United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., DISTRICT JUDGE
Olga Rodriguez Palomo initiated this action by filing a
Verified Petition for Return of a Child under the Convention
on the Civil Aspects of International Child Abduction (The
“Hague Convention”) (“Verified
Pet.”), (Doc. 1), seeking return of her minor child,
J.H.R., pursuant to the Convention on the Civil Aspects of
International Child Abduction, Oct. 25, 1980, T.I.A.S. No.
11, 670 (the “Hague Convention”), and the
International Child Abduction Remedies Act, 22 U.S.C. §
9001 et seq. (“ICARA”). Petitioner is
seeking the return of J.H.R. to Spain on the ground that her
son was wrongfully removed from his home country of Spain to
Greensboro, North Carolina, by his father, Respondent Donald
Ray Howard, in violation of Petitioner's custody rights.
reasons set forth below, the court will grant
Petitioner's petition and order J.H.R. returned to Spain.
the trial held on November 21, 2019, this court made findings
of fact orally in open court. (Minute Entry 11/21/2019
(“Min. Entry 11/21/2019”).) Those facts are
incorporated by reference herein. The court finds the
additional facts from the verified pleadings, as well as the
evidence presented at the hearing. (Min. Entry 11/21/2019.)
gave birth to J.H.R. in 2010 in Spain. (Verified Pet. (Doc.
1) ¶ 9.) Respondent is the father of the child.
(Id.) Petitioner and Respondent were married in
Spain in April 2010. (Id. ¶ 10.)
October 2010, Petitioner, Respondent, and J.H.R. moved to
Greensboro, North Carolina. (Id. ¶ 12.)
told Respondent, in early 2014, that she wanted the family to
move back to Spain. (Id. ¶ 13.) Respondent
agreed. (Id.) Petitioner and J.H.R. moved to Spain
first in April 2014, (id. ¶ 14), and Respondent
moved to Spain in October 2014 to join them. (Id.
¶¶ 13, 15; Min. Entry 11/21/2019.)
Respondent moved to Spain, he did not live with J.H.R. and
Petitioner. (Min. Entry 11/21/2019.) J.H.R. lived with
Petitioner in Petitioner's mother's apartment during
this time. (Verified Pet. (Doc. 1) ¶ 17; Min. Entry
October 24, 2014, Petitioner initiated divorce proceedings in
the Court of First Instance No. 27 of Madrid. (Verified Pet.
(Doc. 1), Ex. D, June 18, 2019 Spanish Court Decision
(“June 18, 2019 Decision”) (Doc. 1-4) at
The Spanish court tried to summon Respondent by telephone on
April 27, 2016, for a hearing on Petitioner's custody and
divorce filing. (Id. at 18.) When he refused to
come, the court entered a procedural default. (Id.)
That court issued a ruling on May 20, 2016, granting
Petitioner sole custody of J.H.R., along with a divorce.
(Id. at 16.)
appealed this order, arguing that he was deprived of due
process for failure to receive notice of the proceedings.
(Id. at 17.) On September 26, 2017, the Provincial
Court of Madrid, the Spanish appellate court, annulled the
existing Spanish custody order granting Petitioner sole
custody and ordered further proceedings. (Verified Pet. (Doc.
1) ¶ 22; June 18, 2019 Decision (Doc. 1-4) at 17-19.)
The Provincial Court agreed with Respondent and declared that
he “had been left defenseless” to those
proceedings. (June 18, 2019 Decision (Doc. 1-4) at 18.) The
Provincial Court also found that, at the time of the 2014
Spanish custody and divorce proceedings, Petitioner knew that
Respondent had initiated custody proceedings in Guilford
County Superior court, and that she failed to tell the
Provincial Court of these proceedings. (Id. at 19.)
This order, however, did not divest Petitioner of custody
rights. (Id.) While Petitioner was pursuing divorce
in the Spanish courts, Respondent filed an ex parte temporary
custody petition in the Guilford County Superior Court.
(Brief in Support of Respondent's Motion for Summary
Judgment (Doc. 13), Ex. 1, Respondent's Affidavit
(“Resp't's Aff.”) (Doc. 13-1) ¶ 27.)
