Opinion
Civil No. 04-1276 (HL).
May 20, 2004
REPORT AND RECOMMENDATION PROCEDURAL BACKGROUND
On April 1, 2004, Sandra Silvia Gonzélez Locicero ("Petitioner") filed a Complaint for Return of Child Wrongfully Retained against Walter Marcos Nazor Lurashi ("Respondent"). ( Docket No. 1). The Petition was filed pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, as implemented by the International Child Abduction Remedies Act, 42. U.S.C. § 11601-11610. Petitioner claims her child son Alan Nazor (hereafter the "child") was wrongfully retained in Puerto Rico by his father (Respondent) without authorization and kept from returning home to Argentina. Petitioner alleges the child, along with his sister, traveled to Puerto Rico in February 2003 for vacation with their father with the understanding the children would return to Argentina to resume their academic studies. However, when the time came for the children to return, Respondent informed Petitioner he would not allow the children to return to Argentina and thereby, wrongfully retained them in Puerto Rico on or around March 2003. After many conversations, Respondent agreed to return the child's sister to Argentina but retained the child. Petitioner requests from the Court an order of immediate return of the child to his habitual residence in Argentina; an immediate provisional order prohibiting the removal of the child from the jurisdiction of the Court; an order to show cause commanding Respondent to show cause why the child has been retained and kept from returning to Petitioner and; an order directing Respondent to pay Petitioner reasonable legal costs and fees.
On May 11, 2004, Respondent filed his Answer to the Petition in essence denying the facts as alleged in the Complaint. (Docket entry No. 4).
The presiding judge, Hon. Héctor M. Laffitte, issued an order on May 14, 2004, referring the case to this Magistrate Judge for an initial status conference and Report and Recommendation. (Docket entry No. 5).
On May 14, 2004, an Order was issued by this Magistrate Judge in which Respondent was ordered to appear before the Court on May 18, 2004 at 9:00 am, accompanied by the child, for a hearing to show cause why the child has been retained and kept from returning to Argentina with Petitioner. (Docket entry No. 6).
On May 14, 2004, Respondent filed a Motion to Vacate Referral to Magistrate Judge and requesting that the hearing be held before Hon. Judge Héctor M. Laffitte. (Docket entry No. 7). On May 17, 2004, Hon. Judge Laffitte denied this Motion. (Docket entry No. 8).
On May 18, 2004, the proceedings were held before this Magistrate Judge. Respondent and Petitioner were represented by their respective counsel. Respondent and the child were present and were assisted by an official court interpreter. The parties entered into several stipulations, and the Court issued an immediate order of provisional conditions prohibiting the removal of the child from this Court's jurisdiction until further Order of the Court. (Docket entry No. 9).
Petitioner has not traveled from Argentina to Puerto Rico due to economic constraints.
See Minutes of the Proceedings for details of the provisional order.
FACTUAL BACKGROUND
Petitioner, who presently resides in Santa Fe, Argentina is the mother of the child and at all times relevant to this case has had his legal custody. Respondent is the father of the child. Petitioner and Respondent were married on December 5, 1985 and are the parents of the child who was born on October 11, 1990. On June 27, 1997, Petitioner and Respondent filed a joint petition of divorce by mutual consent in which the parties agreed the mother (Petitioner) would have custody of the child and his sister, providing for a comprehensive schedule of visits by the children with their father (Respondent). After the divorce, the children frequently visited Respondent, who resided in Bariloche, Argentina. On or around the middle of 2002, Respondent moved to Puerto Rico and established his domicile and residence here. On December 15, 2002, both the child and his sister traveled from Argentina to Puerto Rico to visit Respondent.In an application for return based on the Hague Convention on International Child Abduction, Petitioner indicated the child and his sister were to return in March 2003, before starting school. At that time, Respondent communicated to Petitioner he was not going to authorize the return of the children to Argentina. After several conversations, the child's sister returned to Argentina and the child remained in Puerto Rico with Respondent.
Respondent has requested the permanent residency of the child and this request is pending.
On June 26, 2003, the Argentine Ministry of Foreign Relations for International Commerce, which is the Argentine Central Authority for the Hague Convention of the Civil Aspects of International Child Abduction, sent a letter to the National Center for Missing Exploited Children in Alexandria, Virginia requesting its assistance and attaching a copy of the application for return regarding the child and explaining the child was illegally retained in Puerto Rico by Respondent.
