Documentos de Académico
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Before
Lynch, Chief Judge,
Souter, Associate Justice,*
and Stahl, Circuit Judge.
David H. Chen, with whom John A. Sten and McDermott Will &
Emery LLP were on brief, for appellant.
Amber R. Cohen, with whom Cohen Cleary, P.C. was on brief, for
appellee.
STAHL,
Circuit
Judge.
Petitioner-Appellee
Federico
claims
that
Respondent-Appellant
Maya
K.
May,
the
court granted the father's petition and ordered the child's return,
reasoning that, inter alia, C.F.F.M.'s habitual residence lay in
Argentina because Petitioner never fully agreed to allow C.F.F.M.
to move to the United States.
of Argentina.
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That summer,
Per the
to
authorize
Respondent's
travel
with
C.F.F.M.
in
Respondent's
apartment
the
day
returned
from
Additionally,
against
the
each
parties
other.
filed
After
an
domestic
violence
investigation,
an
-4-
During an
Petitioner
allow
C.F.F.M.
to
to
Massachusetts
with
Respondent.
C.F.F.M.
Petitioner
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family could see C.F.F.M. any time now that the child was moving to
the United States, but confirmed a January 8, 2014 move date.
In their correspondence, Respondent expressed frustration
that even though the two had agreed that C.F.F.M. should move to
the United States and Respondent had relocated to Boston with that
decision in place, Petitioner had yet to draft or sign a new
coparenting agreement.
complaints
against
Respondent
and
her
mother.
The
Respondent
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and resolve the latter issue; shortly after the hearing, they
informed the judge that they were unable to agree on a resolution.
On February 14, the judge issued a decision denying Respondent's
request for travel authorization, reasoning that the evidence
presented to him indicated "an environment of disagreements and
hostilities
between
[the
parties]"
which
would
make
trip
disfavorable to C.F.F.M.
That same day, Respondent left Argentina with her mother
and C.F.F.M.
near Brazil and Paraguay, and on February 15, made three trips into
Brazil and Paraguay in search of an airport where C.F.F.M. could
travel to the United States without scrutiny of his visa.
On
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and
Respondent
have
lived
in
Roslindale,
December 2014, and issued its order granting the petition and
-8-
This expedited
appeal followed.
II. Analysis
A. The Hague Convention
The
Hague
Convention
on
the
Civil
Aspects
of
ninety
countries,
including
the
United
States,
disputes.
The Convention
Cir. 2014).
A petitioner seeking the return of a child under the
Convention
must
preponderance
of
establish
the
the
child's
evidence.
22
wrongful
U.S.C.
removal
by
9003(e)(1)(A);
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those
rights.
Hague
Convention,
art.
3;
custodial
decisions
will
be
made
by
It simply ensures
the
courts
of
the
Neergard-Coln v.
appeal,
Respondent
disputes
that
Petitioner
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cannot
be
rejected
just
because
the
record
might
sustain
B. Habitual Residence
We begin and end with the question of C.F.F.M.'s habitual
residence at the time of removal. See Redmond v. Redmond, 724 F.3d
729, 742 (7th Cir. 2013) ("[E]very Hague Convention petition turns
on the threshold determination of the child's habitual residence;
all other Hague determinations flow from that decision."); Tsai-Yi
Yang v. Fu-Chiang Tsui, 499 F.3d 259, 271 (3d Cir. 2007) (same).
Removal under the Hague Convention is only appropriate if
the child is being retained in a country other than his or her
place of habitual residence.
100, 10304 (1st Cir. 2010); Redmond, 724 F.3d at 74243; Mozes v.
Mozes, 239 F.3d 1067, 107172 (9th Cir. 2001).
In determining a
-11-
Typically, evidence of
the
face
of
shared
parental
intent
to
the
contrary.
parent from one country to another, the record must evidence the
parties' latest settled intention for the child to abandon a former
place of habitual residence and acquire a new one. Darin, 746 F.3d
at 11.
has
already
agreed
to
the
child's
taking
up
habitual
The record is
For
of him going there when it would be just two or three weeks before
he
moves
there."
On
October
10,
Petitioner
suggested
that
Respondent meet him and C.F.F.M. in Miami in January 2014 and then
take the child back to Boston, since Petitioner and his family had
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After
Respondent renewed
her
family's
holiday
celebration
in
New
York;
Petitioner
[sic]" and that Respondent's family "will have plenty of time [to
spend with the child] know [sic] that [C.F.F.M.] is going to be in
the us [sic] living there."
emailed Petitioner and stated that she would invoke her forty-five
day travel authorization in order to take C.F.F.M. with her to
Boston on December 4, 2014, triggering the breakdown in the
parties' communications.
Even though Petitioner changed his mind and decided that
he did not want C.F.F.M. to move to Boston, the record establishes
that the last shared intent of the parties was for their son to
relocate permanently with his mother soon after C.F.F.M. finished
the Argentine school year in December 2013. The "unilateral wishes
of one parent are not sufficient" to overcome the last settled
purpose of the parents. Snchez-Londoo, 752 F.3d at 540 (internal
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Re
Bates, No. CA 122/89, High Court of Justice, Family Div. Ct. Royal
Courts of Justice, United Kingdom (1989), available at 1989 WL
1683783.
The mother brought the child from the West Coast to New
A few
days later, the father telephoned his daughter's nanny and told her
to take the child to London, where the father owned a house.
The
in New York, reasoning that the "arrangements that had been agreed,
however acrimoniously" by the parties "amounted to a purpose with
a sufficient degree of continuity to enable it properly to be
described as settled," though at the time the parents made the
decision the child had only briefly visited New York before. Here,
the district court erroneously reasoned that Petitioner never
signed a written agreement memorializing the parties' new parenting
plan, and refused to issue a travel authorization permitting
C.F.F.M. to leave Argentina.
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evidence of a parties' agreement may inform a court's decisionmaking, we reject the idea that such formal documentation is
required to establish the settled intention of the parties.
Additionally, the district court misapplied the governing
law of this circuit when it held that a change in habitual
residence "requires an actual 'change in geography,'" citing a case
from the Ninth Circuit.
First, it requires an
residence
analysis.'")
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(emphasis
added)
(quoting
child's
presence
in
new
Lest there be
country
of
habitual
move
his
or
her
child
immediately
upon
the
formation
of
an
uniformly
applicable
'test'
for
determining
habitual
the
district
court
erred
in
its
habitual
residence
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