Cevallos Sarzosa v. Vergara Enriquez

Filing 67

MEMORANDUM OPINION AND ORDER ENTERING FINDINGS OF FACT AND CONCLUSIONS OF LAW (Signed by Judge Jeffrey V Brown) Parties notified. (GeorgeCardenas, 3)

United States District Court
Southern District of Texas

ENTERED

In the United States District Court
for the Southern District of Texas

August 28, 2024
Nathan Ochsner, Clerk

GALVESTON DIVISION
═══════════

No. 3:24-cv-89
═══════════

ALLAN ANDRES CEVALLOS SARZOSA, PETITIONER,
v.
CRYSTER DENNISSE VERGARA ENRIQUEZ, RESPONDENT.
══════════════════════════════════════════

MEMORANDUM OPINION AND ORDER
ENTERING FINDINGS OF FACT AND
CONCLUSIONS OF LAW

══════════════════════════════════════════

JEFFREY VINCENT BROWN, UNITED STATES DISTRICT JUDGE:
This case arises under the Hague Convention on the Civil Aspects of
International Child Abduction (the “Hague Convention”), T.I.A.S. No. 11670,
as implemented by the International Child Abduction Remedies Act
(“ICARA”), 102 Stat. 437, 22 U.S.C. §§ 9001-11. The Hague Convention seeks
to address “the problem of international child abductions during domestic
disputes,” Abbott v. Abbott, 560 U.S. 1, 8 (2010), and its chief objective is “to
secure the prompt return of children wrongfully removed to or retained in
any Contracting State.” Hague Convention Art. 1.

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The petitioner, Allan Andres Cevallos Sarzosa, contends that his
daughter, KACV,1 was wrongfully removed from Ecuador and withheld in the
United States by her mother, the respondent, Cryster Dennisse Vergara
Enriquez. Dkt. 1. On August 14, 2024, the court conducted an 11-hour final
hearing on the petition.
After careful consideration of the record, including the admitted
exhibits and the testimony the witnesses, the parties’ arguments, and the
applicable law, the court submits the following findings of fact and
conclusions of law under Fed. R. Civ. P. 52(a).2 For the reasons stated below,
the court DENIES the petition for return.
I.

Procedural Background
Mr. Cevallos filed this case on March 28, 2024. Dkt. 1. The court

ordered a show-cause hearing to take place April 17. Dkt. 6. By agreement of
the parties at the show-cause hearing, a final hearing was then set for May
22, but was later reset for June 27. Minute Entry 04/17/2024, Dkt. 19.
At the outset of the June 27 final hearing, a conflict developed between
Ms. Vergara and her counsel. While mindful of the Hague Convention’s call

Pursuant to Federal Rule of Civil Procedure 5.2, the child’s name has been
redacted in all filings before the court. The initials KACV are used in lieu of her full
name.
1

Any findings of fact that are also, or only, conclusions of law are so deemed.
Any conclusions of law that are also, or only, findings of fact are so deemed.
2

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for swift action, the court reset the hearing to permit Ms. Vergara to seek new
counsel. Minute Entry 06/27/2024. Ms. Vergara then moved for courtappointed counsel. Dkt. 29. In light of the numerous factual disputes and the
gravity of the remedy the petitioner sought, the court granted the motion and
appointed pro bono counsel for Ms. Vergara. Dkt. 30. The court then held a
final evidentiary hearing on August 14, 2024. Except for Ms. Vergara and her
retained expert,3 all witnesses testified in Spanish remotely from Ecuador
through interpreters present in the courtroom. Ms. Vergara testified in
person through an interpreter. Her expert testified remotely, but in English.
II.

Findings of Fact
Each parent’s narrative of the relevant events differs substantially from

the other’s, and the court found neither to be completely credible. Piecing
together all the evidence, and assigning each piece of evidence the credibility
it deserves, the court finds as follows:
A.

Background Facts

1.