LEGAL ANALYSIS
The Hague Convention
The Hague Convention on the Civil Aspects of International Child Abduction ("Hague Convention") is a multilateral international treaty on parental kidnaping to which the United States, Argentina, and Turkey, among others are signatories.
The goal of the Convention is 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." See Hague Convention, Oct. 25, 1980, preamble, T.I.A.S. no. 11670, 19 I.L.M. 1501, 1501. See Hague Convention, Preamble. The Convention reflects "a universal concern about the harm done to children by parental kidnaping and a strong desire among the Contracting States to implement an effective deterrent to such behavior."Feder v. Evans-Feder, 63 F.3d 217, 138 221 (3rd Cir. 1995). The Convention is "designed to restore the `factual' status quo which is unilaterally altered when a parent abducts a child."Id.
The Hague Convention applies where a child has been removed or retained away from his or her habitual residence in breach of the custody rights that the petitioner (parent) was exercising at the time of the wrongful removal or wrongful retention. Hague Convention, Art. 3. The objects of the Convention are: (1) "to secure the prompt return of children wrongfully removed to or retained in any Contracting State," and (2) "to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in other Contracting States." Hague Convention, Art. 1.
The United States has implemented the Hague Convention by enactment of the International Child Abduction Remedies Act ("ICARA"), 42 U.S.C. § 11601 et seq. ICARA vests state and district courts with concurrent jurisdiction over claims arising under the Convention and empowers those courts to order the return of wrongfully removed or retained children. See 42 U.S.C. § 11603. An ICARA hearing is not a custody hearing. See Blondin v. Dubois, 189 F.3d 240, 245 (2nd Cir. 1999) (under ICARA, a district court has "the authority to determine the merits of an abduction claim, but not the merits of the underlying custody claim"); Hague Convention, Art. 19 ("A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue."). An ICARA proceeding merely determines which nation should hear the underlying custody claim. See Blondin, 189 F.3d at 245; Cerit v. Cerit, 188 F. Supp.2d 1239, 1243 (D. Hawaii 2002).
A petition under the Hague Convention requires the Court to determine whether the child has been "wrongfully removed or retained" within the meaning of the Convention. Petitioner has the burden of proving, by a preponderance of the evidence, wrongful removal or retention. 42 U.S.C. § 11603(e)(1)(A).
Pursuant to Article 3 of the Hague Convention, removal is wrongful under the Convention if:
a) it is in breach of the 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 the removal or retention those rights were actually exercised . . . or would have been so exercised but for the removal or the retention.
In applying this provision, a court must ask four questions.
(1) When did the removal or retention at issue take place?
(2) Where was the child habitually resident immediately prior to the removal or retention?
(3) Did the removal or retention breach the petitioner's rights of custody under the law of the habitual residence?
(4) Was the petitioner exercising those rights at the time of the removal or retention? Mozes v. Mozes, 239 F.3d 1067, 1070 (9th Cir. 2001).
Therefore, a petitioner establishes the elements of wrongful removal or retention by demonstrating by a preponderance of the evidence that:
(1) the habitual residence of the child immediately before the date of the allegedly wrongful removal or retention was in the country to which return is sought;
(2) the removal or retention breached the petitioner's custody rights under the law of the child's habitual residence;
(3) the petitioner was actually exercising or would have been exercising custody rights of the child at the time of his or her removal or retention; and
(4) the child has not attained the age of 16 years.
See Lops v. Lops, 140 F.3d 927, 936 (11th Cir. 1998);Pesin v. Osorio-Rodríguez, 77 F. Supp.2d 1277, 1284 (S.D.Fla. 1999); Méndez-Lynch v. Méndez-Lynch, 220 F. Supp.2d 1347, 1357 (M.D. Florida 2002).
Once the petitioner meets the burden of proving wrongful removal or retention, the child must be returned unless the respondent can establish by preponderance of the evidence one or more of four defenses:
(1) the person having care of the child was not actually exercising the custody rights at the time of removal or retention, Hague Convention, Article 13a; or
(2) the person having care of the child had consented to or subsequently acquiesced in the removal or retention of the child, Hague Convention, Article 13a; or
(3) "the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views." Hague Convention, Article 13, unnumbered paragraph; or
(4) the proceedings were commenced more than one year after the date of the wrongful removal or retention and "the child is now settled in its new environment." Hague Convention, Article 12.
