in the new country and the sale of a home in the former country;
marital stability; the retention of close ties to the former country; the
storage and shipment of family possession; the citizenship status of the
parents and children; and the stability of the home environment in the new
country of residence.”
Id. at 252.
This case clearly does not fall under the first category of intent, as both parents
did not “translocate” with the Child, which could evidence a settled intention to establish
their home elsewhere. Depending on which parent’s narrative the court believes, this
situation either falls into the second or fourth category—that Cocom agreed to allow the
Child to leave Belize for a delineated amount of time, or that Cocom agreed that the
Child could move to the United States on a conditional basis. This determination of
whether Cocom intended that the Child leave Belize to reside permanently in the United
States requires the court to conduct the same analysis as it would to determine whether
Timofeev has proven that Cocom consented to the Child’s removal, which is one of the
Convention’s affirmative defenses that he has raised. Thus, the court addresses in totality
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the question of whether Cocom intended that the Child relocate permanently to the
United States, or consented to such a move, at the conclusion of this order during its
analysis of Timofeev’s potential affirmative defenses. The court next considers the
remaining elements of Cocom’s prima facie case and finds that she has proven these
elements by a preponderance of the evidence.
b. Change in Geography and Acclimatization
If the court finds that the parents did share an intent that the Child be moved to
the United States, it must then consider whether the Child has actually acclimatized to a
new location. Here, the Child has clearly changed geography. In considering
“acclimatization,” the court should not be looking to see “simply whether the Child’s life
in the new country shows some minimal degree of settled purpose,” but should instead
consider whether the “child’s relative attachments to the countries have changed to the
point where [ordering the Child’s return] would now be tantamount to taking the Child
out of the family and social environment in which its life has developed.” Mozes, 239
F.3d at 1081. “Federal courts have considered school enrollment, participation in social
activities, the length of stay in the relative countries, and the Child’s age to determine the
extent of a child’s acclimatization to the new country of residence.” Maxwell, 588 F.3d
at 254.
The parties have not submitted much evidence regarding the extent to which the
Child has acclimated to life in the United States. The Child has resided in the United
States for about one year, which is roughly one-third of her short life. However, she has
only been here for an entire year because it took over six months for her case to be
processed through the correct international and United States government channels, and
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another five months for it to be fully heard and decided upon by this court, even though
Cocom initiated the process to secure the Child’s return only two weeks after the Child’s
departure. Additionally, the court notes that due to the Child’s young age, she has yet to
enroll in school or build any sort of social life in this country independent of Timofeev
and Grandmother. Thus, although the Child has changed geography, the court finds that
the Child has not acclimatized to life in the United States to such an extent that returning
the Child to Belize would be improper under the Convention.
2. Wrongful Removal in Violation of Cocom’s Rights of Custody
The next element of Cocom’s prima facie case requires that she demonstrate that
the Child’s removal violated her rights of custody. The court finds that she has
sufficiently proven this element. Article 3 of the Convention considers removal of the
Child to be wrongful where “it is in breach of rights of custody attributed to a person . . .
under the law of the State in which the Child was habitually resident immediately before
the removal or retention.” Convention, 19 I.L.M. at Art. 3(a). Article 5 defines “rights of
custody”7 as including “rights relating to the care of the person of the Child and, in
particular, the right to determine the Child’s place of residence.” Id. Art. 5(a). “[R]ights
of custody for purposes of Article 3 of the Convention means rights of custody at the time
of removal.” White v. White, 718 F.3d 300, 307 (4th Cir. 2013). Courts should rely on
the law of the state in which the Child was habitually resident to determine whether the

7

Courts have consistently found that the term “Rights of Custody” under the
Convention does not mean the same thing as the legal “Custodial Rights” over a child
that might be awarded by a local family court. See Abbott v. Abbott, 560 U.S. 1, 20
(2010) (“Ordering a return remedy does not alter the existing allocation of custody rights
[ ] but does allow the courts of the home country to decide what is in the Child’s best
interests.”).
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petitioner possessed rights of custody at the time of the Child’s removal. See Bader v.
Kramer, 445 F.3d 346, 349–50 (4th Cir. 2006) (applying German law to determine
whether petitioner had rights of custody over the German child). Under Belizean law,
biological parents have “rights relating to the care of the person of the Child.” See
Convention, art. 5(a). Specifically, Belizean family law mandates that “[e]very parent
shall have parental responsibility for his [or her] child.” Belize Families and Children
Act Ch. 173, Rev. Statutes of Belize 2011, § 6(1).
There is no dispute that Cocom is the Child’s biological mother, as she is listed on
the Child’s birth certificate. The Child was residing under Cocom’s care in Belize until
she left for the United States. Tr. 54:24–55:10, 93:23–94:4, 109:12–23. Most
importantly, Timofeev conceded at trial that Cocom had rights of custody over the Child,
although he maintained for the record his position that Cocom did not have sole custodial
rights. Thus, the court finds that Cocom had rights of custody under the Convention at
the time when the Child was removed to the United States, and has thus proven the
second element of her prima facie case.
3. Cocom Exercising Custodial Rights
Lastly, Cocom must establish by a preponderance of the evidence that she was
exercising her rights of custody at the time the Child was removed from Belize.
Convention, art. 3. Cocom presented sufficient evidence at trial to allow the court to
conclude that she was caring for the Child, who was living with her, at the time that the
Child was removed from Belize.
B. Timofeev’s Affirmative Defenses