Mr. Cevallos and Ms. Vergara are the biological parents of KACV.

Mr. Cevallos objected to the court hearing Ms. Vergara’s expert’s testimony
and moved to strike her designation. The court heard the expert’s testimony, but it
ultimately played no role in the court’s decision.
3

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2.

The couple was involved in an on-again, off-again dating

relationship for several years. They were never married. They are both
citizens of Ecuador.
3.

Mr. Cevallos works as an administrator for a private security

company in Ecuador.
4.

Ms. Vergara previously operated a family-owned restaurant in

Ecuador with two locations. While she lived in Ecuador, Ms. Vergara
operated one location; her father operated the other.
5.

Mr. Cevallos is married to Lanie Espinosa and has two other

children by her. Mr. Cevallos, Ms. Espinosa, and their two children live in
Ecuador.
B.

September 2021–July 2022: Ms. Vergara moves to the
United States

6.

In September of 2021, after a years-long process, Ms. Vergara

was awarded status as a lawful permanent resident of the United States and
received a green card. Mr. Cevallos was aware that Ms. Vergara had applied
for a green card and did not object to her application.
7.

Ms. Vergara learned she was pregnant with KACV around the

same time she received her green card.

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8.

In preparation for her move to the United States, Ms. Vergara

closed her location of the family-owned restaurant. Her father continued to
operate the other location.
9.

In February 2022, Ms. Vergara moved to the United States. After

briefly living with family in Georgia, she moved to New Jersey.
10.

In the spring of 2022, Ms. Vergara prepared to have her baby in

New Jersey. She moved into an apartment, applied for and received
Medicaid, and purchased a crib, a stroller, and a used car.
11.

KACV was born in New Jersey on May 18, 2022.

12.

Mr. Cevallos was working in Ecuador and was not present for the

birth. He traveled to New Jersey to meet KACV a few weeks later. He sent
between $2,000–$3,000 per month to Ms. Vergara after the baby was born.
13.

Ms. Vergara and KACV lived together in an apartment in New

Jersey following the birth. KACV made regular visits to a pediatrician in New
Jersey. Ms. Vergara credibly testified that she always intended to live
permanently in the United States with KACV.
C.

July 2022–December 2022: Ms. Vergara & KACV
travel to Ecuador

14.

Ms. Vergara and KACV traveled to Ecuador on July 31, 2022.

KACV was about two months old.

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15.

Ms. Vergara and KACV first moved into a short-term rental paid

for by Mr. Cevallos. About a month later, the pair then moved into a leased
home, also paid for by Mr. Cevallos.
16.

Initially, Ms. Vergara intended to remain in Ecuador for three

months, and then return to New Jersey in October so that KACV could
receive a battery of scheduled vaccinations. Dkt. 61-10 at 2. But Ms. Vergara
altered her plans and intended to remain in Ecuador with KACV until
December or January.
17.

While in Ecuador, KACV saw both Mr. Cevallos and her paternal

grandmother, Rosa Cevallos, almost daily. KACV also received care from a
full-time nanny, Mariuxi Jurado.
18.

In December 2022, Mr. Cevallos, Ms. Vergara, and KACV

traveled together to New York City. The trio then returned to Ecuador for
Christmas.
D.

January 2023–June 2023: Ms. Vergara & KACV
remain in Ecuador under coercion

19.

In January 2023, Mr. Cevallos placed both Ms. Vergara’s green

card and KACV’s passport in his office without Ms. Vergara’s knowledge.
20.

After Ms. Vergara learned that Mr. Cevallos had taken the

documents, she demanded they be returned. Mr. Cevallos refused.

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21.

On January 27, 2023, Ms. Vergara traveled to and entered Mr.

Cevallos’s office to retrieve the documents. When building security realized
she was in the office without Mr. Cevallos’s permission, Ms. Vergara threw
the documents out of the office window to a waiting friend. The pair then
drove away and were pursued by building security. After being chased for
several miles by car, the security agents intentionally rammed their vehicle
into Ms. Vergara’s and retrieved the documents. Dkt. 61-6 (photos of damage
to Ms. Vergara’s car).
22.