The Guilford County Superior Court entered a Permanent
Custody Order granting Respondent sole custody on July 1,
2015. (Petitioner's Memorandum in Support of Her Motion
to Dismiss Pursuant to Rules 12(b)(1) and 12(b)(6) (Doc. 10),
Ex. A, Guilford County Order (Doc. 10-1) at 2.)
August 2018, J.H.R. had been living in Spain with Petitioner
for four years. (Verified Pet. (Doc. 1) ¶ 37.)
Petitioner and Respondent were engaging in custody
negotiations. (Id. ¶ 22.) Respondent and
Petitioner agreed in writing that J.H.R. would go on vacation
with Respondent for two weeks. (Id.) Respondent
instead took J.H.R. to North Carolina. (Resp't's Aff.
(Doc. 13-1) ¶¶ 50, 52-53.)
went to the Court of First Instance in Madrid and received an
order on September 7, 2018, which stated that it was in the
interest of the child not to illicitly transfer him or remove
him from his habitual residence with his mother. (Verified
Pet. (Doc. 1), Ex. C, Sept. 7, 2018 Order (Doc. 1-3) at 9.)
This order further dictated that Petitioner would exercise
care and custody of the child and prohibited the removal of
the child from Spain without judicial authorization.
(Id. at 11.)
January 22, 2019, Petitioner filed a Request for Return
Application under the Hague Convention with the Central
Authority for Spain. (Verified Pet. (Doc. 1), Ex. G, Request
for Return (Doc. 1-7).)
18, 2019, the Court of First Instance No. 27 of Madrid issued
an order concerning the return of J.H.R. to Petitioner. (June
18, 2019 Order (Doc. 1-4).) In that order, the Spanish court
held that Respondent's transfer of J.H.R. to Greensboro,
North Carolina, constituted an illicit transfer in violation
of Article 3 of the Hague Convention of 1980. (Id.
at 26.) The Spanish court found that Petitioner was
exercising legitimate custodial rights over J.H.R. at the
time Respondent took the child to the United States.
(Id.) The Spanish court also found that J.H.R.'s
habitual residence was Madrid, Spain, where Petitioner had
exercised lawful custody since 2014, “without
opposition from the father, ” that J.H.R. was enrolled
in school, that Respondent “did not present a claim for
restitution in the year that he was aware of the minor's
whereabouts, ” and that Respondent lived in Madrid.
(Id. at 25.)
August 30, 2019, Petitioner filed the Verified Petition,
seeking return of J.H.R. to Spain. (Doc. 1.) Service was
executed on Respondent on September 11, 2019, (Doc. 4), and
Respondent filed his Answer on September 26, 2019, (Doc. 5).
Petitioner requested a hearing on her Verified Petition, and
a hearing was set for October 29, 2019, (Doc. 6).
filed a counterclaim, bringing one claim for fraud and four
claims for abuse of process. (Doc. 7.) Petitioner filed a
Motion to Dismiss for Failure to State a Claim. (Doc. 9.)
Respondent filed a Motion for Summary Judgment on November
19, 2019, (Doc. 13), and a Motion to Dismiss on November 20,
2019, (Doc. 14).
court held a trial on November 21, 2019. (Min. Entry
11/21/2019.) At trial, Respondent voluntarily withdrew his
counterclaims. (Id.) At the end of the trial, this
court made several factual findings and issued its order
granting the petition. (Min. Entry 11/21/2019.) Respondent
filed a motion for reconsideration on November 22,
2019. (Doc. 15.)
Petitioner's Prima Facie Case
Hague Convention on the Civil Aspects of International Child
Abduction, as implemented through ICARA, was created with the
purpose “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, as well as to secure
protection for rights of access.” International Child
Abduction Convention, 1988 WL 411501 (“Hague
Convention”). “[T]he primary purpose of the Hague
Convention is ‘to preserve the status quo and to deter
parents from crossing international boundaries in search of a
more sympathetic court.'” Miller v.
