United States District Court, S.D. New York
INOCENCIA HERRERA TAVERAS, acting on behalf of infant child, L.A.H.,  Petitioner,
JOSE ALONZO MORALES, Respondent
For Inocencia Herrera Taveras, acting on behalf of an infant child, Leany Alonzo Herrera, Petitioner: Richard Min, Camhi & Min LLC, New York, NY.
For Jose Alonzo Morales, Respondent: John Emmett Murphy, Lauren Webb Mitchell, King & Spalding LLP (NYC), New York, NY.
OPINION AND ORDER
Ronnie Abrams, United States District Judge.
Before the Court is Inocencia Herrera Taveras's Petition seeking return of her minor child, LAH, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, reprinted in 51 Fed. Reg. 10,494 (Mar. 26, 1986) (hereinafter, " Hague Convention" or " Convention" ), as implemented by the International Child Abduction Remedies Act (" ICARA" ), 42 U.S.C. § 11601 et seq.
Petitioner, who resides in Spain, alleges that she allowed LAH to travel to the United States to reside temporarily with the child's father, Respondent Jose Alonzo Morales, who wrongfully retained the child. As explained more fully below, the Court concludes that although Petitioner has made out a prima facie case, Respondent has established that the child is now " settled" in the United States--an affirmative defense under Article 12 of the Convention. Accordingly, the Petition is denied.
FINDINGS OF FACT
The Court held a five-day hearing from March 3 to March 7, 2014, at which it heard testimony from Petitioner, Respondent, Respondent's mother, Sonia Portugal (a social worker who treated LAH), and Gabriela Martin (Petitioner's Spanish counsel). The Court also interviewed LAH in Chambers, with only a court reporter and interpreter present. (See Hr'g Tr. (" Tr." ) 244-283.) During this interview, the Court and eight-year-old LAH sat on the floor and played with puzzles and coloring books while talking. In advance of this conversation, the Court solicited questions from the parties, many of which were asked during the interview.
The following constitute the Court's findings of fact under Federal Rule of Civil Procedure 52(a). As necessary, the Court makes additional factual findings in other sections of this Opinion, which it will specifically designate as such findings.
1. LAH's Birth and Early Years
LAH, who is the child of Petitioner and Respondent, was born in Santo Domingo, Dominican Republic, on September 20, 2005. (Parties' Stipulation of Facts (" Stipulation" ) ¶ ¶ 1-2.) Petitioner and Respondent, who have never married, lived together with LAH in the Dominican Republic from the child's birth until September 2007. (Id. ¶ 3.)
The parties separated in September 2007. (Id. ¶ 4.) In the years following the separation, LAH changed households frequently, although she always lived with her mother, her father, or another family member. Immediately following the September 2007 separation, LAH lived with her mother in the Dominican Republic.
(Id. ¶ 4; Tr. 25:4-6.) In approximately March 2008, Petitioner moved to Spain in order to take advantage of a better economic climate, and the child began to live with Respondent, who remained in the Dominican Republic. (Stipulation ¶ 5; Tr. 28:12-29:4.) In a document signed in September 2008, Respondent acknowledged that his care of his daughter was only " temporary" and that, based on the " friendship between both parties," he would return the child to her mother " at the very moment she requests so." (Pet'r's Ex. 5 at 1-2.) Consistent with this agreement, Respondent returned the child to Petitioner on December 9, 2009, when Petitioner returned to the Dominican Republic after acquiring Spanish residency. (Tr. 35:9-36; Pet'r's Ex. 50 / Resp't's Ex. 52A.)
