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Palomo v. Howard

United States District Court, M.D. North Carolina

December 6, 2019

OLGA RODRIGUEZ PALOMO, Petitioner,
v.
DONALD RAY HOWARD, Respondent.

          MEMORANDUM OPINION AND ORDER

          OSTEEN, JR., DISTRICT JUDGE

         Petitioner 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.

         For the reasons set forth below, the court will grant Petitioner's petition and order J.H.R. returned to Spain.

         I. BACKGROUND

         Following 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.)

         Petitioner 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.)

         In October 2010, Petitioner, Respondent, and J.H.R. moved to Greensboro, North Carolina. (Id. ¶ 12.)

         Petitioner 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.)

         After 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 11/21/2019.)

         On 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 16.)[1] 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.)

         Respondent 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.)

         In 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.)

         Petitioner 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.)

         On 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).)

         On June 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.)

         On 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).

         Respondent 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).

         The 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.[2] (Doc. 15.)

         II. ANALYSIS

         A. Petitioner's Prima Facie Case

         The 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 Cir. 1993)).

         A court considering a Hague Convention petition (“Hague petition”) has jurisdiction only over the wrongful removal or retention claim. See Hague Convention, art. 16.

         In 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 defenses.” Id.

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.

         1. J.H.R.'s Habitual Residence

         Petitioner 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 removal.” Id.

         As the 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 child.” Id.

         “Federal 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)).

         The court will address each part in turn.

         a. Parental Intent

         The 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.

         Under 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.” Id.

         There are several factors that may serve 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 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.

         Respondent 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.)

         In 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.

         Hofmann 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.

         However, 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 ...


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