Miller, 240 F.3d 392, 398 (4th Cir. 2001) (quoting
Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th
considering a Hague Convention petition (“Hague
petition”) has jurisdiction only over the wrongful
removal or retention claim. See Hague Convention,
order to secure the return of an abducted child, a petitioner
must prove by a preponderance of the evidence that the child
“has been wrongfully removed or retained within the
meaning of the Convention.” 22 U.S.C. §
9003(e)(1). A petitioner must prove the following to
establish a prima facie case of wrongful removal: “(1)
the child was ‘habitually resident' in the
petitioner's country of residence at the time of removal,
(2) the removal was in breach of the petitioner's custody
rights under the law of his home state, and (3) the
petitioner had been exercising those rights at the time of
removal.” Bader v. Kramer, 484 F.3d 666, 668
(4th Cir. 2007). Once a petitioner has made out a prima face
case of wrongful removal, “return of the child is
required unless the respondent establishes one of four
Two of the defenses must be supported by clear and convincing
evidence: (1) that return would expose the child to a
“grave risk” of “physical or psychological
harm or otherwise place [the child] in an intolerable
situation” and (2) that return of the child would not
be permitted by “fundamental principles of the United
States relating to the protection of human rights and
fundamental freedoms.” The other two defenses may be
supported by a preponderance of the evidence: (1) that the
petition for return was not filed within one year of the
removal and the child is now well-settled in another country,
and (2) that the petitioner was not actually exercising h[er]
custodial rights at the time of the removal or had consented
to or acquiesced in the removal.
Id. at 668-69.
J.H.R.'s Habitual Residence
contends that J.H.R.'s habitual residence was Spain at
the time Respondent took him. (Verified Pet. (Doc. 1) ¶
37.) Petitioner bases this assertion on that fact that the
child “lived with Petitioner continuously in Spain from
April 2014 until Respondent wrongfully removed him from
Spain.” (Id.) The first prong of the wrongful
removal prima facie case requires the court to determine the
location of the child's habitual residence.
Bader, 484 F.3d at 668. The burden is on the
petitioner to prove by a preponderance of the evidence that
“the child was ‘habitually resident' in the
petitioner's country of residence at the time of
Fourth Circuit stated in Miller v. Miller, 240 F.3d
392, 400 (4th Cir. 2001), “[t]he Hague Convention does
not define ‘habitual residence.'” The court,
looking to its sister circuits, concluded that “there
is no real distinction between ordinary residence and
habitual residence.” Id. “A person can
have only one habitual residence. On its face, habitual
residence pertains to customary residence prior to the
removal. The court must look back in time, not
forward.” Id. (quoting Friedrich, 983
F.2d at 1401). “This is a fact-specific inquiry that
should be made on a case-by-case basis.” Id.
Importantly, “a parent cannot create a new habitual
residence by wrongfully removing and sequestering a
courts have developed a two-part framework to assist in the
habitual residence analysis.” Maxwell v.
Maxwell, 588 F.3d 245, 251 (4th Cir. 2009). First, the
court must determine “whether the parents shared a
settled intention to abandon the former country of
residence.” Id. (citing Mozes v.
Mozes, 239 F.3d 1067, 1075 (9th Cir. 2001)). Second, the
court determines “whether there was ‘an actual
change in geography' coupled with the ‘passage of
an appreciable period of time, one sufficient for
acclimatization by the [child] to the new
environment.'” Id. (quoting Papakosmas
v. Papakosmas, 483 F.3d 617, 622 (9th Cir. 2007)).
court will address each part in turn.
Fourth Circuit has adopted the Ninth Circuit's framework
for determining parental intentions in Hague Convention
cases, due to the “[d]ifficulty [that] arises . . .
when the persons entitled to fix the child's residence no
longer agree on where it has been fixed-a situation that, for
obvious reasons, is likely to arise in cases under the
Convention.” Maxwell, 588 F.3d at 251.
this framework there are three factual categories of cases.
“In the first category are cases where ‘the court
finds that the family as a unit has manifested a settled
purpose to change habitual residence, despite the fact that
one parent may have had qualms about the move.'”
