DaríN v. Olivero-Huffman

• Decision Date: 19 March 2014
• Docket Number: No. 12–2256.,12–2256.
• Parties: Lisandro Jonathan DARÍN, Petitioner, Appellant, v. Lua Cecilia OLIVERO–HUFFMAN, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

746 F.3d 1

Lisandro Jonathan DARÍN, Petitioner, Appellant,

v.Lua Cecilia OLIVERO–HUFFMAN, Respondent, Appellee.

No. 12–2256.

United States Court of Appeals, First Circuit.

March 19, 2014.

Rubén T. Nigaglioni, with whom Nigaglioni Law Offices P.S.C. was on brief, for appellant.

Charles S. Hey–Maestre, with whom Maricarmen Carrillo–Justiniano and Servicios Legales de Puerto, Inc. were on brief, for appellee.

Before HOWARD, RIPPLE,^* and THOMPSON, Circuit Judges.

THOMPSON, Circuit Judge.

This is an appeal from the denial of a petition for the return of a child to Argentina 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, reprinted in 51 Fed.Reg. 10494–01 (Mar. 26, 1986) (“Convention”), and its implementing statute, the International Child Abduction Remedies Act (“ICARA”), 42 U.S.C. §§ 11601–11611 (2000). Lisandro Jonathan Darín (“Darín”) initiated these proceedings against Lua Cecilia Olivero–Huffman (“Olivero”), seeking the return of their son (“LAD”) to Argentina from the United States. The district court denied the petition, and this appeal followed. We reverse and remand.

I. FACTUAL BACKGROUND

Darín is a citizen of Argentina. Olivero is a United States citizen from Puerto Rico. The parties first met at some point between 2004 and 2005 at a friend's gathering in Argentina. Olivero had traveled to Argentina in 2004 to visit a friend, and decided to stay for a full year to study dance therapy. She ultimately enrolled in a three year program. In 2005, Olivero returned to the United States, where she worked for six months in order to afford her dance therapy studies. She then went back to Argentina. In 2006, Olivero and her sister bought an apartment in Buenos Aires, Argentina.

Although the parties had met earlier, it was not until 2007 that they entered into a romantic relationship. Quickly thereafter, Olivero became pregnant, and by then the parties were living together in Olivero's apartment. During the pregnancy, Darín and Olivero traveled together to the United States, returning to Argentina prior to the arrival of their son. LAD was born in Buenos Aires on April 20, 2008, and is a citizen of both the United States and Argentina. Following the birth of their son, the parties moved into a Buenos Aires apartment Darín had inherited from his father.

On December 11, 2008, Darín and Olivero took LAD to the United States for approximately two months, returning to Argentina on February 9, 2009. All three traveled again to the United States on March 24, 2009, where they remained until August 7, 2009. As before, they returned to Argentina. On January 19, 2010, Olivero and LAD traveled to the United States—without Darín—under a power of attorney (“POA”) signed by the parties in Argentina, pursuant to which LAD was authorized to travel to any country in the world accompanied by either parent. While in the United States, Olivero informed Darín she and LAD were not returning to Argentina in March as the parties had previously agreed, that she did not want to return, and that she did not know when they would return. Despite her expressed reservations, mother and son ultimately went back to Argentina in April 2010, just before LAD's second birthday.

The couple separated upon Olivero's return, but continued to live in the same Buenos Aires apartment for two and a half months. At this point, Darín revoked the POA, seemingly so that Olivero could no longer take their son out of Argentina without him. According to his testimony, he did so because he did not trust her anymore. Olivero and LAD eventually moved back into her apartment in Buenos Aires, and LAD began attending a nearby kindergarten. LAD split his time between his mother's apartment and his father's.

Darín and Olivero's separation lasted approximately seven months. During this period, and unbeknownst to Darín, Olivero consulted “a couple of lawyers” in Argentina to explore methods of taking the child to the United States without the child's father's consent. One lawyer counseled her on how to ask for custody in Argentina, while others advised her that she “had a better chance of returning to [the United States]” if she asked for custody in Puerto Rico. After pondering whether she should seek custody of LAD in the United States, Olivero decided against it because it “wasn't something [she] was able to do.”

