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Alzat Calixto v. Lesmes

United States Court of Appeals, Eleventh Circuit

November 30, 2018

HADYLLE YUSUF LESMES, Defendant-Appellee.

          Appeal from the United States District Court No. 8:17-cv-02100-VMC-JSS, for the Middle District of Florida

          Before JORDAN and ROSENBAUM, Circuit Judges, and MARTINEZ, [*] District Judge.


         In 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.

         The 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 factual findings.


         The 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. 2004).

         "The 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 decided.").


         Children 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 retention; and
b) at the time of removal or retention those rights were actually exercised . . . or would have been exercised but for the removal or retention.

         Convention, art. 3. See also Ruiz, 392 F.3d at 1251.

         A 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).


         Although 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 citations omitted).

         In 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).

         In 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).

         As we 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).

         If 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).


         As in 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.


         Mr. 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.

         Samir 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 ...

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