United States District Court, S.D. New York
IN RE THE APPLICATION OF JUANA LIVIA DURAN-PERALTA, Plaintiff/Petitioner,
JOHNNY ANTONIO LUNA, Defendant/Respondent.
OPINION AND ORDER
Juana Livia Duran-Peralta, a resident and citizen of the
Dominican Republic, brought this action against respondent
Johnny Antonio Luna, a resident and citizen of the United
States, seeking the return of the parties' minor child
("IM") from the United States to the Dominican
Republic under the Civil Aspects of International Child
Abduction (the "Hague Convention") and the
International Child Abduction Remedies Act
("ICARA"), 22 U.S.C. § 9001 et seq. (2000).
See Complaint, ECF No. 1; Amended Complaint, ECF No. 12. IM
was born in the Dominican Republic on August 5, 2015. On
October 12, 2015, respondent took IM to the United States.
Respondent has kept IM in the United States since then
despite petitioner's appeals that respondent return IM to
the Dominican Republic, which culminated in this lawsuit.
Familiarity with all prior proceedings is here presumed.
9, 2017, petitioner moved for summary judgment, ECF No. 31,
but included only a barebones, ten-sentence Rule 56.1
Statement, see ECF No. 32. In support of his opposition to
this motion, respondent submitted a declaration attesting to
facts never before raised in these proceedings but creating a
genuine dispute of material fact. See Declaration of Johnny
Antonio Luna ("Luna Decl."), ECF No. 34-4. On
August 29, 2017, the Court held an evidentiary hearing that
became, without opposition, a bench trial on petitioner's
claims. See Transcript dated Aug. 29, 2017 ("Tr.")
at 9:7-10. Both petitioner and respondent testified and were
provided with an opportunity to present witness testimony and
this hearing/trial, the Court invited the parties to submit
proposed findings of fact and conclusions of law and response
briefing. See Tr. at 138:15-139:10. While some facts
were undisputed, determination of many of the material facts
turned on the Court's assessment of the witnesses'
credibility, including the Court's examination of their
demeanor. Based on these assessments and the submitted
written and oral evidence, the Court makes the following
findings of fact and conclusions of law.
parties offer strikingly different accounts of their
relationship. According to petitioner, she and respondent
were romantically involved for several years, during which
time she became pregnant with IM. Respondent, on the other
hand, claims that petitioner served as a surrogate for him
and his wife and that he and petitioner were never
romantically involved. As detailed below, the Court found the
testimony of petitioner considerably more credible than that
of respondent and those who testified on his
to respondent, after he and his wife decided to look for a
surrogate in the Dominican Republic, see Tr.
105:22-106:13, he was put in touch with petitioner, who
agreed be their surrogate in exchange for respondent's
assistance in bringing her and her 13-year old daughter to
the United States, id. at 111:9-15, 113:4-7,
119:4-7, 122:22-123:1, 125:18-126:3 (Luna). Respondent
alleged that petitioner "offered herself to [him] . . .
many times, not only one time. Many times, "
id. at 125:15-16, assuring him that she would get
pregnant, id. at 108:17-19. Respondent testified
that he and petitioner had sex only one time, as a result of
which respondent became pregnant with IM. Id. at
109:14-23 (Luna). Respondent also suggested that he never
socialized with petitioner before she became pregnant,
id. at 103:1-3 (Luna), but this contention is
contradicted by his later testimony that, during that time,
he sometimes saw petitioner at the home of another woman,
id. at 108:11-22.
addition to the belatedness with which respondent raised his
entire "surrogate" story and the many
contradictions in respondent's testimony, the Court finds
significant that there was no written surrogacy agreement,
see id. at 112:15-24 (Luna); that respondent made no
effort to help petitioner come to the United States, see
id. at 123:2-12 (Luna) (he "wanted to do [his]
part" of the alleged bargain but did not); that
respondent did not tell his wife that he slept with the
alleged potential surrogates until after his deposition in
this case, see id. at 120:1-7, 120:23-121:11,
121:24-122:21 (Luna); and that respondent is currently
seeking custody of another young child he fathered with a
woman living in the Dominican Republic, whom he does not
allege served as a surrogate for him and his wife,
see Plaintiff's Proposed Findings of Fact and
Conclusions of Law Ex. A ("Luna Dep.") 'at
25:1-20, ECF No. 44. Furthermore, respondent's claim that
petitioner bore IM as a surrogate for respondent and his wife
was not corroborated by any other evidence, and petitioner
credibly denied that respondent had ever asked her whether
she would be willing to have a child that she would give up
to him and to his wife in the United States. Tr. 30:10-14
Court accordingly finds the following facts based largely on
petitioner's testimony. Petitioner, the mother of IM,
lives with her eldest daughter in Santo Domingo in the
Dominican Republic, where she has lived her entire life.
Id. at 10:13-17 (Duran-Peralta). Respondent was also
born in Santo Domingo. Id. at 37:20-21
(Duran-Peralta); id. at 106:9-10 (Luna). He
currently lives in the United States with his wife, to whom
he has been married for about ten years. Id. at
105:16-21, 106:2-4 (Luna). Respondent has five children in
addition to IM: a ten-year old child by his wife, three
children (aged ten, fourteen or fifteen, and twenty-three) by
three different women who live in the United States, and a
one-year old child whose mother lives in the Dominican
Republic. Luna Dep. at 22-25, 44-47.
and respondent met in 2012, when he would stop by the
"exchange house" next to where she worked,
see Tr. 99:23-24 (Luna), and shortly thereafter
began a romantic and sexual relationship. IcL at 10:20-11:2,
11:7-23 (Duran-Peralta). They stopped seeing each other at
some point in 2013 but resumed their sexual relationship in
or around October 2014. Id. at 12:7-13:22.