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Even if the court finds that Cocom successfully proved her prima facie case, the
court might still choose not to return to child to Belize if Timofeev can assert one of the
enumerated affirmative defenses to removal. ICARA, the United States law that codified
the Convention, provides that:
(2) In the case of an action for the return of a child, a respondent who opposes
the return of the Child has the burden of establishing-(A) by clear and convincing evidence that one of the exceptions set forth in
article 13b or 20 of the Convention applies; and
(B) by a preponderance of the evidence that any other exception set forth in
article 12 or 13 of the Convention applies.
22 U.S.C § 9003.
Article 13(b) of the Convention provides for the respondent to establish that
“there is a grave risk that [the Child’s] return would expose the Child to physical or
psychological harm or otherwise place the Child in an intolerable situation.” Article 20
states that the “return of the Child [ ] may be refused if this would not be permitted by the
fundamental principles of the requested State relating to the protection of human rights
and fundamental freedoms.” Timofeev has not put forth any facts or arguments regarding
either of these affirmative defenses. The other exception in Article 13 is that the court
may refuse to remove the Child if the respondent establishes that “the person [ ] having
care of the Child was not actually exercising the custody rights at the time of removal or
retention, or had consented to or subsequently acquiesced in the removal or retention.”
The court has addressed the “exercise of custody rights” issues above. Thus, the court
must consider whether Cocom consented or acquiesced to the Child’s removal.
1. Consent or Acquiescence

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Neither the Hague Convention nor its implementing statute, ICARA, define
consent or acquiescence. Padilla v. Troxell, 850 F.3d 168, 175 (4th Cir. 2017). Yet the
Fourth Circuit has found that “[c]onsent and acquiescence are two separate and
analytically distinct affirmative defenses.” Id. (internal quotations omitted). “Whereas
the consent defense concerns the petitioner’s conduct before the contested removal or
retention, the acquiescence defense concerns whether the petitioner subsequently agreed
to or accepted the removal or retention.” Id.
The Third Circuit has noted that,
[o]ften, the petitioner grants some measure of consent, such as permission
to travel, in an informal manner before the parties become involved in a
custody dispute. The consent and acquiescence inquiries are similar,
however, in their focus on the petitioner’s subjective intent. In examining
a consent defense, it is important to consider what the petitioner actually
contemplated and agreed to in allowing the Child to travel outside its
home country. . . . 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.
Baxter v. Baxter, 423 F.3d 363, 371 (3d Cir. 2005). Indeed, “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.” Fabri v. Pritikin-Fabri, 221 F.Supp.2d 859, 871 (N.D. Ill. 2001).
The evidence at trial clearly demonstrated that Cocom did not acquiesce to the
Child’s permanent retention in the United States after Timofeev and the Child arrived
here. She testified that she continually asserted to Timofeev that she wanted him to
return the Child to Belize, which was confirmed by her recordings of their phone