Id. (quoting Mozes, 239 F.3d at 1076). In
this category, “[w]hen courts find 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.” Mozes, 239 F.3d
at 1077). Second “are those cases ‘where the
child's initial translocation from an established
habitual residence was clearly intended to be of a specific,
delimited period.'” Maxwell, 588 F.3d at
251 (quoting Mozes, 239 F.3d at 1077). In these
cases, courts have generally refused to find that the changed
intentions of one parent led to an alteration in the
child's habitual residence. Id. Finally, the
“third category of cases is comprised of ‘[i]n
between cases where the petitioning parent had earlier
consented to let the child stay abroad for some period of
ambiguous duration.'” Id. (quoting
Mozes, 239 F.3d at 1076-77.) “Sometimes the
circumstances surrounding the child's stay are such that,
despite the lack of perfect consensus, the court finds the
parents to have shared a settled mutual intent that the stay
last indefinitely, ” and it is thus reasonable to infer
“a mutual abandonment of the child's prior habitual
residence.” Mozes, 239 F.3d at 1077.
“Other times, however, circumstances are such that,
even though the exact length of the stay was left open to
negotiation, the court is able to find no settled mutual
intent form which such abandonment can be inferred.”
are several factors that may serve as evidence of parental
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 possessions; the citizenship status of the parents and
children; and the stability of the home environment in the
new country of residence.
Maxwell, 588 F.3d at 252.
contends that J.H.R.'s habitual residence is North
Carolina. (Respondent's Motion to Dismiss
(“Resp't's Mot. to Dismiss”) (Doc. 14) at
5.) In particular, he states that “[w]hen an agreement
allowing a child to enter another country is conditioned upon
the ability of the left behind parent to reunite with the
family and that condition is frustrated, the child does not
acquire a new habitual residence within the meaning of
Article 12 of the Hague Convention.” (Id. at
2.) He premises this assertion on a paper written by the
Honorable James D. Garbolino, The 1980 Hague Convention
on the Civil Aspects of International Child Abduction: A
Guide for Judges (2015), and on two cases cited in that
paper in the section entitled “Stranded Parents,
” Mota v. Castillo, 692 F.3d 108 (2d Cir.
2012) and Hofmann v. Sender, 716 F.3d 282 (2d Cir.
2013). (Id. at 3-4.)
Mota, the father traveled from Mexico to New York to
find work, while the child and the mother remained in Mexico.
Mota, 692 F.3d at 109. The parents had the child
smuggled into the United States, where she lived with her
father. Id. The mother, however, repeatedly and
unsuccessfully tried to gain entrance into the country.
Id. at 109-10. The mother then filed a Hague
petition in the United States. Id. at 111. The
Second Circuit affirmed the district court's holding that
Mexico was the child's habitual residence, stating,
“[the mother]'s intention that [the child] live in
the United States only if she, as mother, were able to join
[the child] there is dispositive of our determination of [the
child]'s habitual residence.” Id. at 115.
The Second Circuit further noted that “[w]ere [the
mother] unable to join her daughter in America, [the
child]'s stay would be temporary, and the daughter would
rejoin her mother in Mexico.” Id.
applied the holding in Mota to a situation involving
a Canadian father and an American mother who had two children
in Canada. Hofmann, 716 F.3d at 285. In August 2011,
the respondent mother moved with the two children to New York
to be near her family, as well as to begin the family's
relocation process. Id. at 286. During this time,
the petitioner father stayed in Canada while periodically
visiting the rest of the family in New York. Id. The
petitioner and respondent opened up a joint bank account in
New York in September 2011, and their oldest child began
attending school in New York at around the same time.
Id. at 286-87.
the district court noted, critically, that the parties
“had not reached the unequivocal decision to relocate
to New York” on the date the mother moved the children
to New York. Id. at 287 (internal quotation marks
omitted). Indeed, “[a]lthough [the respondent mother]
had abandoned her pursuit of Canadian citizenship by this
point, the court found that as late as November and December
of 2011, the parties were still considering the possibility
of permanently settling in a new residence in
Montreal.” Id. Further, the respondent mother
“continued to receive certain tax credits and maternity
leave from her job in Montreal, ” and that