Additionally, a court is not bound to order the return of a child if respondent demonstrates by clear and convincing evidence that:
(5) there is a grave risk that the child's return would "expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." Hague Convention, Article 13b; or
(6) return of the child would not be permitted by fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms. Hague Convention, Article 20.
Even if an exception is established, the Court has discretion to order the return of a child if return would further the aims of the Hague Convention. Miller v. Miller, 240 F.3d 392, 402 (4th Cir. 2001); England v. England, 234 F.3d 268, 270-71 (5th Cir. 2000). Furthermore, each exception is to be applied narrowly. Rydder v. Rydder, 49 F.3d 369, 372 (8th Cir. 1995); 42 U.S.C. § 1160(a)(4).
Wrongful Retention
We now proceed to apply the above principles to this case. The two threshold issues of any Hague Convention case are not in dispute. The child is under 16 years of age and Argentina and the United States became signatory to the Hague Convention prior to the retention of the child in this case.
It is also undisputed, and both parties so stipulated, that the habitual residence of the child immediately before the date of the alleged retention was in Argentina, the country to which the return is sought. Thus, the law of Argentina governs the decision as to whether custody rights existed at the time of removal or retention. Méndez-Lynch, 220 F. Supp.2d 1357. It is undisputed, and stipulated by both parties, that Petitioner had "rights of custody" over the child pursuant to Argentine law at the time of retention. In addition, it is also undisputed, as stipulated by both parties, that Petitioner was actually exercising custody rights of the child at the time of retention.
In view of the undisputed evidence stipulated by the parties, we conclude the retention of the child was wrongful under the meaning of the Hague Convention. Respondent's Affirmative Defenses
However, Respondent claims as an affirmative defense that the child will suffer psychological harm if returned to Argentina. In addition, Respondent asserts as other affirmative defenses that the child objects to being returned to Argentina and that the proceedings were commenced more than one year after the date of the wrongful retention and the child is now settled in his new environment.
This defense has to be proven by clear and convincing evidence.
Respondent has to establish these two defenses by preponderance of the evidence.
A. The Child Objects to Being Returned to Argentina Defense.
This Magistrate Judge met privately with the child in chambers as part of the proceedings held on May 18, 2004, for an informal interview to make an assessment of the child's psychological state and his well being both in Argentina and in Puerto Rico. During this interview, the child expressed he wishes to stay in Puerto Rico with Respondent. This Magistrate Judge discussed with the child a letter he wrote to his mother on May 7, 2004, in which he explained to Petitioner he wished to stay in Puerto Rico. During the interview, the child was well spoken and assertive in his answers when he was asked whether he wanted to return to Argentina and he answered he wanted to stay with Respondent in Puerto Rico.
It is worth mentioning the child indicated he wrote this letter per Respondent's request. The letter was submitted and is an exhibit of the hearing.
The Court finds that at the age of 13, the child has attained an age and degree of maturity at which it is appropriate to take account of his views. Nonetheless, the Court concludes that, under the circumstances of this case, the child's opinion on return to Argentina is not conclusive. The child has been since December 2002 in the virtual exclusive custody of Respondent in Puerto Rico. The child has not seen Petitioner nor his sister in over 16 months even though they occasionally communicate by telephone, e-mail and letters. Thus, we understand the child has been heavily influenced by Respondent's wish for the child to remain in Puerto Rico. Furthermore, we take cautiously the child's letter of May 2004 to his mother because the child indicated he wrote the letter per Respondent's request.
A court is not bound to order the return of a child if respondent demonstrates by preponderance of the evidence "the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views." Hague Convention Article 13, 42 U.S.C. § 11603(e)(2)(A). This provides a separate and independent basis for a court to refuse to return a child to a country of habitual residency, although, like the other exceptions it is narrowly applied. Mendez-Lynch, 220 F. Supp.2d at 1360.
B. The Child Will Suffer Psychological Harm if Returned to Argentina Defense.
A court is not bound to order the return of a child if respondent demonstrates by clear and convincing evidence that there is a grave risk that the child's return would "expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." Hague Convention, Article 13 b; 42 U.S.C. § 11603(e)(2)(A). This exception therefore requires evaluation of the grave risk of physical harm to the children, psychological harm to the children, or if return would otherwise place the children in an intolerable situation. Like the other exceptions, this is a narrow exception. England, 234 F.3d at 270-71.
