from the United States District Court No.
8:17-cv-02100-VMC-JSS, for the Middle District of Florida
JORDAN and ROSENBAUM, Circuit Judges, and MARTINEZ, [*] District Judge.
JORDAN, CIRCUIT JUDGE:
September of 2017, Johan Calixto filed a petition in federal
court seeking the return of his 5-year old daughter, M.A.Y.,
to Colombia, under the Hague Convention on the Civil Aspects
of International Child Abduction, Oct. 25, 1980, T.I.A.S. No.
11, 670, 1343 U.N.T.S. 89, as implemented in the United
States through the International Child Abduction Remedies
Act, 22 U.S.C. § 9001 et seq. Mr. Calixto had
signed a travel consent form allowing M.A.Y. to travel from
Colombia to the United States with her mother, Hadylle
Lesmes, from November of 2015 until November of 2016. In his
petition, Mr. Calixto alleged that Ms. Lesmes had wrongfully
retained M.A.Y. in the United States and away from Colombia,
her country of habitual residence, beyond November of 2016
and in violation of the Convention.
district court denied Mr. Calixto's petition for return.
It concluded that Ms. Lesmes' retention of M.A.Y. in the
United States was not wrongful under the Convention because
Mr. Calixto and Ms. Lesmes had shared an intent to change
M.A.Y.'s habitual residence from Colombia to the United
States, and because M.A.Y.'s habitual residence had
subsequently become the United States through
acclimatization. The district court did not, however, address
whether Mr. Calixto's intent to change M.A.Y.'s
habitual residence was conditioned upon his joining Ms.
Lesmes and M.A.Y. in the United States or whether that intent
was vitiated once Mr. Calixto was unable to come to the
United States. The answers to those questions are critical to
the proper disposition of this appeal, and because shared
intent is a factual determination, we remand for further
Hague Convention seeks "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." Hanley v. Roy, 485 F.3d 641, 644
(11th Cir. 2007). "The [C]onvention is intended as a
rapid remedy for the left-behind parent to return to the
status quo before the wrongful removal or retention."
Ruiz v. Tenorio, 392 F.3d 1247, 1250 (11th Cir.
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." Baran v.
Beaty, 526 F.3d 1340, 1344 (11th Cir. 2008) (quoting 22
U.S.C. § 9001(b)(4)). Thus, "[a] court's
inquiry is limited to the merits of the abduction claim and
not the merits of the underlying custody battle."
Ruiz, 392 F.3d at 1250 (citation omitted). See
also Seaman v. Peterson, 766 F.3d 1252, 1257 (11th Cir.
2014) ("[T]he central purpose of the Convention and
ICARA in the case of an abducted child is for the court to
decide as a gatekeeper which of the contracting states is the
proper forum in which the issue of custody should be
who are wrongfully removed or retained "are to be
promptly returned unless one of the narrow exceptions set
forth in the Convention applies." 22 U.S.C. §
9001(a)(4). The removal or retention of a child in a
signatory state is wrongful where
a) it is in breach of rights of custody attributed to a
person . . . under the law of the State in which the child
was habitually resident immediately before the removal or
b) at the time of removal or retention those rights were
actually exercised . . . or would have been exercised but for
the removal or retention.
art. 3. See also Ruiz, 392 F.3d at 1251.
petitioner seeking a child's return bears the burden of
proving, by a preponderance of the evidence, that the child
was wrongfully removed or retained. See Chafin v.
Chafin, 742 F.3d 934, 938 (11th Cir. 2013); 22 U.S.C.
§ 9003(e)(1)(A). To prove that a child's retention
is wrongful, a petitioner must show that the child was a
habitual resident of another country at the time of the
retention, that the retention breached his or her custody
rights under the law of that other country, and that he or
she had actually been exercising those custody rights at the
time of retention. See Chafin, 742 F.3d at 938.
See also Neergaard-Colon v. Neergaard, 752
F.3d 526, 531 & n.2 (1st Cir. 2014); Larbie v.
