Flores-Aldape v. Kamash

Citations: 202 F. Supp. 3d 793; 2016 WL 4430835; 2016 U.S. Dist. LEXIS 111469Docket: Case No. 3:15 CV 2076

Court: District Court, N.D. Ohio; August 22, 2016; Federal District Court

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Javier Flores-Aldape seeks the return of his minor child, C.F., from the United States to Mexico, claiming wrongful retention under the Hague Convention, as enacted by the International Child Abduction Remedies Act (ICARA). Defendant Fatin Shawki Kamash contends that C.F.’s habitual residence is the United States and argues that exceptions to the Hague Convention apply to her case. 

The evidentiary hearing took place over three sessions in June and July 2016, during which the court reviewed various briefs from both parties. 

Javier, a Mexican citizen studying in Germany, met Fatin, an Iraqi native and U.S. resident, online in 2009. After Javier secured a job in Mexico in 2011, Fatin visited him, and they later married in November 2012 in Michigan. Fatin moved to Mexico in December 2012 but did not secure employment there, focusing instead on language studies and home renovation. 

Fatin became pregnant in July 2013, returned to the U.S. for an immigration interview, and gave birth to C.F. in March 2014 in Michigan, where they remained for four months. During this time, Fatin worked and initiated a U.S. visa application for Javier. In July 2014, Fatin and C.F. traveled to Mexico with round-trip tickets, leaving many personal belongings in the U.S., including C.F.’s items, while maintaining a joint bank account with Javier.

Fatin, Javier, and their daughter C.F. lived in Querétaro, Mexico, where C.F. was baptized in August 2014. Following Javier's job loss at General Electric later that month, the family relied on Javier's savings and support from his parents. C.F. received vaccinations from a local pediatrician but had limited community interaction due to her age. Fatin obtained a Mexican permanent resident card and a bank account, and she renewed Medicaid for herself and C.F. with Javier's consent. 

In spring 2015, the family celebrated C.F.'s first birthday and vacationed with Javier's family. Meanwhile, Javier sought employment and considered a Ph.D. program, while Fatin was accepted into a pharmacy program in Ohio for fall 2015. Their relationship deteriorated, leading to discussions of divorce. Initially scheduled to fly to Michigan on April 30, 2015, Fatin had to reschedule due to an epileptic seizure. When they departed on May 10, Javier drove them to the airport, and they parted amicably.

Upon arriving in Michigan, Fatin resumed tutoring and enrolled C.F. in daycare, while also applying for WIC and child care assistance. Javier arranged payment for his Immigrant Visa processing fee while still in Mexico. Although they maintained contact over the summer, communication became strained. Tensions escalated in early August when Fatin informed Javier that she and C.F. would not return to Mexico, leading to a dispute over whether this was a surprise to Javier. Fatin claimed she intended to stay indefinitely and was accepted into university, while Javier asserted he was unaware of her plans and hired a private investigator to locate her for legal purposes.

Fatin and Javier provided differing accounts regarding their future plans as a family. The court found Fatin's testimony credible, reflecting a desire to eventually establish a long-term home in the U.S. However, it determined that they did not intend to initiate this process with Fatin and C.F.'s May 2015 trip to Michigan. Javier's June 2015 email outlined their agreement for the trip, emphasizing the expectation of returning to Mexico after the summer and acknowledging their current residence in Mexico. Fatin confirmed the trip's temporary nature in her communications. Javier expressed distress in an email after their August phone call, feeling betrayed by Fatin's failure to adhere to their agreement. Following this, Javier filed a Hague Convention application in September 2015 and a petition for C.F.'s return, which was initially dismissed due to Fatin and C.F. relocating to Ohio. Javier re-filed the petition in October 2015.

The Hague Convention aims to protect children from wrongful removal or retention and mandates their prompt return to their habitual residence, which, in this case, is Mexico. The U.S. and Mexico are both signatories, and the court's jurisdiction is limited to determining the wrongful removal claim, without addressing the underlying custody issues. A child's removal is deemed "wrongful" if it breaches the other parent's custody rights, as defined by the habitual residence's laws, and if those rights were being exercised at the time of removal.

The petitioning parent must demonstrate by a preponderance of evidence that a child's removal or retention was "wrongful" under 22 U.S.C. 9003(e)(1)(A). If the petitioner establishes a prima facie case for return, the burden shifts to the respondent to prove one of several affirmative defenses, including that the petitioner was not exercising custody rights at the time, consented to the removal, the child objects to return, returning would pose a grave risk of harm, or the child is now settled in a new environment after a delay of over a year.

In this case, Javier alleges wrongful removal and retention of his child, C.F. Fatin contends that the child’s habitual residence is the United States, negating claims of wrongful removal under the Hague Convention. She further argues that Javier did not exercise custody rights during the removal, consented to it, and that C.F. is now settled in the U.S.

Javier claims Fatin misled him regarding her intentions, convincing him to allow C.F. to travel to the U.S. under the premise that they would return to Mexico in mid-August. He argues that her lack of intent to return invalidates his consent. However, legal precedent indicates that misrepresentation does not negate initial consent, and wrongful removal is typically not recognized unless the petitioning parent has clearly communicated a withdrawal of consent after the initial agreement. Javier initially consented to C.F.'s travel to Michigan, thus failing to establish wrongful removal based on the arguments presented.