The assessment focuses upon the children. "The exception for grave harm to the child is not license for a court in the abducted-to country to speculate on where the child would be happiest." Friedrich v. Friedrich, 78 F.3d 1060, 1068 (6th Cir. 1996). "A removing parent must not be allowed to abduct a child and then — when brought to court — complain that the child has grown used to the surroundings to which they were abducted." Id.
This exception requires the alleged physical or psychological hare to be "a great deal more than minimal". Whallon v. Lynn, 230 F.3d 450, 459 (1st Cir. 2000) (quoting Walsh v. Walsh, 221 F.3d 204, 218 (1st Cir. 2000). Only severe potential harm to the child will trigger this Article 13b exception.Nuñez-Escudero v. Tice-Menley, 58 F.3d 374, 377 (8th Cir. 1995) (quoting the Supreme Court of Canada, Thomson v. Thomson, 119 D.L.R.4th 253, 286 (Can. 1994)). The harm must be greater than normally to be expected on taking a child away from one parent and passing the child to another parent. Whallon, 230 F.3d at 459. The harm of separating a child from the primary caretaker does not satisfy the Article 13b exception. Rydder v. Rydder, 49 F.3d 369, 372 (8th Cir. 1995); Nuñez-Escudero, 58 F.3d at 376. Adjustment problems that would attend the relocation of most children is not sufficient. Friedrich, 78 F.3d at 1067.
The "intolerable situation" portion of the exception requires some evaluation of the people and circumstances awaiting that child in the country of his habitual residence. The Court may consider the environment in which the child will reside upon returning to his country. Nunez-Escudero, 58 F.3d at 377.
The United States Department of State has stated that an "intolerable situation" under Article 13b was not intended to encompass situations such as return to a home where money is in short supply, or where educational or other opportunities are more limited than in the new country. It gave as an example of "intolerable situation" where the custodial parent sexually abuses a child. 51 Fed. Reg. at 10510; Méndez-Lynch, 220 F. Supp.2d at 1364.
In other words, at one end of the spectrum are those situations where repatriation might cause inconvenience or hardship, eliminate certain educational or economic opportunities, or not comport with the child's preferences; at the other end of the spectrum are those situations in which the child faces a real risk of being hurt, physically or psychologically, as a result of repatriation. The former do not constitute a grave risk of harm under Article 13(b); the latter do. Blondin v. Dubois, 238 F.3d 153, 162 (2nd Cir. 2001).
At least one court has upheld consideration of whether the children were well settled in their new environment and the children's views of repatriation as part of the grave risk evaluation. Blondin, 238 F.3d at 157-60.
In Friedrich, the Sixth Circuit indicated that the grave risk exception applies only (1) when returning the child meant sending him to a zone of war, famine or disease, or (2) in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence for whatever reasons may be incapable or unwilling to give the child adequate protection. Friedrich, 78 F.3d at 1069.
The defense of psychological harm was not raised by Respondent in his Answer to the Complaint nor in any of the affirmative defenses contained therein. This defense was raised for the first time during the meeting in chambers with both counsel. Respondent's counsel made a general argument the child was going to suffer psychological harm but at no time categorize the harm as "grave" or that the child will be in an "intolerable situation" in Argentina, as explained by the jurisprudence above cited and required under the Hague Convention. Moreover, no evidence was presented or even mentioned by Respondent's counsel in chambers or in open court to support the alleged claim of psychological harm the child will be exposed if returned to Argentina with his mother. For example, no evidence was presented Petitioner is not fit to take care of the child; the child will be abused or neglected in any way; the child will be in danger or will suffer famine or disease; the mother does not have the economic means to support the child; the living conditions with the mother in Argentina will deprive the child of going to school and performing extracurricular activities.
"Grave" is defined by the dictionary as "meriting serious consideration"; "likely to produce great harm or danger"; "significantly serious." Merrian Webster's Dictionary, Tenth Edition 1993.
Both parties were given the opportunity to present evidence and witnesses in open court during the hearing and both parties declined.
