Avendano v. Balza, 011121 FED1, 20-1251

Docket Nº:20-1251
Opinion Judge:KATZMANN, Judge.
Party Name:VERONICA LUZ MALAVER AVENDANO, Plaintiff, Appellant, v. LEONARDO ALFONZO BLANCO BALZA, Defendant, Appellee.
Attorney:Matthew P. Barach, with whom Barach Law Group LLC was on brief, for appellant. Shamis N. Beckley, with whom Dana M. McSherry, Annabel Rodriguez, and McDermott Will & Emery LLP were on brief, for appellees.
Judge Panel:Before Howard, Chief Judge, Barron, Circuit Judge, and Katzmann, Judge.
Case Date:January 11, 2021
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

VERONICA LUZ MALAVER AVENDANO, Plaintiff, Appellant,

v.

LEONARDO ALFONZO BLANCO BALZA, Defendant, Appellee.

No. 20-1251

United States Court of Appeals, First Circuit

January 11, 2021

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Allison D. Burroughs, U.S. District Judge]

Matthew P. Barach, with whom Barach Law Group LLC was on brief, for appellant.

Shamis N. Beckley, with whom Dana M. McSherry, Annabel Rodriguez, and McDermott Will & Emery LLP were on brief, for appellees.

Before Howard, Chief Judge, Barron, Circuit Judge, and Katzmann, [*] Judge.

KATZMANN, Judge.

This wrenching case involves the application of the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention) and its implementing statute to a father's wrongful retention of a child, herein "G*" to protect his privacy. See Oct. 25, 1980, T.I.A.S. No. 11, 670, 1343 U.N.T.S. 89, reprinted in 51 Fed. Reg. 10, 494-01 (Mar. 26, 1986); International Child Abduction Remedies Act (ICARA), 22 U.S.C. § 9001 et seq. G*'s mother, plaintiff-appellant Veronica Luz Malaver Avendano (Avendano), sought G*'s return to Venezuela, alleging that G*'s father, defendant-appellee Leonardo Alfonzo Blanco Balza (Balza), abducted G* in contravention of a Venezuelan child custody order and the Hague Convention. The district court determined that Balza admitted to unlawfully retaining G* in contravention of the Hague Convention and the implementing statute. However, after determining that Balza had established that G* is a mature child such that the court should consider G*'s stated desire to remain with his father in the United States, the district court denied Avendano's petition for return of her son to Venezuela. Avendano appeals that decision. We affirm.

I. BACKGROUND

A. Hague Convention Framework

The Hague Convention "aims to deter parents from abducting their children to a country whose courts might side with them in a custody battle." Díaz-Alarcón v. Flández-Marcel, 944 F.3d 303, 305 (1st Cir. 2019) (citing Darín v. Olivero-Huffman, 746 F.3d 1, 7 (1st Cir. 2014)). Relevant here, the United States and Venezuela are contracting parties to the Hague Convention. See Status Table, Hague Conf. on Priv. Int'l L., https://www.hcch.net/en/instruments/conventions/status-table/?cid=24 (last visited Dec. 21, 2020). In the United States, ICARA implements the Hague Convention and permits a parent to petition a federal or state court to return an abducted child under the age of sixteen to the country of the child's habitual residence. See 22 U.S.C. §§ 9001, 9003(b). The Hague Convention applies only to determine whether a child should be returned, see Hague Convention, art. 1, and does not empower the court to make any determinations regarding child custody. The court simply asks whether a custody decision should be made in the United States or in the country of the child's habitual residence. Díaz-Alarcón, 944 F.3d at 305-06; Walsh v. Walsh, 221 F.3d 204, 218 (1st Cir. 2000).