Also in January of 2023, Mr. Cevallos registered KACV as a

citizen of Ecuador without the knowledge or permission of Ms. Vergara.4
23.

Apart from a five-day vacation with Mr. Cevallos to Cancun,

KACV and Ms. Vergara remained in Ecuador from January 2023–June
2023.

Under Ecuadorian law, persons born abroad to a mother or father born in
Ecuador are automatically Ecuadorian citizens at birth. CONSTITUCIÓN POLÍTICA DE
LA REPÚBLICA DEL ECUADOR 2008, ch. 2, art. 7. However, Ecuadorian children born
abroad must be registered in order to exercise their rights as citizens. See ACTS OF
CIVIL STATUS: BIRTH REGISTRATION, Embassy of Ecuador in the Kingdom of
the
Netherlands
(last
visited
Aug.
26,
2024),
http://www.embassyecuador.eu/site/index.php/en/actos-de-estadocivil?showall=1&limitstart=; Dkt. 64 at 144:15–145:9.
4

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E.

June 2023: The family’s trip to Florida and removal of
KACV

24.

In June 2023, Mr. Cevallos, Ms. Vergara, and KACV traveled to

Florida.
25.

Mr. Cevallos, Ms. Vergara, and KACV had confirmed tickets for

a return flight from Miami to Ecuador on June 17, 2023. But an argument
erupted between Mr. Cevallos and Ms. Vergara at the airport, and police were
compelled to intervene. According to the police report, Ms. Vergara
maintained that she wished to remain with KACV in the United States while
Mr. Cevallos wished for the trio to return to Ecuador. Dkt. 36-10.
26.

Mr. Cevallos feared that pursuing legal action at the airport

could result in the state taking temporary custody of KACV. He decided to fly
back to Ecuador as scheduled. Ms. Vergara then flew to Galveston with KACV
the next day to live with a friend.
27.

KACV has remained in Galveston since June 18, 2023.

III. Conclusions of Law
A.

The Hague Convention and ICARA

The Hague Convention seeks to “address the problem of international
child abductions during domestic disputes.” Monasky v. Taglieri, 589 U.S.
68, 71 (2020) (internal quotation marks omitted). The United States and
Ecuador are both signatories to the Hague Convention. ICARA establishes

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the obligations of the United States under the Hague Convention. 22 U.S.C.
§§ 9001 et seq.
The Hague Convention “requires the prompt return of a child
wrongfully removed or retained away from the country in which she
habitually resides.” Monasky, 589 U.S. at 72. To show that the removal of a
child was wrongful under the Hague Convention, the petitioner must prove
by a preponderance of the evidence that: (1) the child was retained
somewhere other than the child’s habitual residence; (2) the retention was
in breach of the petitioner’s rights of custody under the laws of the country
of habitual residence; and (3) the petitioner was exercising those rights at the
time of retention. Hague Convention arts. 3, 12. But even if the removal was
wrongful, “a court may still deny a petition if the respondent proves one of
several narrow affirmative defenses to wrongful removal or retention.”
Delgado v. Osuna, 837 F.3d 571, 577 (5th Cir. 2016).
The petitioner must establish each of the three elements for wrongful
removal by a preponderance of the evidence. Id.
B.