On the contrary, Respondent's own actions show his claim of psychological harm is without merit. It is undisputed Respondent returned the child's sister to Argentina in March 2003, after she traveled to Puerto Rico, and kept the child from returning. Thus, we must conclude the return of the girl to Argentina did not expose her to "grave psychological or physical harm" or to an "intolerable situation." Otherwise, Respondent would not have returned her to Argentina.
Respondent's counsel requested the court to order a psychological evaluation of the child. At this time, this Magistrate Judge suggested to meet in private with the child to make an informal assessment of his well-being and whether there was a need for the psychological evaluation. Both parties agreed and the meeting with the child took place privately in chambers as explained above. During the meeting the child was alert, eloquent and answered all the questions we posed in an intelligent fashion. The child was relaxed and was not anxious in any way. The child explained that his life in Puerto Rico is the same he had in Argentina. The child did not mention anything that he is capable of doing or having in Puerto Rico that he will be deprived of if returned to Argentina. Besides the fact he lives in Puerto Rico along with his father's girlfriend and her three children, the child did not mention any other significant difference between his living conditions in Puerto Rico and those provided by his mother in Argentina. The child expressed he goes to school, has friends and plays sports as he also did in Argentina. Moreover, based on the demeanor of the child and the answers provided to our questions, we perceived nothing whatsoever that will prevent him from adapting to his normal life in Argentina with his family where he has lived most of his life. More importantly, there was no indication during the interview the child will be exposed to "grave psychological or physical harm" or he will be exposed to an "intolerable situation", as defined above, if he is returned to Argentina with his mother.
Pursuant to the evaluation performed by this Magistrate Judge and the time constraints in this case because of its serious nature, this Magistrate Judge denied Respondent's request for a psychological evaluation of the child.
In view of the foregoing, Respondent has not proven by clear and convincing evidence there is a "grave" risk the child's return would "expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." Hague Convention, Art. 13b; 42 U.S.C. § 11603(e)(2)(A).
C. The Proceedings Were Commenced More than One Year after the Date of the Wrongful Retention Defense.
Respondent also argues as another defense that the proceedings were commenced more than one year after the date of the wrongful removal or retention and the child is now settled in its new environment. As an exhibit to the Complaint, Petitioner filed a copy of the Application for Return based on the Hague Convention on International Child Abduction filed with the Argentine Ministry of Foreign Relations and International Commerce in which Petitioner requested the return of the child. In this document, Petitioner indicates the child and his sister were to return to Argentina on March 2003, before starting school. Petitioner states that at that time, Respondent communicated to her he was not going to authorize the return of the children. Therefore, Petitioner's own documents show that at least since March 2003, Petitioner was aware Respondent was going to retain both children. The Complaint in this case was filed on April 1, 2004. Hence, the proceedings were commenced more than one year after the date of the wrongful retention.
Under ICARA the "commencement of proceedings" begins with the filing of a judicial petition. Mendez-Lynch, 220 F. Supp.2d 1361;Wojcik v. Wojcik, 959 F. Supp. 413, 418-19 (E.D. Mich, 1997).
D. The Child Is Now Settled in its New Environment Defense.
Even if commencement begins more than one year thereafter, the child "shall" be returned unless it is demonstrated that "the child is now settled in its new environment." Hague Convention, Article 12. Thus, we need now consider whether the child is now "well-settled" in its new environment.
Courts considering whether a child is well-settled can take into account numerous factors which can include: the circumstances surrounding the children's living environment; the stability of the child's residence in his/her new environment; social ties with family and friends; and attendance at school and other social institutions such as religious institutions.Méndez-Lynch, 220 F. Supp.2d at 1363; Zuker v. Andrews, 2 F. Supp.2d 134, 141 (D. Mass. 1998); Bocquet v. Ouzid, 225 F. Supp.2d 1337, 1349 (S.D. Florida 2002). Other courts have found that substantial meaningful connections in the country from which the child was removed should be considered. David S. v. Zamira S., 151 Misc.2d 630, 574 N.Y.S.2d 429, 432 (N.Y.Fam. 1991). One court has considered respondent's lack of stability in her employment history as a factor in determining that children were not settled. Koc v. Koc, 181 F. Supp.2d 136, 153 (E.D.N.Y. 2001).