Throughout their relationship, petitioner knew that
respondent was married in the United States. Id. at
16:4-6. While respondent was in the United States, he and
petitioner sometimes exchanged affectionate text messages.
See, e.g., id. at 126:20-21 (Luna)
("[W]e're going to see each other soon. I can't
wait to get there."); Id. at 127:13
("Love, tell me what you want to --"); id.
at 128:4-6 ("I remember that when you spoke, I was
looking at you with desire. I wanted to eat you
she became pregnant, petitioner quit her job and respondent
financially supported her. Id. at 33:15-17
(Duran-Peralta). In June 2015, respondent rented a house for
petitioner in anticipation of IM's birth. Id. at
17:12-18:1, 33:9-11 (Duran-Peralta); id. at 111:9-12
(Luna). IM was born in the Dominican Republic on August 5,
2015. Id. at 17:3-4; Defendant's Proposed
Findings of Fact and Conclusions of Law ("Def.
Br.") at 3 ¶ 25, ECF No. 45. Respondent was not in
the Dominican Republic when IM was born but he visited her
there for several days about a week after she was born. IcL
at 18:13-19:2 (Duran-Peralta) .
medical problems after her birth, including neurological
complications from a knotted umbilical cord and a skin
condition called scabiasis. Id. at 19:20-20:6
(Duran-Peralta). Respondent told petitioner that he did not
want IM to go to doctors m Santo Domingo, id. at
21:9-13, and the parties discussed the possibility of seeking
medical treatment for IM in the United States,
(Duran-Peralta); see also JUANA0043 (petitioner
asking respondent whether he looked into the "doctor
thing") (August 19, 2015 text message). Respondent told
petitioner that his sister, who is a doctor, would see IM in
New York. Id. at 20:25-21:1 (Duran-Peralta); see
also JUANA00045 (respondent telling petitioner that he
would send IM's sleep schedule to his sister) (September
5, 2015 text messages). Accordingly, in September, petitioner
signed what she understood to be an authorization permitting
respondent to bring IM to the United States. Tr. 38:12-15.
This "authorization" most likely was an application
for an American passport, which petitioner and respondent
filled out at the law office of Justina Echavarria.
Id. at 61:14-16 (J. Echavarria).
October 2015, respondent visited the Dominican Republic
again. When he returned to the United States, on October 12,
2015, he brought IM with him. Tr. 21:18-20 (Duran-Peralta);
see also Def. Br. at 5 ¶ 44. Petitioner
believed that respondent was taking IM to the United States
for just two months for the sole purpose of receiving medical
treatment and that he would return her to the Dominican
Republic in December. See id. at 20:23-21:25.
November 2015, respondent returned to the Dominican Republic
(without IM) and told petitioner that he needed a new
authorization to take IM to doctors in the United States.
Id. at 22:6-12. Petitioner and respondent made
another visit to Justina Echavarria's law office on
November 5, 2015 and signed a document that petitioner
believed authorized respondent to seek medical treatment for
IM in the United States but in fact provided that petitioner
waived her maternal rights over IM (the "Release").
IM was in the United States, petitioner "was
communicating constantly with" respondent. Id.
at 24:19. She inquired about the status of the doctors'
visits and asked respondent to send pictures and videos of
IM, which he did. See, e.g., JUANA00048-50
(text messages dated October 17-20, 2015); JUANA00054 (text
messages dated November 18-20, 2015). She also
"constantly" sent "him messages asking him why
[he] didn't bring the girl back." Id. at
24:19-23; see also JUANA0060 (text mess.age dated
December 26, 2015); JUANA00065 (text message dated December
27, 2015). Respondent provided various reasons for why he
could not bring IM back, such as that "he didn't
have any money to travel back to Santo Domingo, [or] that he
had too much work." Id. at 25:4-5. Respondent
has never returned to the Dominican Republic with IM. See
id. at 24:14-16. Petitioner filed the instant action on
October 11, 2016. See Complaint, ECF No. 1.
Hague Convention, to which both the United States and the
Dominican Republic are signatories,  was enacted "'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.'" Gitter v.
Gitter, 396 F.3d 124, 129 (2d Cir. 2005) (quoting
Hague Convention, Preamble, 51 Fed. Reg. at 10, 498). The
Convention "places at the head of its objectives the
restoration of the status quo, by means of the
prompt return of children wrongfully removed to or retained
in any Contracting State." Gitter, 396 F.3d at
130 (internal quotation omitted); see also Hague
Convention, art. 1 ("The objects of the . . . Convention
are: (a) to secure the prompt return of children wrongfully
removed to or retained in any Contracting State; and (b) to
ensure that rights of custody and of access under the law of
one Contracting State are effectively respected in the other
Contracting States."). ICARA implements the Hague
Convention. See Ozaltin v. Ozaltm, 708 F.3d 355,
359-360 (2d Cir. 2013). Significantly, "[t]he Convention
and [ICARA] empower courts in the United States to determine
only rights under the Convention and not the merits of any
underlying child custody claims." 22 U.S.C. §
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 or retained in a
different State, " and that the removal or retention was
"wrongful" because "(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
removal or retention." Gitter, 396 F.3d at
130-131. A petitioner must make these showings by a
preponderance of the evidence. 22 U.S.C. § 9003(e)(1).
respect to the first prong, the Hague Convention does not
itself provide any definition of "habitually
resident." Gitter, 396 F.3d at 134. Courts in
the Second Circuit use the following approach in ...