Habitual Residence

“Determination of ‘habitual residence’ is perhaps the most important
inquiry under the Convention.” Murphy v. Sloan, 764 F.3d 1144, 1150 (9th
Cir. 2014) (internal quotation omitted). The Supreme Court has held that

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“the place where a child is at home at the time of removal or retention, ranks
as the child’s habitual residence.” Monasky, 589 U.S. at 77. But determining
where a child is “at home” is, in many cases, no easy task. A trial court is
charged with conducting “a fact-driven and case-specific examination into
where the child is at home, at the time of removal.” Morales v. Sarmiento,
2023 WL 3886075, at *8 (S.D. Tex. June 8, 2023). No single fact is
dispositive. Monasky, 589 U.S. at 78.
Mr. Cevallos offers an appealingly simple position as to KACV’s
habitual residence. KACV was born in the United States, moved to Ecuador
as soon as both she and Ms. Vergara were healthy enough to travel, and
remained there until the time of removal. As KACV lived in Ecuador for 11 of
the first 13 months of her life, Mr. Cevallos argues, Ecuador was her home,
and there could be “no other place . . . that could have constituted a habitual
residence.” Dkt. 25 at 5.
Ms. Vergara’s position is, in many respects, more complicated. She
contends that KACV’s habitual residence was, and has always been, the
United States. Ms. Vergara contends: (1) KACV was clearly “at home” in the
United States during the first months of her life; (2) KACV visited Ecuador
for a specific, limited period from July 2022–December 2022; and (3) KACV

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and her mother were then effectively coerced to remain in Ecuador—against
her mother’s will—from January 2023–June 2023.
The parties’ positions bring two preliminary issues to the forefront of
the habitual-residence analysis: (1) whether KACV was initially “at home” in
the United States, and (2) whether Ms. Vergara, and by extension KACV,
were coerced to live in Ecuador beginning in January 2023.
1.

KACV was “at home” in the United States as of July
2022.

Ms. Vergara contends that the correct framing of the habitualresidence inquiry is whether KACV’s habitual residence changed from her
“original roots in the United States.” Dkt. 36 at 10. Indeed, “[w]here there is
no dispute as to what the child’s country of habitual residence was as of a
certain date, it is appropriate for the court to reframe the question in terms
of whether the country of habitual residence changed after that date.”
Rodriguez v. Lujan Fernandez, 500 F. Supp. 3d 674, 702 (M.D. Tenn. 2020).
Therefore, it is relevant for the court to consider whether KACV was initially
“at home” in the United States prior to her time in Ecuador.
The evidence clearly demonstrates that KACV’s habitual residence as
of July 2022 was the United States. Ms. Vergara’s time in New Jersey was
marked with all the trappings of a mother preparing to welcome a child into
a permanent home. She obtained a green card, moved to a new apartment,
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applied for and received Medicaid, regularly visited a local physician, and
purchased a stroller and a crib. Ms. Vergara also abandoned, to a large
degree, her life in Ecuador. She closed her restaurant, sold personal
belongings, and moved out of her apartment. Mr. Cevallos presents no
credible evidence, beyond his own testimony, that Ms. Vergara’s trip to the
United States was anything but permanent.
During the first two months of KACV’s life, Ms. Vergara clearly
intended to remain in the United States and raise her child there. KACV was
“at home” in the United States as of July 2022.
2.

Ms. Vergara was coerced to remain in Ecuador
from January 2023–June 2023.

Jumping ahead in time, it is also pertinent for the court to consider
whether Ms. Vergara, and by extension KACV, were coerced to remain in
Ecuador.
“Habitual residence is not established when the removing spouse is
coerced involuntarily to move to or remain in another country.” Loftis v.
Loftis, 67 F. Supp. 3d 798, 808 (S.D. Tex. 2014). The Supreme Court has
specifically instructed that evidence that “an infant lived in a country only
because a caregiving parent had been coerced into remaining there” should
“figure in the calculus.” Monasky, 589 U.S. at 78. It certainly does so here.