During the interview held with the child, he expressed he lives in Puerto Rico with Respondent, his girlfriend and her three children from a prior relationship. The child explained Respondent is the manager of a pizzeria in San Juan and Respondent's girlfriend is a waitress in the pizzeria. They reside in a house in San Juan and he is in seventh grade at a private school in San Juan where he has good grades. The child expressed he likes living in Puerto Rico, he has friends, goes to the movies and plays sports. The child indicated he misses his mother (Petitioner) and his sister. When asked questions about his life with his mother back in Argentina, the child said his life there was the same as here, i.e. he went to school, had friends, went to the movies and played sports.
Pursuant to the information provided by the child during the interview, it is clear the child goes to school in Puerto Rico and has good grades, has friends, goes to the movies and plays sports. These are things the child also did in Argentina. Nonetheless, there are other circumstances surrounding the child as to living environment which are not the same in Puerto Rico and Argentina. First, we cannot obviate the fact that the child has lived in Puerto Rico 16 months and the rest of his life the child has lived with his mother and sister in Argentina. From this fact alone, we must conclude that the social ties with family and friends the child has in his native country of Argentina and that he developed for the twelve years he lived there, before living in Puerto Rico, must be substantially stronger than any ties he might have acquired in Puerto Rico over 16 months. More so when there is no evidence the child has any family member in Puerto Rico besides his father. Second, we need to consider the fact the child lives in Puerto Rico with Respondent and with four other persons who are unrelated to him, namely, Respondent's girlfriend and her three children. As a matter of fact, the child indicated Respondent is not legally married to his girlfriend but it is unclear how long Respondent has had a relationship with his girlfriend or if they are going to get married in the future. Thus, the stability in the child's household in Puerto Rico is not the same as the stability in his household in Argentina where we would be living with his mother and sister and close to other family members. Third, we consider the fact Respondent's employment history is not one of great stability. The undisputed evidence on the record shows Respondent came to Puerto Rico because he could not get a job in Argentina. Fourth, we consider the fact that the place of residence of the child in Puerto Rico was unclear until the hearing held before this Magistrate Judge. The address which was provided by Respondent's counsel was the address of Respondent's place of work and not the physical address where the child lives and Respondent's counsel was not aware of this. The child provided the Court with the physical address where he currently resides.
In fact, the address for the child is included in the exhibits submitted with the complaint is another address.
Balancing the factors above stated, we have to conclude that the child is not "well-settled" in Puerto Rico within the meaning of the Hague Convention.
"Any concern about uprooting the child must be weighed against the legitimate concern that allowing Respondent's behavior to go unchecked could provide incentive to parents to take the law into their own hands, crossing international borders in search of more sympathetic custody courts. The Hague Convention, implemented by ICARA, expressly seeks to prevent such actions." Belay v. Getachew, 272 F. Supp.2d 553, 564 (D. Maryland 2003).
Therefore, even though the proceedings commenced after the expiration of the period of one year, since it has been demonstrated the child is not "well-settled" in Puerto Rico, the Court shall order the return of the child to Argentina. Hague Convention, Art. 3.
Equitable Tolling of the One Year Period
Our inquiry could end here. Nonetheless, in the alternative and for the sake of the argument, even if it was determined the child is "well-settled" in Puerto Rico, the ruling of this Court would be the same as explained below.
Presuming the two factors of "well settled" and commencement of proceedings after one year of the wrongful retention are established, we proceed to consider whether any equitable justifications exist for tolling the one-year time period, treating the Article 12 exception as a statute of limitation, thus causing the child to be returned in spite of the elements of the Article 12 having been established.
As previously indicated, the Petition was not filed within one year of Respondent's wrongful retention of the child. However, the Court finds as a matter of law that equitable tolling applies to this time period. It would be difficult to "conceive of a time period arising by a federal statute that is so woodenly applied that it is not subject to some tolling, interruption, or suspension, if it is shown or demonstrated clearly enough that the action of an alleged wrongdoer concealed the existence of the very act which initiates the running of the important time period." Lops, 140 F.3d at 946; Bocquet, 225 F. Supp.2d 1337 at 1348.
