Didon v. Castillo
| Citation | 838 F.3d 313 |
| Decision Date | 26 September 2016 |
| Docket Number | 15–3579,Nos. 15–3350 &amp,s. 15–3350 &amp |
| Parties | Maurice Marie Didon, Appellant in No. 15–3579, v. Alicia Dominguez Castillo Appellant in No. 15–3350. |
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
Anthony J. Vetrano, Esq. [ARGUED], Vetrano Vetrano & Feinman, 630 Freedom Business Center Drive, Suite 215, King of Prussia, PA 19406, Counsel for Maurice Marie Didon.
Michelle Pokrifka, Esq. [ARGUED], CGA Law Firm, 135 North George Street, York, PA 17401, Counsel for Alicia Dominguez Castillo.
Before: MCKEE, Chief Judge, FISHER and GREENAWAY, JR., Circuit Judges
GREENAWAY, JR.
, Circuit Judge.
The Hague Convention on the Civil Aspects of International Child Abduction1 allows a parent2 to petition for the return of a child when that child has been removed or retained from her “habitual residence” country in violation of the parent's custody rights in that country. The petition at issue in this case concerns two children (A.D. and J.D.) retained by their mother in the United States who hail from the Caribbean island of Saint Martin. That 34–square–mile island is comprised of two legally distinct, yet highly integrated, countries—French Saint Martin (where the children went to school) and Dutch Sint Maarten (where the children had their home).3 To complicate matters further, the Hague Convention is recognized by French Saint Martin (through France),4 but is not recognized by Dutch Sint Maarten.5
The extraordinary facts of this case require us to decide an issue of first impression: may a child have two “habitual residence” countries at the same time under the Hague Convention (“concurrent habitual residence”6 )? We conclude that the text of the Convention does not permit concurrent habitual residence. We therefore look to the ordinary meaning of the term “residence” and hold that the children were habitual residents only of the country in which they “lived”—Dutch Sint Maarten. Because Dutch Sint Maarten does not recognize the Convention, the Convention does not apply to this case.
Accordingly, we will vacate the District Court's judgments and dismiss the petition. Because the District Court granted the petition as to A.D., we will also instruct the District Court to order that A.D. be returned to the United States forthwith.
The parties' dispute in this case revolves around two children—A.D. and J.D. A.D. is the biological son of Petitioner Maurice Marie Didon (“Didon”) and Respondent Alicia Dominguez Castillo (“Dominguez”), and J.D. is the biological daughter of Dominguez from a prior relationship. Dominguez moved to Dutch Sint Maarten in 2007, leaving J.D. behind in the Dominican Republic. Dominguez subsequently met Didon in 2008 and moved into his apartment in Dutch Sint Maarten in 2009. On November 3, 2010, A.D. was born, and shortly thereafter, in 2011, J.D. moved into the Dutch Sint Maarten apartment.
After J.D. moved in, Didon and Dominguez petitioned the French consulate to change J.D.'s birth certificate to list Didon as her father. That petition was granted and a new birth certificate was issued for J.D. listing Didon as her father and Dominguez as her mother. Although Didon characterizes this process as an “adoption” of J.D., “the parties never appeared before a court or otherwise formally engaged in the adoption process.” App. vol. I at 6.
The family resided at the Dutch Sint Maarten apartment for the next three years. Throughout this time period, although the family resided in Dutch Sint Maarten,8 it was “primarily oriented” to French Saint Martin “where Didon worked, and where the children attended school,[9 ]went to doctor's appointments, etc.” App. vol. I at 5. “Further, the family's administrative affairs, such as the children's insurance, were managed [in French Saint Martin].” App. vol. I at 14.
In July 2014, Didon filed a custody action in French civil court seeking full custody of A.D. and J.D. Dominguez was neither served with papers in the action nor otherwise notified of the custody proceeding. During the pendency of the action, Dominguez informed Didon that she would be taking A.D. and J.D. to New York City on August 27, 2014 to attend her sister's wedding. Dominguez advised Didon that she and the children would return on September 7, 2014, and showed Didon three round-trip airline tickets from Dutch Sint Maarten to New York City to that effect.