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The preponderance of the evidence shows that Ms. Vergara, and by
extension KACV, were coerced to remain in Ecuador from January 2023–
June 2023. First, the record strongly suggests that Mr. Cevallos stole and
subsequently hid Ms. Vergara’s green card and KACV’s passport in his office.
While Mr. Cevallos contends that Ms. Vergara consented to the documents
being stored in a “safe place” at his office, the fact that Ms. Vergara felt she
had to scheme to steal them back undercuts this assertion. Mr. Cevallos does
not contest that on January 27, 2023, Ms. Vergara: (1) entered his office
without permission; (2) threw the travel documents out the window when
discovered by security; and (3) fled Mr. Cevallos’s security agents in a mileslong car chase. It defies reason that Ms. Vergara would engage in such highrisk behavior if she had consented for her travel documents to be safely
stored in the office. See Dkt. 61-6 (photos of damage to Ms. Vergara’s car).
Second, Mr. Cevallos (1) obtained an apostille5 on KACV’s birth
certificate and (2) registered KACV as an Ecuadorian citizen without Ms.
Vergara’s consent. See Dkt. 63-7 (Ecuadorian birth registry dated January
19, 2023, containing signature of Mr. Cevallos, but not Ms. Vergara). These

An “apostille” is a “standard legal certificate attesting that the signatures,
seals, or stamps are authentic on a public document used in a foreign country.”
Black’s Law Dictionary (12th ed. 2024).
5

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two acts, both discretely executed, meant that Mr. Cevallos’s consent would
be required for KACV to leave Ecuador.6
The fact that Mr. Cevallos withheld Ms. Vergara’s and KACV’s travel
documents and secretly took action to prevent Ms. Vergara from unilaterally
leaving Ecuador with KACV, together with court’s assessment of Ms.
Vergara’s credibility, leads the court to conclude that Ms. Vergara was
coerced to remain in Ecuador from January 2023–June 2023. See In re
Application of Ponath, 829 F. Supp. 363, 367 (D. Utah 1993) (finding no
change in habitual residence when a short-term trip was extended by means
of coercion); Morales, 2023 WL 3886075, at *8 (“[C]oercion can undermine
shared intent to settle in a country.”).
3.

KACV’s time in Ecuador from July 2022–
December 2022 was insufficient to change her
habitual residence.

Having addressed the two preliminary issues, one question remains for
the court: Was KACV’s presence in Ecuador from July 2022 to December
2022 sufficient to change her habitual residence from the United States to
Ecuador?

Under Ecuadorian law, both parents must consent before their child can
travel outside the country. Ecuadorian Code of Childhood and Adolescence
(“ECCA”) 109. See also Vera Revelo v. Canizalez Cedeno, 625 F. Supp. 3d 529, 538
(W.D. La. 2022) (analyzing ECCA); Dkt. 64 at 85:6–85:8 (“Our law establishes that
no minor can travel without the consent of their parents.”).
6

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This inquiry requires analysis of “a wide range of facts” to “determine
whether an infant’s residence in [the new country] has the quality of being
‘habitual.’” Monasky, 589 U.S. at 81. While the Supreme Court has made
clear that an actual agreement between the parents is not required, the
analysis may properly begin with evidence of the parents’ shared intent. See
Gallegos v. Garcia Soto, 2020 WL 2086554, at *3 (W.D. Tex. Apr. 30, 2020)
(noting that Monasky complemented existing Fifth Circuit precedent, which
called for fact-intensive analysis, beginning with the parents’ shared intent);
Smith v. Smith, 976 F.3d 558, 563 (5th Cir. 2020) (approving of district court
analysis which began with the parents’ shared intent before moving on to a
fact-intensive determination).
The evidence does not suggest a firm, shared intent between the
parents for KACV to permanently abandon her home in the United States to
live in Ecuador. Nor does the evidence suggest a clear shared intent for KACV
to visit Ecuador merely for a “specific, delimited period.” Dkt. 36 at 10.
Rather, this case falls into a difficult category of “in between” cases in which
the child travels abroad “for some period of ambiguous duration.” Mozes v.
Mozes, 239 F.3d 1067, 1077 (9th Cir. 2001). In such cases, where the “exact
length of the stay [is] left open to negotiation,” discerning the intent of the
parties can prove especially difficult. Id.; Berezowsky v. Ojeda, 765 F.3d 456,