The determination whether equitable estoppel or tolling should apply to toll the one-year period must be made with reference to two competing interests found at the heart of the statute. On the one hand, it defeats the purpose of the Convention-which seeks to prevent the harmful effects of wrongful removal on children-to engender what would amount to a "second removal", uprooting the child from the place to which he/she has now developed ties. See In re Robinson, 983 F. Supp. 1339, 1346 D.Colo. 1997) ("Nevertheless, the Convention has essentially decided that once settled in the new environment, to again uproot the child would be harmful."). On the other hand, courts must be wary of rewarding an abductor for concealing the whereabouts of a child long enough for the child to become "well-settled"; to reward the abductor as such would be to condone the exact behavior the Convention seeks to prevent. Bocquet, 225 F. Supp.2d at 1348-49.
It should be noted at the outset that neither the Convention nor ICARA specify Article 12 should be subject to equitable tolling. Nevertheless, certain district courts, basing their holdings on policy considerations and on the belief that Congress must have intended ICARA to allow for tolling, have applied equitable tolling in Hague cases. Some of these courts have found that equitable tolling should apply to prevent a respondent from asserting the Article 12 defense.Méndez-Lynch, 220 F. Supp.2d at 1362; Bocquet, 225 F. Supp.2d at 1348. Other courtsanalyzed whether equity demanded a return of the child but determined that tolling should not apply because the petitioners were not kept in the dark as to the location of the child. Robinson, 983 F. Supp. at 1345;Wojcik, 959 F. Supp. at 420-21 (no equitable reasons to toll).
While these courts have presented strong policy arguments for why tolling should apply to Hague Petitions, at least two courts have taken issue with the notion that the one-year period of Article 12 is a statute of limitations. These courts noted that the purpose of Article 12 is not to allow a plaintiff to have a reasonable amount of time to bring his or her claim. Rather, Article 12 represents the conviction of the drafters that even if a wrongful removal has occurred, it might be worse to order the child to be uprooted again after the passage of a certain amount of time. See Toren v. Toren, 26 F. Supp.2d 240, 244 (D.Mass. 1998), vac'd on other grounds, 191 F.3d 23 (1st Cir. 1999).
Another court in Anderson v. Acree, 250 F. Supp.2d 872, 875 (S.D.Ohio 2002) ruled that it was not convinced that the one-year period referred to in Article 12 is a statute of limitations. The court explained as follows:
A petition for the return of a child is not barred if it is filed over one year from the date of removal. Rather, the drafters of the Hague Convention decided that after the passage of a year, it became a reasonable possibility that the child could be harmed by its removal from an environment into which the child has become settled, and that a court ought to be allowed to consider this factor in making the decision whether to order the child's return.
This ruling was followed in Belay, 272 F. Supp.2d at 553. As in Belay, we agree with the reasoning of the Anderson Court to the extent it identifies the intentions of the drafters to allow courts to take into account the child's circumstances (after the passage of time) when deciding whether to order a return. The Court believes, however, courts faced with different situations, must have the flexibility to take into account those actions in determining the outcome of the case under Article 12. "While Article 12 may not be a statute of limitations per se, it should be subject to some form of equitable tolling for the exact policy reasons enunciated in the cases where courts have "tolled" the Convention." Anderson, 250 F. Supp.2d at 875; Belay, 272 F. Supp at 562.
A rule that stated that a court considering a Hague petition cannot return a child if the "abducting" parent has established the elements of Article 12 would create a perverse incentive for abducting parents. Such a rule would inevitably result in scenarios where abducting parents, hoping to avoid the mandates of the Convention, attempt to conceal the child from the non-abducting parent for more than one year. Id. Then, if hailed into court on a Hague petition (presuming the non-abducting parent could ever locate the child), the abducting parent would have achieved what amounts to an immunity from the Convention. The purposes of the Convention would be directly controverted were parents allowed to circumvent the Convention's strictures by fleeing from the law. We cannot condone such a result.
Applying equitable principles to this case, we now consider whether the one year period in this case for filing the petition under the Hague Convention was tolled. We find it was.
The record shows Petitioner was informed by Respondent during the month of March 2003 he was not going to return the child. Sometime after March 2003 and before June 26, 2003, Petitioner contacted the Argentine Ministry of Foreign Relations for International Commerce, which is the Argentine Central Authority for the Hague Convention of the Civil Aspects of International Child Abduction, and submitted an application for return based on the Hague Convention on International Child Abduction. Petitioner indicated the child and his sister were to return in March 2003, before starting school but at that time, Respondent communicated to Petitioner he was not going to authorize the return of the children to Argentina. Petitioner informed that, after several conversations, the child's sister returned to Argentina but the child remained in Puerto Rico with Respondent.