2. The Custody Dispute and Final Order
Beginning in 2010, the parties' informal and amicable custodial arrangement gave way to a more contentious relationship. In early March of that year, Petitioner decided to return to Spain and made plans to leave the child with Respondent. (Tr. 37:17-23.) Because, in Respondent's view, the child had been in his care for most of the previous two years, he requested that he be granted legal custody. (Pet'r's 51 / Resp't's Ex. 53A.) The parties appeared before an " Assistant Public Prosecutor for Children and Adolescents" in the Dominican Republic, put their positions in writing, and stated that they were unable to reach an agreement regarding custody. (Id.) Petitioner left for Spain soon thereafter, and Respondent again assumed care of the child. (Tr. 37:21-23; Stipulation ¶ 6.)
Three months later, in June 2010, Petitioner returned to the Dominican Republic from Spain. (Tr. 37:24-38:3.) A document executed on June 7, 2010, reflects that the parties again attempted to reach an agreement concerning custody of the child but were unable to do so. (Pet'r's Ex. 52 / Resp't's Ex. 51.) The child then moved in with Petitioner (Tr. 52:21-25), and the dispute over custody continued until Sunday, August 29, 2010.
Although the parties dispute the events of that day, they agree that in the morning or early afternoon Respondent arrived at Petitioner's home and took the child, over Petitioner's objection. (Id. at 40:20-41:4; 521:4-6.) Petitioner--who was seven months pregnant with LAH's half-sister--then traveled to Respondent's home in an attempt to recover LAH. (Id. 40:18-19, 41:6-9, 521:19-20.) This is where the parties' accounts diverge.
Petitioner asserts that when she arrived at Respondent's home, she attempted to open the outer gate to Respondent's front door when he " pushe[d] the gate against . . . [her] womb" and closed the gate on her hand, causing her to " bleed[ ] very much." (Tr. 41:9-12, 43:10-12; Pet'r's Ex. 9.) After receiving medical attention, Petitioner testified, she was in the process of contacting the police when her new husband received a call from Respondent's uncle, who explained that Respondent would agree to give custody of LAH to Petitioner " so that no complaint [would have] to be made." (Tr. 43: 9-23.)
According to Respondent, Petitioner arrived at his house demanding LAH and put her foot under the outer gate in the entryway so that he could not close the inner door. (Id. at 522:1-6.) He asserts that when he reached down to attempt to move Petitioner's foot, she reached through the outer gate with a knife and began to strike at him. (Id. at 522:6-19.) He was then able to close the door. (Id. at 522:25-523:2.) Respondent later handed over the child to a neighbor, who returned her to Petitioner. (Id. at 524:9-13.) That evening, he learned that Petitioner's brother and nephew were looking for him to beat him up and leave him " crippled." (Id. at 525 18:25.) Respondent subsequently agreed to sign a custody agreement. (Id. at 526:9-22.) He testified that he did so " in order for [Petitioner] to let me be--to leave me alone." (Id. at 527:2-3.)
For purposes of the instant Petition, the Court need not decide which version of the events is accurate. The important point is that on the following day the parties signed an agreement stating that Respondent " relinquishes and gives custody of the minor [LAH] to Ms. Inocencia Herrera Taveras" ; that " Ms. Inocencia Herrera Taveras accepts custody of the minor [LAH], with all legal consequences" ; and that " Mr. José Leopoldo Alonzo Morales will have visitation with his daughter during the school vacation period and will maintain phone communication with her." (Resp't's Ex. 13 at 3-4.) On September 10, 2010, the First Court of Children and Adolescents of the National District in the Dominican Republic issued an order that " 'approved" the parties' August 30, 2010 agreement. (Pet'r's Ex. 10 at 8.)
Petitioner returned to Spain in early September (Tr. 53:13-14); after her departure, LAH, who remained in the Dominican Republic, lived with Petitioner's mother and visited with Respondent on weekends (id. at 53:21-25, 558:5-11; Pet'r's Ex. 11). On February 2, 2011, LAH left the Dominican Republic to live with Petitioner in Spain. (Stipulation ¶ 8),
3. LAH's Life in Spain
LAH was approximately five-and-a-half years old when she arrived in Valladolid, Spain. (Tr. 67:20.) She lived there with Respondent, Respondent's sister (LAH's aunt), and Respondent's other daughter (LAH's half-sister), W, who was three months old when LAH arrived. (Id. at 67:4-8, 17-18.) LAH became a legal resident of Spain by April 2011 (id. at 73:22-72:1; Pet'r's Ex. 18), and remained there until May 2012 (Stipulation ¶ 11).