23

conversations and the fact that she initiated this action two weeks after her child’s
departure.
Regarding whether Cocom had consented to the Child’s permanent relocation to
the United States before she departed Belize, Cocom testified that her agreement with
Timofeev regarding where the Child and the whole family would reside shifted with time.
She claims that she and Timofeev first agreed that they would obtain visas to immigrate
to the United States together, but that Timofeev then changed plans and only applied for a
visa for himself and the Child without informing her. She claims that Timofeev first told
her on November 4, 2017 that Grandmother had bought tickets for him and the Child to
fly out of Belize the very next day. At this point, according to Cocom, the parents no
longer had a shared intention that the Child would permanently relocate to the United
States. Rather, as Cocom testified, the parents agreed that Timofeev would only travel to
South Carolina with the Child for two weeks to visit his family, after which Timofeev
would return with the Child.
By contrast, Timofeev testified that the plan was always for him and the Child to
come to the United States first, obtain green cards, and then apply to have Cocom and
J.R.R. join them in the United States. He testified that Cocom was fully aware of this
plan when he and the Child left Belize. Timofeev testified that he and Cocom had
expected that he and the Child would receive their green cards about two weeks after
arriving in the United States, at which point they would be able to begin the process to
bring over Cocom and her son. At the trial, Timofeev explained that this must be the
basis for Cocom’s “two week” theory, implying that she had agreed to the plan until it
took more than two weeks for him and the Child to receive their green cards, at which
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point she abandoned the original plan and initiated proceedings to ensure the return of the
Child. The operative fact in this case is that Timofeev has not proceeded with the
immigration process for Cocom and J.R.R to move to the United States, even though he
received his green card one year ago in December 2017. According to his narrative, this
promise to pursue immigration status on behalf of Cocom and her son was part of the
original plan. Yet at trial, Timofeev testified that he has since abandoned that plan
because Cocom initiated this proceeding against him. ECF No. 55, Tr. 116:20–118:19.
The physical evidence admitted at trial does not conclusively support one
narrative over the other, and the court finds both stories to be plausible. Determining
intent/consent here ultimately requires choosing between the parties’ competing
testimonies. Normally, when faced with a situation like this—where the physical
evidence does not conclusively prove the parties’ intent and the court must rely solely on
competing plausible testimonies—the court would turn to the burden of proof to choose
between the different narratives. In other words, if a petitioner bears the burden to prove
her case by the preponderance of the evidence and fails to put forth evidence outside of
her own testimony that convinces the court that it should believe her testimony over that
of the respondent, then the court will usually find that the petitioner has failed to prove
her case by the preponderance of the evidence. Cocom bears the burden to prove by a
preponderance of the evidence that she and Timofeev had not shared a settled intention
that the Child relocate permanently to the United States. On the other hand, Timofeev
bears the burden to prove by a preponderance of the evidence that Cocom consented to
the Child’s removal in order successfully assert “consent” as an affirmative defense.