On June 26, 2003, the Argentine Ministry of Foreign Relations for International Commerce, which is the Argentine Central Authority for the Hague Convention of the Civil Aspects of International Child Abduction, sent a letter to the National Center for Missing Exploited Children in Alexandria, Virginia requesting its assistance and attaching a copy of the application for return regarding the child and explaining the child was illegally retained in Puerto Rico by Respondent.
This letter is part of the exhibits submitted by Petitioner with the Complaint and it has not been challenged by Respondent.
Thus, we find Petitioner took prompt action in Argentina within a few months of the retention of the child in Puerto Rico in March 2003 to advise the legal authorities of the illegal retention of the child. In turn, the Argentine government took immediate action in June 26, 2003 and advised the National Center for Missing Exploited Children in Virginia of the situation of the child. There is no evidence on the record as to any action taken by the National Center for Missing Exploited Children in relation to the child. Assuming no action was taken, Petitioner cannot be faulted for the delay or inaction of others. Thus, Petitioner acted expeditiously to enforce her rights under the Hague Convention. "This is not the case where a parent has `slept' on his rights, allowing time to pass without actively seeking the child." Belay, 272 F. Supp.2d. at 564.
Accordingly, and pursuant to the purpose of the Hague Convention, the Court finds that all of the equities demand that the one year period in this case be tolled from June 26, 2003 and the one year period start running anew from that day. Thus, the Complaint was filed with this court within the one year of the retention of the child in Puerto Rico.
Attorneys' Fees.
Petitioner requests an order to Respondent to pay reasonable legal costs and fees. We are mindful that ICARA requires any court ordering the return of a child under the Hague Convention to award fees and costs to the successful party unless such order would be "clearly inappropriate." 42 U.S.C. § 11607(b)(3).Rydder, 49 F.3d at 373-74.
Thus, it is recommended that Respondent pay Petitioner's legal fees and costs.
CONCLUSION
This Magistrate Judge finds by at least a preponderance of evidence that Petitioner has met his burden under the Hague Convention and ICARA of establishing that: 1) the child habitually resided in Argentina prior to his retention in Puerto Rico on March 2003; 2) Respondent breached Petitioner's custodial rights under Argentine law by retaining the child in Puerto Rico and preventing him to return to Argentina; and 3) Petitioner possessed and was exercising custodial rights at the time of the child's retention in Puerto Rico. Additionally, Respondent has not satisfactorily established any affirmative defense. As the Eleventh Circuit has stated, "The Hague Convention is intended to restore the pre-abduction status quo . . ." Lops, 140 F.3d at 936. Therefore, the child must be returned to Argentina.
Accordingly, this Magistrate Judge RECOMMENDS the conditions set forth below:
1. Petitioner's Petition for Return of Child (Docket entry No. 1) be GRANTED.
2. Respondent Walter Marcos Nazor Lurashi, shall be ordered to surrender custody of Alan Nazor to Petitioner Sandra Silva Gonzélez Locicero or to any person designated by Petitioner to travel with the minor within five (5) calendar days of the Order of this Court for return to Argentina with Petitioner. Counsel for Petitioner shall coordinate arrangements with counsel for Respondent.
3. Alan Nazor shall be returned to Argentina at Petitioner's expense. Respondent may accompany Petitioner and the child to Argentina if he so chooses.
4. The issue of permanent custody of the child is to be determined by the court in Argentina.
5. The Clerk of the Court shall notify counsel for the parties of this Order immediately.
All travel documents of the child including his Argentine passport were surrendered by Respondent on May 18, 2004 and are kept secured at the Clerk's Office's vault.
IT IS SO RECOMMENDED.
The parties have five (5) days to simultaneously file any objections to this report and recommendation. Failure to file same within the specified time waives the right to appeal this order. Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1st Cir. 1994); United States v. Valencia, 792 F.2d 4 (1st Cir. 1986). See Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 991 (1st Cir. 1988) ("Systemic efficiencies would be frustrated and the magistrate's role reduced to that a mere dress rehearser if a party were allowed to feint and weave at the initial hearing, and save its knockout punch for the second round").
IT IS SO ORDERED.