Petitioner testified that, while in Spain, she worked as a hairdresser and consultant for a line of beauty products, and LAH attended school and participated in several extracurricular activities. (Tr. 68:24-25, 72:16-23, 76:20-24; Pet'r's Ex. 20.) She testified further that LAH's grades were initially " very, very low" and she had behavioral problems, but that her performance in school improved over time. (Tr. 74:24-75:13.) According to Petitioner, LAH had several friends in Spain and had a close relationship with her half-sister, W. (Id. at 78:1-15.)
Although LAH was reluctant to discuss her life in Spain with the Court, she noted that the part of the country where she lived was " really, really good in the night," that she remembered playing with her sister and visiting " a little park" with horses, and that her home had a big patio or yard. (Id. at 253:25-254:11, 265:9-12.) Not all of her memories were positive, however. LAH also discussed instances in which her mother " mistreated" her, by pulling her hair while combing it (in LAH's view, purposely attempting to hurt her), pulling her ear, and striking her with a slipper. (Id. at 254:15-256:2.) LAH also explained that
her aunt, who lived with her, " liked to smoke," which bothered her, and that her aunt's boyfriend would " get drunk."  (Id. at 256:7-16.) When asked what she thought her life would be like if she returned to Spain to live with her mother, LAH responded that she would " be sad." (Id. at 269:21-25.)
Respondent testified that he called LAH approximately every other day while she was in Spain. (Id. at 531:12-13.) On one occasion, he explained, while on the phone with LAH she described how she and her younger sister were home by themselves, and told Respondent that the babysitter had locked them in the house and left. (Id. at 534:13-25.) When Respondent spoke to the babysitter approximately twenty-five minutes later, her statements and demeanor gave him the impression that it was not the first time the children had been left by themselves. (Id. at 534:24-535:9.) In her testimony, Petitioner acknowledged that she occasionally traveled for work and spent two weeks in the Dominican Republic, but emphasized that she never left LAH in the care of someone LAH did not know. (Id. at 82:3 6-83:2, 83:25-84:2.) Petitioner further testified that if she had learned that anyone had mistreated LAH, she would not have left her children with that person in the future. (Id. at 83:3-7.)
4. LAH's Travel to the United States
In the background of LAH's early years was the prospect that Respondent, and ultimately LAH, would obtain lawful residence in the United States. Respondent's mother obtained residence in 1998 through her sister, who was a United States citizen. (Id. at 210:4-9; Resp't's 39A at 251.) With his mother's " sponsorship," Respondent applied for residence in 2000, before LAH was born. (Tr. 211:7-8, 517:14-518:8.) Respondent moved to the United States in April 2011--while LAH was in Spain--and eventually obtained his residence. (Tr. 492:15-16, 539:38-25; Stipulation ¶ 9.)
When Respondent became aware that he could also apply for LAH's residence, he conferred with Petitioner, who agreed that LAH should apply for United States residence. (Tr. 518:9-25.) LAH's application for residence was submitted in 2008. (Id. at 518:10.)
a. Arrival in the Dominican Republic
In April 2012, the United States embassy in the Dominican Republic contacted Respondent to inform him that it had scheduled an interview for LAH's permanent residence application. (Tr. 541:1-5; Resp't's Ex. 25A at 366.) Although Petitioner was initially resistant, eventually she agreed to send LAH to the Dominican Republic and, ultimately, the United States, (Tr. 541:16-542:2, 542:19-544:5.) LAH arrived in the Dominican Republic on May 5, 2012, and completed the consular interview, accompanied by Respondent and his mother. (Id. at 544:4-9.)