On November 9, 2010, Olivero made a quick trip to the United States by herself—presumably because Darín had revoked the POA that allowed either parent to take LAD out of the country—leaving LAD in Darín's care. Soon after her return, Olivero and Darín reconciled and, by January of 2011, were living together once again.¹ The reconciliation, however, was short-lived as it was quickly followed by the decision that ultimately led to their protracted legal quarrel, which culminated in this appeal.

On January 31, 2011, the family traveled to the United States. Their first stop was Orlando, Florida, where they spent a total of four days. The family then moved on to Puerto Rico. At the outset of the trip, the plan was to spend some time in Puerto Rico with Olivero's family and then fly back to Argentina on March 2, 2011. However, during their stay in Puerto Rico, the plan began to change and the date of return was pushed back due to Olivero's involvement in a car accident and her apparently new-found interest in pursuing a business venture with her sister. Around mid-March 2011, Olivero announced to Darín that neither she nor LAD would be returning to Argentina. Darín remained on the island as long as he could, but his tourist visa was set to expire in July 2011.

On July 7, 2011—just two days before Darín's departure—Darín and Olivero executed an affidavit regarding the care and supervision of their son during Darín's absence (the “Affidavit”). Olivero drafted the Affidavit herself. The Affidavit's terms authorized her to take any steps necessary to provide for the education, health care, and overall well-being of the child. A provision authorizing the child to travel with either parent was there as well. At Darín's insistence, language was included stating he was leaving the United States “against his will” and was not abandoning his child. He eventually left the country on July 9, 2011.² Thereafter, although separated geographically, Darín maintained continuous and frequent communication with his son.

On November 18, 2011, Olivero filed for legal custody of LAD in Puerto Rico state court. According to the custody petition, Olivero filed so that she could “send [LAD] to visit [Darín] at Christmas,” since they had not been able to reach an agreement and she feared the retention of the child.³ On December 19, 2011, Darín filed an application under the Convention with the Argentina Central Authority requesting the return of his son to Argentina. On February 22, 2012, Darín filed the instant action with the federal district court in Puerto Rico, alleging Olivero's actions amounted to a “wrongful retention” of his son.

II. PROCEEDINGS BELOW

According to Darín's petition, Olivero wrongfully removed or retained LAD in the United States in violation of his joint custody rights. Olivero countered that there was no wrongful removal or retention because Darín had “expressly acquiesced and consented to” the child residing with her in the United States for an indefinite period of time, and that he did so by executing the Affidavit.

There were two jointly stipulated issues before the district court: (1) “whether or not an unlawful retention or removal of the child occurred in this case, notwithstanding [Darín's] express consent, given under affidavit, to the child staying in Puerto Rico under [Olivero's] care and supervision, for an indefinite period of time;” and (2) “whether Puerto Rico ha[d] become the child's habitual residence and hence the Puerto Rico Courts ha[d] jurisdiction to determine permanently the best interests of the child and to rule on any controversies between the parties regarding parental custody and visitation rights.”

After holding a three-day evidentiary hearing where both parties had an opportunity to testify,⁴ the district court concluded that Darín had not met his burden of establishing a wrongful removal or retention. Indicating that the alleged removal or retention had occurred in July 2011, on the date which Darín left Puerto Rico,⁵ the court found that as of that time “a new habitual residence in [the United States] was acquired based on the parents' shared intention in signing the affidavit.” In other words, Darín had, according to the court, “acquiesced/consented” ⁶ to LAD remaining in Puerto Rico. The court concluded that because LAD “was a habitual resident of Puerto Rico at the time of the claimed removal or retention,” the retention or removal was not wrongful. The court held that the courts of Puerto Rico, as opposed to Argentina, had jurisdiction to determine any and all custody disputes. Consequently, it denied Darín's petition and dismissed his claims, with prejudice. Darín timely appealed.

III. THE CONVENTION

Before tackling the merits of the matter at hand, we provide some context. The Convention is a multilateral agreement between ninety-one nations ⁷ that was adopted to counter “the problem of international child abductions during domestic disputes.” Abbott v. Abbott, 560 U.S. 1, 8, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010). Its objective is “to secure the prompt return of children wrongfully removed to or retained in any Contracting State, and to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” Id. (citation omitted) (internal quotation marks omitted). And the overriding intent is “to restore the pre-removal status quo and to discourage a parent from engaging in international forum shopping.” Kufner v. Kufner, 519 F.3d 33, 38 (1st Cir.2008) (citing...