Fatin and C.F. did not return to Mexico in early August 2015, confirmed by a phone conversation between Fatin and Javier, where Javier expressed his opposition to C.F. remaining in the U.S., stating, "you have stolen my baby from me." This communication establishes August 5, 2015, as the date of C.F.'s retention. The determination of whether this retention was "wrongful" under the Hague Convention hinges on C.F.'s habitual residence prior to that date. If she was habitually residing in the U.S. as of August 4, 2015, the retention was not wrongful; if she was a habitual resident of Mexico, it was wrongful, necessitating her return unless Fatin provides an affirmative defense.

The term "habitual residence" is not defined by the Hague Convention or ICARA, but the Sixth Circuit defines it as the place where a child has been physically present long enough to acclimatize and establish a degree of settled purpose. This assessment focuses on the child's experience rather than the parents' intentions and requires a change in geography and time to establish a new habitual residence. 

Unlike other Circuits, the Sixth Circuit does not factor in parental intent to determine habitual residence, except in cases involving very young children or those with developmental disabilities. In such instances, parental intent may be relevant, particularly because a very young child may not be able to form a meaningful connection to a location. C.F. was four months old when she left the U.S. and fourteen months old during a visit to Michigan, indicating that her understanding of her environment is largely shaped by her parents. It is challenging for an infant to establish a habitual residence independent of their parents' immediate home environment, making it difficult to separate the habitual residence of a child from that of their custodian.

Parental intent becomes complex in cases of disagreement over a child's living arrangements, particularly in Hague Convention disputes. Courts categorize these cases into three types: 

1. **Settled Intent to Change Residence**: A family demonstrates a clear intention to move, even if one parent has reservations (as seen in Mozes v. Mozes). 
2. **Specific, Delimited Stay**: The child's stay abroad is intended for a defined period.
3. **Ambiguous Duration**: One parent consents to a stay of unclear length.

In the case of C.F., despite being born in the U.S., evidence indicates that Javier and Fatin intended to establish their home in Mexico, reflected by their actions such as jointly renovating their home in Querétaro and engaging in family activities there. Javier's employment in Mexico and subsequent job searches, alongside Fatin obtaining residency and a bank account, further support this settled purpose. Although they discussed future relocation to the U.S., the court focuses on their last shared intent, which as of August 2015, indicated no agreement to leave Mexico. Fatin's desire to return to Michigan does not negate their initial shared intent to remain in Mexico. Thus, C.F.’s temporary visit to the U.S. in summer 2015 does not alter her habitual residence.

Consequently, C.F. must be returned to Mexico unless Fatin can demonstrate an affirmative defense under the Hague Convention, which requires showing that Javier was not exercising his custody rights at the time of C.F.'s retention, as defined by the laws of the child's habitual residence. Each defense must meet a preponderance of the evidence standard.

Javier submitted affidavits from two Mexican attorneys regarding the legal concept of patria potestas, which denotes parental authority and involves the rights and obligations to care for a child, as defined by the Civil Code of Querétaro. Courts in the Circuit have previously interpreted Mexican custody law, affirming that both parents jointly exercise patria potestas. It is established that a parent with de jure custody rights is deemed to "exercise" those rights if they maintain regular contact with their child. Courts avoid assessing the quality of this contact, as such determinations fall under the jurisdiction of custody tribunals. In this case, Javier attempted to communicate with his child, C.F., after she moved to Michigan, although his efforts were reportedly limited and financial support was minimal. However, these actions did not constitute clear abandonment of custody rights.

Regarding consent and acquiescence, Javier initially consented to C.F.'s removal from Mexico. The matter at hand is whether he acquiesced to her retention in the U.S. Acquiescence requires a formal act, a written renunciation of rights, or a consistent pattern of acceptance over time. Javier did not make any formal statements or written renunciations regarding his rights, nor did he exhibit a consistent attitude of acquiescence. Instead, he expressed objections to C.F.’s absence and promptly initiated Hague Convention proceedings upon learning she would not return to Querétaro. Thus, the evidence does not support a finding of acquiescence regarding C.F.’s retention in the United States.

The "now settled" defense under Article 12 of the Hague Convention is at issue between the parties. Fatin's briefs do not clearly indicate that she asserts this defense, instead focusing on C.F.’s habitual residence in the U.S. through acclimatization and "settled purpose." If Fatin intends to assert the "now settled" defense, it is deemed inapplicable because Javier filed his Petition in October 2015, two months after C.F.'s retention. Article 12 mandates that if the petition is filed within one year, the court must order the child's return. Even after one year, a return can only be denied if it is established that the child is now settled. Since Javier's filing occurred before the one-year mark, the court does not need to consider C.F.'s "now settled" status.

The document expresses regret over the marital strife impacting both families, educational opportunities, and the child's situation. Despite attempts at mediation, the court emphasizes it is not a family court and must make a final decision on Javier’s Hague Petition, allowing the parties to address their divorce and custody in the appropriate jurisdiction. The court grants Javier's Petition for C.F.'s return to Mexico and instructs the parties to negotiate the details of the return and related costs. If they cannot reach an agreement, they must seek further direction from the court. Additionally, the court notes the dispute regarding the round-trip tickets purchased by Javier and the ambiguity surrounding Fatin’s intent regarding her permanent residency status, although this does not significantly impact the court's analysis.