"The removal or retention of a child is to be considered wrongful where a) it is in breach of rights of custody . . . under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) . . . those rights were actually exercised . . . ." Hague Convention, art. 3. The Hague Convention favors custody decisions be made by the courts of the country of habitual residence, Mendez v. May, 778 F.3d 337, 343 (1st Cir. 2015), and the "re-establishment of the status quo disturbed by the actions of the abductor," see Elisa Pérez-Vera, Explanatory Report: 1980 Hague Conference on Private International Law, in 3 Acts and Documents of the Fourteenth Session 426, 430 (1982) (Pérez-Vera Report).1 The Convention carves out few exceptions to this strong presumption of return of the child to his or her country of habitual residence. See Hague Convention, art. 13. Furthermore, "courts construe these exceptions narrowly." Díaz-Alarcón, 944 F.3d at 306 (citing Nicolson v. Pappalardo, 605 F.3d 100, 105 (1st Cir. 2010)). The exception relevant here permits the court to decline to order the child returned "if [the court] finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of [the child's] views" (herein "the mature child exception"). Hague Convention, art. 13. The wrongful abductor must prove that the child is mature enough for the court to consider his or her stated desire by a preponderance of the evidence. 22 U.S.C. § 9003(e)(2)(B).

B. History of G*'s Presence in the United States

Unlike many cases involving child custody that implicate the Hague Convention, the parties agree on many of the facts and threshold issues. We summarize their account below.

Prior to the events leading to this litigation, G* lived with his mother in Venezuela, the country where he was born and is a citizen. Balza, a joint citizen of the United States and Venezuela with residence in Massachusetts, had joint custody over G* pursuant to a custody order by a Venezuelan court. As the district court found, Balza visited G* in Venezuela often while he resided there and provided financial support to G*. However, as the relationship between Avendano and Balza deteriorated, the parties sought a custody arrangement through the Venezuelan courts. That order provided for G* to visit Balza in the United States every August and every other December. Because of the poor relationship between Avendano and Balza, the Venezuelan courts had to intervene to enforce the order so that G* could travel to the United States in both 2016 and 2018.

While G* was visiting Balza in the United States for his second yearly visit that began in August 2018, Balza secured U.S. citizenship on behalf of G* that resulted in the forfeiture of G*'s green card. Subsequently, Avendano refused to grant the necessary permission for issuance of G*'s U.S. passport, and a Venezuelan court refused to extend the period of visitation. Therefore, Balza declined to return G* to Venezuela at the end of his court-mandated visit, claiming that he would not return G* to Venezuela without the proper documents through which he could return to the United States. G* thus continues to live with Balza and has begun attending school in Massachusetts. The district court noted that G* speaks with his mother weekly and stays in contact with his friends in Venezuela.

The political, social, and economic conditions in Venezuela provide the backdrop to G*'s childhood there. As the district court noted, "Venezuela is currently experiencing a period of economic instability and political unrest." The district court made related findings on food insecurity, lack of access to medical care, high levels of violent crime, and human rights violations in Venezuela. However, the district court also noted that Avendano's evidence indicated that the island of G*'s habitual residence in Venezuela "is largely insulated from the larger issues in Venezuela."

C. District Court's decision to allow G* to remain in the United States

After Balza's retention of G* in the United States beyond the date of the Venezuelan court order, Avendano sought G*'s return by filing suit in federal district court. The parties agreed that Avendano had lawful custody of G* pursuant to a valid Venezuelan court order, that G*'s country of habitual residence was Venezuela, and that Balza wrongfully retained G* in the United States. Having conceded that he wrongfully retained G*, Balza argued that G* should nevertheless remain in the United States because G* is a mature child who objects to being returned to Venezuela and because G* would face grave conditions if returned to Venezuela.2

After hearing evidence from Avendano, Balza, G*'s Guardian Ad Litem, three expert witnesses, and witnesses from G*'s community in Venezuela, as well as conducting an in-person interview with G*, the district court issued Findings of Fact and Conclusions of Law. The district court determined that G* was a child of sufficient age and maturity to have his wishes taken into consideration. While finding that "[t]here is no question in the mind of the [c]ourt that Avendano is a loving and committed parent," the district court then determined that G* genuinely objected to being returned to Venezuela because of ongoing political and societal tumult. Finally, the district court found that G*'s desire to remain in the United States was reached independently, free of undue influence by Balza. The district court, however, ruled that it did not need to determine whether G* would face a grave risk of harm if returned to Venezuela. In light of these conclusions, the district court "exercise[d] its discretion granted by Article 13 of the [Hague] Convention and refuse[d] Avendano's petition for return of the child to Venezuela." Avendano appeals that decision.

II. STANDARD OF REVIEW

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