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467 (5th Cir. 2014) (“The mere fact that the parents have consented for the
child to move to a new country does not prove that they share the necessary
intent to make that new location the child’s habitual residence.”).
In such “ambiguous duration” cases, courts seek to determine whether
the child would perceive her “stay in [the new country] to be merely a
temporary journey” or, instead, would perceive a “settled purpose to leave”
the prior country and make a new home. Karkkainen v. Kovalchuk, 445 F.3d
280, 287 (3d Cir. 2006). The answer to this inquiry is not necessarily timedependent. “The concept of ‘settled purpose’” does not “require an intention
to stay indefinitely, and may in fact be for a limited period, precipitated by
various motivations.” Blackledge v. Blackledge, 866 F.3d 169, 180 (3d Cir.
2017) (cleaned up). At bottom, “[a]ll that is necessary is that the purpose of
living where one does has a sufficient degree of continuity to be properly
described as settled.” Id.
Reviewing the evidence, nearly every facet of KACV’s time in Ecuador
straddles the line between “temporary journey” and “settled purpose.”
o Communication of Intent: In June 2022, the couple began
planning, via text message, for Ms. Vergara to visit Ecuador. Dkt.
61-10 at 2. She originally texted that she would “stay for a couple
of months” but needed to “be back by October because [KACV’s]

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next vaccines are scheduled for October 27.” Id. Yet just one
month later, as the couple was weighing the benefits of renting a
furnished apartment for Ms. Vergara and KACV in Ecuador, Ms.
Vergara suggested initially “renting a furnished one” and then
“after a year change [to unfurnished] and buy things little by
little.” Dkt. 62-1 at 59 (emphasis added). No other text messages
reveal a firm plan for the length of KACV’s stay in Ecuador.7
o Living Arrangement: KACV first lived in an AirBNB in
Ecuador, suggesting a finite stay. But she then moved to a rental
home with a one-year lease, suggesting an intent to settle in
Ecuador.

After the final hearing, the court granted Mr. Cevallos’s motion to admit a
post-trial exhibit: a forensic analysis of his cell phone which he contends proves
that the text messages Ms. Vergara offered into evidence, Dkt. 61-10, are “patently
false.” Dkt. 64 at 9:3; see also Id. at 42:9–16 (Mr. Cevallos testifies the messages
are “absolutely false. Forged. Manipulated.”). The court is not so convinced. Ms.
Vergara’s WhatsApp messages in Dkt. 61-10 are dated June of 2022. The forensic
report, which allegedly disproves the veracity of these messages, searched for
messages beginning in July of 2022. Dkt. 62-1 at 12, 17. The forensic report alone
does not disprove the authenticity of the messages in Dkt. 61-10. Nevertheless, as
neither party presented a complete message history of the parties’ critical
conversations in the summer of 2022, this factor is given little weight by the court.
The court also notes that though it admitted the forensic analysis, its
trustworthiness remains dubious as it had no sponsoring witness and is, the court
acknowledges, hearsay. In the final hearing, trusting its own ability to assign each
piece of evidence the weight it deserved, the court admitted exhibits it likely would
not have admitted in a jury trial.
7

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o Familial Ties: While in Ecuador, KACV saw her father, Mr.
Cevallos, and maternal grandmother, Rosa Cevallos, almost
daily, suggesting settled purpose. Yet, there is no evidence that
Ms. Vergara’s family in the United States said their goodbyes to
KACV, or to Ms. Vergara, suggesting the family anticipated their
return, especially in light of Ms. Vergara’s permanent-resident
status and KACV’s status as a native U.S. citizen.
o Personal Belongings: Before her trip to Ecuador, Ms. Vergara
sold her car in the United States, suggesting a permanent move.
But she did not sell her stroller, car seat, and other baby items,
suggesting a temporary journey.
o Pediatrician Visits: KACV had a doctor’s appointment to
receive her pediatric vaccinations from a physician in the United
States, suggesting a “temporary journey” with a finite end-date.
Yet KACV missed this appointment and ultimately received her
vaccinations in Ecuador instead.
At best, the evidence to support Mr. Cevallos’s position that the parties
developed a shared intent to remain in Ecuador is a mixed bag. This is not
enough. “Absent the parents’ shared intent, prior habitual residence should
be deemed supplanted only where the objective facts point unequivocally to