25

As far as the court can tell, it must engage in roughly the same analysis to
determine intent under the petitioner’s prima facie case as it would to determine consent
under the respondent’s affirmative defense, except that these analyses are purportedly
supposed to be conducted under different burdens of proof. The pertinent case law, while
providing substantial guidance on determining a parent’s intent and determining whether
a parent provided consent, has not clarified how and when the burden shifts from the
petitioner to the respondent to prove this intent/consent issue. However, the court need
not reach a conclusion regarding Cocom’s intent/consent because, even if the court relied
on Timofeev’s version of events, the court would still order the return of the Child due to
Timofeev’s violation of the conditions of Cocom’s consent. Thus, the court declines to
make determinative findings on: (1) whether Cocom proved that she did not intend for
the Child to relocate permanently to the United States, or (2) whether Timofeev proved
that Cocom consented to the Child’s relocation.
2. Condition of Alleged Consent was Violated
When considering whether a petitioner consented to the Child’s removal, the
court must “evaluate what the petitioner contemplated and agreed to, as well as the nature
and scope of consent, including any conditions or limitations.” Padilla v. Troxell, 850
F.3d 168, 176 (4th Cir. 2017); see also Darin v. Olivero-Huffman, 746 F.3d 1, 15 (1st
Cir. 2014) (“What the petitioner actually contemplated and agreed to, as well as the
nature and scope of the petitioner’s consent—including any conditions or limitations—
should be taken into account.”). “The inquiry does not necessarily end with the
petitioner’s consent to the Child’s removal, [and if] the petitioner agrees to a removal
under certain conditions or circumstances and contends those conditions have been
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breached, the court must [ ] examine any wrongful retention claim.” Baxter v. Baxter,
423 F.3d 363, 371 (3d Cir. 2005). Additionally, “the court retains the discretion to order
return even if one of the [petitioner’s affirmative defenses] is proven.” Convention, art.
18; see Feder v. Evans-Feder, 63 F.3d 217, 226 (3d Cir. 1995) (“We note that the
exceptions are narrowly drawn, lest their application undermines the express purposes of
the Convention. Indeed, the courts retain the discretion to order return even if one of the
exceptions is proven.”).
Here, if Timofeev and Cocom had agreed that he and the Child would relocate to
the United States first and that Timofeev would then petition for Cocom and J.R.R. to
immigrate to the United States, as Timofeev claims, then Cocom’s consent to allow the
Child to move to the United States was conditional on Timofeev subsequently pursuing
the immigration proceedings for Cocom and J.R.R. This condition was not met; as such,
the consent, if it ever did exist, has been invalidated.
Timofeev testified that he had moved to Belize with the intent to eventually
immigrate to the United States, and that he initially applied for a visa before developing a
serious romantic relationship with Cocom. Thus, when Timofeev applied, he used a
particular form, which differed from the one that he would have used if he was applying
as a married person on behalf of himself, his wife, and his child. Tr. 32:16–33:6. If he
had married Cocom “while he was awaiting the availability of a visa, he would have
needed to notify the [ ] Department of State, and they would re-cateogrize him.” Tr.
33:13–16. Specifically, had he tried to file an application on behalf of himself, Cocom,
the Child, and J.R.R., he would have been transferred from the F1 Visa category to the F3
visa category, which has an additional wait time of four to five years. Tr. 33:19–21.
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Timofeev did not do this; rather, he chose to add only the Child as a dependent to his
pending application. Timofeev also testified that he believed it would be easier for him
to file visa applications for Cocom and J.R.R. once he and the Child had received their
green cards. Based on the complicated nature of Timofeev’s visa application, the court
finds it reasonable to believe that he and Cocom had decided that Timofeev and the Child
would travel to the United States first when their visas were approved, and that Cocom
and her son would apply to come to the United States after Timofeev and the Child
received their green cards.
It has been over a year since Timofeev and the Child moved to the United States,
and Timofeev has not fulfilled his alleged promise to help Cocom and her son immigrate
to the United States, even though Cocom’s consent was conditional upon her ability to be
reunited with her daughter in the United States. Timofeev claims that he had always
planned to bring over Cocom and J.R.R., but that he changed his mind when she initiated
these proceedings against him in November 2017. While the court understands that
Timofeev might have been upset that Cocom initiated legal proceedings against him, the
court finds that, given the high stakes of this situation, Timofeev’s response to Cocom’s
actions was unreasonable and inexcusable. Cocom’s decision to file proceedings for her
daughter’s return to Belize does not justify Timofeev reneging on his promise to pursue a
visa for her to come to the United States, if that really had been the arrangement as he
testified.
Under the Convention, the court must consider all of the “conditions” of consent.
Here, the court finds that a crucial condition of Cocom’s alleged consent was violated
and should be remedied. The court’s decision is also motivated by the reality that, by
28

bringing the Child to the United States but not fulfilling his promise to also bring Cocom,
he has essentially deprived Cocom from seeing the Child for the remainder of her
childhood. Cocom, who is proceeding in this court in forma pauperis with pro bono
counsel, is not financially capable of making frequent visits to the United States to visit
her child.8 Without making a determination regarding which of the parties’ factual
narratives are accurate, the court finds that, even if it relied on Timofeev’s version of
events, Timofeev violated the condition of Cocom’s consent, which renders the consent
invalid.
Thus, the court finds that the Child has been wrongfully detained in the United
States in violation of the Convention and GRANTS Cocom’s Petition, ECF No. 1. The
court ORDERS the following:
(1) Timofeev is to immediately return the Child to Cocom in Belize to allow the
authorities there to make judicial determinations regarding custody of the Child..
The court will issue a separate and un-redacted order contemporaneously with this
order including more details about the timing and logistics of that return.
(2) Timofeev is ordered to cooperate with Consular officials from the United States
and Belize to the extent that his assistance is needed to obtain travel documents
for the Child.

8

And, as Cocom’s expert testified at trial, she might have difficulty obtaining a tourist
visa to the United States after the immigration authorities see that she is coming to visit
her young child who has permanent residency in the United States; in other words, the
expert testified that if Cocom applied for a tourist visa the immigration authorities would
likely suspect that she was actually coming to the United States under the ruse of a tourist
visa with the intent to stay permanently with her child. Tr. 64:9–18.
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(3) Respondents, or any others acting on their behalf or at their direction, shall not
remove the Child from this court’s jurisdiction absent further order of this court.
They shall not relocate the residence of the Child.
(4) Failure of respondents to comply with this order will result in contempt
proceedings. See 18 U.S.C. § 401 (providing that a federal court “shall have
power to punish by fine or imprisonment, or both, at its discretion, such contempt
of its authority, and none other, as . . . [d]isobedience or resistance to its lawful
writ, process, order, rule, decree, or command”).

AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
January 2, 2018
Charleston, South Carolina

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