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PAZ v. PAZ

October 29, 2001

ERNESTO ENRIQUE PAZ, PETITIONER,
v.
CARMEN AIDA MEJIA DE PAZ, RESPONDENT.



The opinion of the court was delivered by: Cedarbaum, J.

OPINION

Petitioner Ernesto Enrique Paz filed this petition pursuant to the Hague Convention on the Civil Aspects of Child Abduction (hereinafter "Convention"), as implemented by the International Child Abduction Remedies Act (hereinafter "ICARA"), 42 U.S.C. § 11601 et seq., seeking an order requiring his estranged wife, Carmen Aida Mejia de Paz, to return their daughter, Jordana Bettina Paz Mejia, to New Zealand. For the reasons that follow, Paz's petition is denied.

BACKGROUND

Petitioner and respondent, both Peruvian natives and citizens, were married in Peru on March 10, 1987 and are still legally married. Shortly after their marriage, the couple moved to New Zealand, where Jordana was born on September 1, 1988.

In September 1990, petitioner and respondent separated. Respondent then obtained a joint custody order from the Otahuhu Family Court in Auckland, New Zealand. The order granted respondent primary custody of Jordana and permitted petitioner to visit Jordana for short periods of time on Wednesdays and Sundays. In addition, the court retained custody of Jordana's passport and prohibited Jordana from being removed from New Zealand. In October 1992, the Otahuhu Family Court amended its initial custody order, releasing Jordana's passport and authorizing respondent to remove Jordana from New Zealand and travel to Peru with her. The October 1992 court order is the last order by any New Zealand court in connection with the custody of Jordana.

In November 1992, respondent moved to Peru with Jordana with the understanding that petitioner would follow shortly, and the couple would attempt to reconcile. Petitioner moved to Peru in February 1993, and the couple lived together with Jordana from February 1993 until March 1998, although the marriage began to deteriorate in late 1996. In March 1998, respondent moved to New Zealand with Jordana. In May 1998, petitioner followed respondent to New Zealand where they lived in the same house for one month. Respondent was unable to find employment in New Zealand, and returned alone to Peru in June 1998. In August 1998, petitioner moved to Peru with Jordana, but petitioner and respondent did not live together. Petitioner and respondent agreed to share custody of Jordana for alternating one-week periods.

In August 1998, respondent received an employment offer from a telecommunications company in New York. In December 1998, respondent and Jordana, accompanied by respondent's mother, moved to New York. Respondent began to work at the telecommunications company, but was unable to enroll Jordana in a New York elementary school in the middle of the school year. Jordana and her grandmother returned to Peru in February 1999, at the start of the new school semester in Peru. Jordana attended school in Peru until August 1999, when she returned with respondent to live in New York. Jordana then began attending a Catholic elementary school in New York. In December 1999, respondent sent Jordana to Peru to spend the Christmas holidays with her father. Jordana returned to New York in January 2000 and resumed her schooling.

In late February 2000, respondent sent Jordana to Peru with the understanding that Jordana would travel with petitioner to New Zealand for an extended stay with petitioner's sister. Respondent asserts that petitioner agreed to return Jordana to New York at the end of the New Zealand school term in July 2000. Jordana and petitioner traveled to New Zealand in late March or early April 2000, where they stayed with petitioner's sister. In July 2000, respondent requested that petitioner return Jordana to New York in accordance with their agreement. Petitioner refused, and continued to keep Jordana in New Zealand until December 2000, despite repeated requests by respondent that petitioner return the child to New York.

In December 2000, Jordana returned to New York with respondent. Petitioner alleges that he agreed to allow the child to travel to New York only for the holiday period, and that he arrived in New York in January of 2001 with the intention of returning to New Zealand with Jordana. Respondent asserts that petitioner agreed to Jordana's permanent settlement in New York.

Respondent also asserts that she gave petitioner $1,000, and helped him to obtain a visa so that he could come to the United States to study and be close to Jordana. In January 2001, petitioner flew from New Zealand to the United States. It is undisputed that when he arrived in the United States, respondent refused to allow him to take Jordana to New Zealand.

DISCUSSION

The Convention seeks to "secure the prompt return of children wrongfully removed to or retained in any Contracting State." Convention, art. 1.*fn1 To that end, ICARA, the implementing legislation for the Convention, authorizes the filing of a petition for the return of a child in a United States district court. See 42 U.S.C. § 11603(b). Under the Convention, "a United States District Court has the authority to determine the merits of an abduction claim, but not the merits of the underlying custody claim." Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir. 1993) (citing Convention, art. 19). This is because "a child's country of habitual residence is best placed to decide upon questions of custody and access." Croll v. Croll, 229 F.3d 133, 137 (2d Cir. 2000).

When a federal court receives a petition alleging wrongful retention in violation of the Convention, the court must decide whether the petitioner has proven by a preponderance of the credible evidence that the child was "wrongfully removed or retained" within the meaning of the Convention. See 42 U.S.C. ยง 11603(e)(1)(A). If a court determines that a petitioner has met his ...


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