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this conclusion.” Cartes v. Phillips, 865 F.3d 277, 283 (5th Cir. 2017)
(internal quotations and citation omitted) (emphasis added); see also
Papakosmas v. Papakosmas, 483 F.3d 617, 626 (9th Cir. 2007) (“[I]n the
absence of settled parental intent, courts should be slow to infer from such
contacts [in the new country] that an earlier habitual residence has been
abandoned.”) (internal citation and quotation marks omitted).
Turning to the perspective of KACV, courts have considered “academic
activities,” “social engagements,” “participation in sports programs and
excursions,” “meaningful connections with the people and places in the
child’s new country,” “language proficiency,” and “location of personal
belongings” to determine a child’s acclimatization to a new country.
Monasky, 589 U.S. at 78 n.3. But KACV’s tender age renders these
considerations largely moot. As the Ninth Circuit has emphasized, it would
be “practically impossible” for “a newborn child, who is entirely dependent
on its parents, to acclimatize independent of the immediate home
environment of the parents.” Holder v. Holder, 392 F.3d 1009, 1023 (9th Cir.
2004). KACV was between two and eight months old during the operative
period. As she will have little-to-no memory of this period, the court will give
little weight to KACV’s acclimatization, or lack thereof, to life in Ecuador.

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Finally, KACV has strong familial ties to both the United States and
Ecuador. While all of Mr. Cevallos’s family lives in Ecuador, the vast majority
of Ms. Vergara’s family lives in the United States. Although KACV
undoubtedly formed a bond with her paternal grandparents while in
Ecuador, her family is found both in the United States and Ecuador.
In sum, KACV’s habitual residence was the United States as of July
2022, and the preponderance of the evidence does not conclusively prove it
changed to Ecuador. Although KACV lived in Ecuador for an indefinite
duration, the evidence does not show the trip was for the “settled purpose”
of permanently relocating KACV to Ecuador. And, given KACV’s tender age,
her time spent in Ecuador did not acclimatize her to such a degree that she
was unequivocally “at home” there. Absent sufficient evidence to the
contrary, the court concludes KACV’s habitual residence was, and remains,
the United States.
Mr. Cevallos has failed to meet his burden to show that KACV’s
habitual residence was Ecuador at the time of removal. As Mr. Cevallos has
failed to establish the first element of his prima facie case, the court will not
address the remaining elements or affirmative defenses presented. Tsai-Yi
Yang v. Fu-Chiang Tsui, 499 F.3d 259, 271 (3d Cir. 2007) (“[I]f we hold that
the United States was [the child’s] habitual residence [on the date of

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retention], the analysis is complete as the Hague Convention would not apply
because her retention in the United States would not be wrongful as defined
by Article 3.”).
* * *
As several courts have previously observed, “[t]hese cases are always
heart-wrenching, and there is inevitably one party who is crushed by the
outcome.” Holder, 392 F.3d at 1023. The court’s task in this case is narrow.
It does not have the power to address custody, comment on the best interest
of the child, or resolve all disputes between the parties. Rather, the court’s
narrow task is to determine whether KACV was wrongfully removed from her
country of habitual residence. Based on the reasoning above, the court has
determined she was not. The petition for return is denied. Dkt. 1.
SIGNED on Galveston Island this 28th day of August, 2024.

__________________________
JEFFREY VINCENT BROWN
UNITED STATES DISTRICT JUDGE

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