The opinion of the court was delivered by: Block, Senior District Judge
Pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 24, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89, reprinted in 51 Fed. Reg. 10,494 (Mar. 26, 1986) ("the Hague Convention"), implemented by the International Child Abduction Remedies Act, 42 U.S.C. § 11601 et seq. (2000), Angela Rosa Bonilla Ordoñez ("Bonilla") has filed a petition against her husband, Claudio Hernan Sinchi Tacuri ("Sinchi"), seeking the return to Ecuador of their three-year-old son, James Hernan Sinchi Bonilla ("James"), who is currently residing with Sinchi in Queens, New York.
The Court held a hearing that commenced on July 6, 2009. Bonilla's sister Gladys Maria Bonilla Ordoñez ("Gladys") and Bonilla herself testified on Bonilla's behalf via video link from Ecuador.*fn1 Bonilla's other sister, Gloria Margarita Bonilla Ordoñez ("Gloria"); Sinchi and Bonilla's Queens landlord, Juan Ernesto Zumba; Sinchi's mother, Teresa Tacuri; Sinchi's friend, Jose Sinchi (no relation); and Sinchi himself testified in person on Sinchi's behalf. The parties also submitted various documents as exhibits.
In accordance with Rule 52(a) of the Federal Rules of Civil Procedure, the following constitutes the Court's findings of fact and conclusions of law. Based on those findings and conclusions, the petition is denied.
Bonilla is a 32-year-old native-born citizen of Ecuador; she is not an American citizen. She currently lives in the city of Tena, Napo Province, Ecuador. Bonilla has three sons. The youngest, James, age 3 -- with whom this litigation is concerned -- was fathered by Sinchi; James was born in the United States and is an American citizen. Bonilla's two elder sons, ages 14 and 10, have a different father; they are Ecuadorian citizens and currently live with Bonilla in Ecuador.
Sinchi lives in Queens, New York. His age is not in the record. He was born in Ecuador and, since 2004, has been a dual citizen of Ecuador and the United States. He has no children other than James.
Bonilla and Sinchi met in Ecuador in 2001 and became romantically involved. About a month later, Sinchi left Ecuador for the United States. Bonilla came to the United States illegally to live with Sinchi in April of 2002. James was born in the United States on January 6, 2006
At some point during the first part of 2006, Bonilla heard that her two elder sons were being mistreated by their stepmother in Ecuador. Therefore, in August 2006, when James was eight months old, Bonilla and Sinchi, along with James, traveled together to Ecuador to attend to Bonilla's two elder sons. Bonilla and Sinchi also intended to marry while in Ecuador so that Sinchi could sponsor Bonilla and her two elder sons for American citizenship. When they left Queens, they with them only two pieces of luggage per person; the remainder of the family's belongings -- including James's belongings -- was stored in their landlord's garage.
About two weeks after their arrival in Ecuador, Bonilla and Sinchi were married. On September 26, 2006, Sinchi returned alone to the United States; Bonilla remained in Ecuador with James, pursuing custody of her two elder sons and waiting for Sinchi to sponsor her and her two elder sons' citizenship applications. On November 17, 2006, while in the United States, Sinchi initiated the citizenship applications.
In December 2006, Sinchi briefly returned to Ecuador and, in January 2007, with Bonilla's consent, took James, then one year old, back to the United States. Eight months later, in September 2007, Sinchi and James returned to Ecuador. Shortly after Sinchi arrived, he learned that Bonilla had been unfaithful to him and their relationship grew sour. Before then, Sinchi had intended to process the citizenship applications with dispatch; afterwards, he lost interest in doing that. On October 17, 2007, Bonilla was granted full Ecuadorian custody of her two elder sons. Four days later, on October 21, 2007, Sinchi and James returned to New York; James has remained here ever since.
In November 2007, Bonilla's sister Gloria left Ecuador and entered the United States illegally; soon thereafter, Gloria and Sinchi became romantically involved. At some point toward the end of 2007, Bonilla realized that Sinchi could not be relied upon to process and support the citizenship applications for her and her two elder sons. In or about February 2008, Bonilla filed a court proceeding in Ecuador against Sinchi and on March 11, 2008, secured an Ecuadorian judgment ordering Sinchi to "turn over [James] forthwith . . . ." Pet'r's Ex. 8. On April 15, 2009, she filed this action.
The Hague Convention, to which the United States and Ecuador are both signatories,*fn2 endeavors to "protect children internationally from the harmful effects of their wrongful removal . . . and to establish procedures to ensure their prompt return . . . ." Hague Convention, pmbl. In conducting a Hague Convention proceeding, "the Court must resist the temptation to engage in a custody determination under the traditional 'best interests' test." Elyashiv v. Elyashiv, 353 F. Supp. 2d 394, 403 (E.D.N.Y. 2005); see also Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir. 1993) ("[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." (citing Hague Convention art. 9)). Thus, "it is not relevant . . . who is the better parent in the long run . . . ." Walsh v. Walsh, 221 F.3d 204, 218 (1st Cir. 2000) (citations and quotation marks omitted).
"[I]n order to prevail on a claim under the Hague Convention a petitioner must show that (1) the child was habitually resident in one State and has been removed to or retained in a different State; (2) the removal or retention was in breach of the petitioner's custody rights under the law of the State of habitual residence; and (3) the petitioner was exercising those rights at the time of the removal or retention." Gitter v. Gitter, 396 F.3d 124, 130 (2d Cir. 2005). Once these elements are established, "the [Court] shall order the return of the child[,]" Hague Convention art. 12, unless one of the affirmative defenses set forth in Articles 12, 13 and 20 applies.*fn3
The only element of Bonilla's Hague Convention burden at issue here is whether James "was habitually resident in [Ecuador]" at the time he was removed to the United States on October 21, 2007. Gitter, 396 F.3d at 130. "Neither the Hague Convention nor its implementing legislation defines 'habitual residence.'" Villegas Duran v. Arribada ...