On September 6, 2014, Didon contacted the children's school to inform the school that J.D. would be absent due to a vacation to the United States. Didon was told by school administrators that the school was not expecting J.D. to return because Dominguez had disenrolled the children. Didon immediately contacted the police, who were able to get in contact with Dominguez by telephone on the same day. Didon claims that Dominguez promised on the call to return with the children the following day, as planned, but Dominguez claims not to have made such a promise. Dominguez did not return with the children on September 7.
In the children's absence, Didon continued to pursue his French custody action and, on March 23, 2015, the French court granted full custody of A.D. and J.D. to Didon in an ex parte order.10 At the same time, Didon had hired a private investigator to look for the children and, in the summer of 2015, the investigator located them in Hazleton, Pennsylvania.
On August 13, 2015, Didon filed the instant Hague Convention petition in the Middle District of Pennsylvania seeking the return of A.D. and J.D. to French Saint Martin.11 Didon also filed an ex parte motion seeking a temporary restraining order and an expedited hearing on the merits of his petition.
On August 14, 2015, the District Court held an ex parte telephone hearing with Didon's counsel, after which it entered an order directing the U.S. Marshals Service to serve a copy of the order and petition on Dominguez, and to confiscate the passports and other travel documents of Dominguez, A.D., and J.D. The District Court also granted Didon's request for a temporary restraining order and enjoined Dominguez from removing A.D. and J.D. from the Middle District of Pennsylvania pending a hearing on the merits of the petition. The District Court subsequently held hearings in the matter on September 2 and September 22, during which both parties presented testimony and other evidence.
On September 24, 2015, the District Court rendered judgment, granting Didon's petition as to A.D. and denying the petition as to J.D. The District Court began by fixing the date of retention as September 7, 2014—the day on which Dominguez had promised to return from the United States with the children. It then examined where the children were habitually resident prior to that date. It observed: App. vol. I at 13. It highlighted testimony about the family's extensive contacts with both countries and concluded that “the record facts, in addition to the nature of the island itself, support a finding that J.D. and A.D. were habitual residents of both [Dutch] Sint Maarten and [French] Saint Martin.” App. vol. I at 15.
In support of its conclusion, the District Court distinguished cases holding that a child may have only one habitual residence country at a time as “deciding whether the child had abandoned a prior habitual residence in favor of a new one.” App. vol. I at 15. It also invoked dicta from Mozes v. Mozes , 239 F.3d 1067 (9th Cir. 2001)
referencing “the rare situation where someone consistently splits time more or less [evenly] between two locations, so as to retain alternating habitual residences in each.” App. vol. I at 16 (internal quotation marks omitted) (quoting Mozes , 239 F.3d at 1075 n.17
).
The District Court bifurcated the remainder of its analysis. With respect to A.D., the District Court noted that the parties were in agreement that Didon had custody rights under French law because A.D. is his biological son. The District Court also noted that Didon was exercising those custody rights until Dominguez took A.D. to the United States. Because Dominguez retained A.D. from his habitual residence in violation of Didon's custody rights under French law, the District Court concluded that A.D. was “wrongfully” retained under the Hague Convention and granted the petition as to A.D.
With respect to J.D., the District Court began by observing that Didon did not have custody rights over J.D. through adoption because his purported “adoption” did not satisfy the requirements of French law to vest custody. The District Court also rejected Didon's argument that the French court's ex parte custody order vested him with custody rights over J.D. at the time of retention because “the judgment was not issued until more than six months after the alleged wrongful retention date of September 7, [2014].” App. vol. I at 19. Because Didon did not have custody rights over J.D. under French law at the time of retention, the District Court concluded that J.D. was not “wrongfully” retained under the Convention and denied the petition as to J.D.
Dominguez filed a motion for an emergency stay of the District Court's judgment with respect to A.D. pending appeal, which the District Court denied without comment on September 25, 2015. A.D. was subsequently transferred from Dominguez to Didon on that same day.12 Didon and Dominguez filed cross-appeals from the District Court's judgments with respect to J.D. and A.D., respectively.
The District Court had jurisdiction over the Hague Convention petition pursuant to 28 U.S.C. § 1331
and 22 U.S.C. § 9003(a). We have jurisdiction over the parties'...
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