LAH remained in the Dominican Republic until early July. She spent part of that time living with Petitioner's family and part living with Respondent, his mother, and other members of his family. (Tr. 87:17-20, 90:9-12.) Respondent left the Dominican Republic for the United States on June 26, 2012, and Petitioner arrived in the Dominican Republic from Spain on June 28, 2012. (Tr. 89:23-90:4, 544:17-19.)
b. Agreements Concerning LAH's Travel to the United States
There is no dispute that--with Petitioner's permission--LAH traveled from the Dominican Republic to the United States accompanied by Respondent's mother and arrived in the United States on July 12, 2012. (Tr. 224:19-20; Stipulation ¶ 12.) The conditions under which Petitioner agreed to send LAH to the United States are hotly contested, however, and the scope of her consent is one of the central questions in this case.
Petitioner, Respondent, and Respondent's mother were examined extensively about this issue. Each gave a slightly different account of the discussions leading up to LAH's visit to the United States, as well as the parties' conversations after LAH's arrival. The Court considers these accounts, as well as the written documents that the parties executed in advance of LAH's trip to the United States.
Written Agreements: Between 2008 and LAH's entry into the United States in 2012, Petitioner and Respondent executed a number of agreements related to LAH's application for United States residence. The first such document was a November 2008 power of attorney, in which Petitioner gave Respondent consent to sign on her behalf " as much documentation deemed necessary" for LAH to obtain her residence. (Pet'r's Ex. 6 / Resp't's Ex. 37.)
Additionally, in a document executed on May 5, 2010, Petitioner agreed that when the United States contacted Respondent about scheduling LAH's " appointment" for her legal residence, Petitioner would send the child to the consulate in the Dominican Republic and would permit her to travel to the United States. (Pet'r's Ex. 8 / Resp't's Ex. 99.) Respondent, in turn, agreed to return LAH to Petitioner " as soon as the Migration Department of the United States of America sends us the residence card." (Id.) The parties further agreed that LAH would " reside and study in Spain with her mother," and that she would " spend December and summer holidays in the United States of America with her father." (Id.)
On July 2, 2012--shortly before LAH left the Dominican Republic for the United States--the parties executed another document, in which Petitioner granted power of attorney to Respondent and his mother " so that [her] daughter [LAH] may travel accompanied by her grandmother to the United States to obtain United States residency." (Pet'r's Ex. 30 / Resp't's Ex. 38A.)
In addition to these three documents, Petitioner asserted that the parties also executed a fourth document, dated January 6, 2010. (Pet'r's Ex. 7.) Although this document is largely similar to the others--in that it grants Respondent and his mother power of attorney so that LAH can travel to the United States and obtain her residence--the document contains an important provision not found in any of the other documents: it states specifically that " the principal commits to send the child home to her father José Leopoldo Alonzo Morales, for six (6) months to allow the child to obtain the residency." (Id.) This agreement is the only document that references a defined time period after which LAH was to be returned to Spain--an important fact in determining when the
retention became " wrongful," a critical but disputed issue.
Although this document purportedly contains the signatures of both Respondent and Respondent's mother, both denied having signed it and asserted at the hearing that they had not seen the document until they were shown it in connection with this Petition, (Tr. 224:21-225:24, 547:12-21.) The Court credits their testimony and finds that the January 6, 2010 " Special Power for Travel Purposes" (Pet'r's Ex. 7) was not signed by either Respondent or his mother.
The Court makes this finding primarily because of several inaccuracies on the face of the document. In particular, the typed name of Respondent's mother and corresponding signature are both misspelled. Respondent's mother testified that her name is " Cirsa Morales de Rosario" (Tr. 209:22-24), a spelling that is consistent with her permanent resident card (Resp't's Ex. 39A at 251), her social security card (id.), and the July 2, 2012 power of attorney that she acknowledges signing (Pet'r's Ex. 30 / Resp't's Ex. 38A; Tr, 222:12-223:5).[7 ...