Larbie, 690 F.3d 295, 307 (5th Cir. 2012); de Silva
v. Pitts, 481 F.3d 1279, 1285 (10th Cir. 2007).
the Hague Convention concerns children who have been
wrongfully removed or retained from their country of habitual
residence, neither the Convention nor ICARA defines habitual
residence. In Ruiz, we cited approvingly one
characterization of the phrase as requiring "that the
purpose of living where one does has a sufficient degree of
continuity to be properly described as
settled." 392 F.3d at 1252 (emphasis added and
Ruiz, as here, we were concerned with how and when a
child's habitual residence might change from one country
to another, not with how an initial habitual residence comes
to be in the first place. To that end, we decided to follow
and adopt the reasoning of the Ninth Circuit in Mozes v.
Mozes, 239 F.3d 1067 (9th Cir. 2001), and held that
"[t]he first step toward acquiring a new habitual
residence is forming a settled intention to abandon the one
left behind." Ruiz, 392 F.3d at 1252 (citation
omitted). "[T]he relevant intention or purpose which has
to be taken into account is that of the person or persons
entitled to fix the place of the child's residence."
Id. at 1253 (citations and internal quotation marks
omitted). "This settled intention is crucial because
there can be no bright line rule with respect to the length
of an absence," and we must therefore "pay close
attention to subjective intent." Id. (citations
and internal quotation marks omitted).
analyzing whether a child's habitual residence has
changed, a court must first determine whether the parents or
guardians (i.e., the persons entitled to fix the place of the
child's residence) shared an intent to change the
child's habitual residence. See id. The
"unilateral intent of a single parent" will not
suffice to change a child's habitual residence. See
Redmond v. Redmond, 724 F.3d 729, 745 (7th Cir. 2013)
(citing Mozes, 239 F.3d at 1075-77).
acknowledged in Ruiz, "the difficult cases
arise when the persons entitled to fix the child's
residence do not agree on where it has been fixed."
Ruiz, 392 F.3d at 1253. See also Mozes, 239
F.3d at 1076. "Although the settled intention of the
parents is a crucial factor, it cannot alone transform the
habitual residence." Ruiz, 392 F.3d at 1253.
There must also be "an actual change in geography and
the passage of a sufficient length of time for the child to
have become acclimatized." Id. (citing
Mozes, 239 F.3d at 1078). The evidence required to
show acclimatization becomes greater if there was no shared
settled intent of the parents to change a habitual residence.
See Chafin, 742 F.3d at 938 ("[A]fter an
initial finding that parents lack a settled intent to abandon
their child's prior habitual residence for a new one, the
burden on the party asserting a change in habitual residence
increases.") (citation omitted).
there is "no shared settled intent on the part of the
parents to abandon the child's prior habitual residence,
a court should find a change in habitual residence if the
objective facts point unequivocally to a new habitual
residence." Ruiz, 392 F.3d at 1254 (citation
omitted). A change in habitual residence can also be found if
a court can "say with confidence that the child's
relative attachments to the two countries have changed to the
point where requiring a return to the original forum would
now be tantamount to taking the child out of the family and
social environment in which its life has developed."
Id. (citation and internal quotation marks omitted).
many cases, some facts are undisputed, and some-like those
concerning the status of the relationship between Mr. Calixto
and Ms. Lesmes in November of 2015 and the circumstances
related to the travel of Ms. Lesmes and M.A.Y. to the United
States-are hotly contested. We begin with the facts that are
not in dispute, and then turn to those that are.
Calixto and Ms. Lesmes were both born in Colombia. They met
there and began a romantic relationship in 2007. On June 17,
2012, Ms. Lesmes gave birth to their daughter, M.A.Y., who
lived continuously and exclusively in Colombia until November
of 2015. Although the parties quarrel over aspects of their
romantic relationship and how long they lived together-more
about that later-it is undisputed that the relationship
continued, in some form, through at least August of 2015, and
that they lived together as a couple at various points during
that relationship. Mr. Calixto and Ms. Lesmes were once
engaged, but Ms. Lesmes broke off the engagement and the two
never married. See D.E. 63 at 79- 80, 120.
Yusuf, Ms. Lesmes' father, lives in the United States as
a permanent resident. See D.E. 64 at 109. Ms. Lesmes
testified that she had long intended to join him and become a
U.S. permanent resident as well. See D.E. 63 at 119.
Mr. Yusuf sponsored her application for U.S. permanent
residency around 2001-02, see D.E. 64 at 109, well
before the parties began their relationship. Ms. Lesmes said
that she made clear to Mr. Calixto when they began dating her
desire to ultimately move to the United States. See
D.E. 63 at 119-20. Ms. Lesmes ...