Da Silva v. Vieira

Decision Date23 September 2020
Docket NumberCase No. 6:20-cv-1301-Orl-37GJK
CourtU.S. District Court — Middle District of Florida

Before the Court is Petitioners' verified petition for the return of children to Brazil. (Doc. 1 ("Petition").) Respondent opposes. (Doc. 20.) The Court conducted a multi-day evidentiary hearing from August 25, 2020 to August 28, 2020 (Docs. 29-30, 33 (collectively, "Hearing")), and the parties filed closing briefs (Docs. 40-41). On review, the Court grants the Petition and orders the children returned to Brazil.


The Hague Convention was adopted in 1980 "to address the problem of international child abductions during domestic disputes." Lozano v. Montoya Alvarez, 572 U.S. 1, 4 (2014) (cleaned up). Congress implemented the Convention's terms through the International Child Abduction Remedies Act of 1988 ("ICARA"). Gomez v. Fuenmayor, 812 F.3d 1005, 1010 (11th Cir. 2016). The Convention's "central operating feature is thereturn of the child." Lozano, 572 U.S. at 5 (cleaned up). It "empower[s] courts in the United States to determine only rights under the Convention and not the merits of any underlying child custody claims." Gomez, 812 F.3d at 1011 (quoting 22 U.S.C. § 9001(b)(4)).The Convention and ICARA are "intend[ed] to restore the pre-abduction status quo and deter parents from crossing borders in search of a more sympathetic court for custody hearings." Hanley v. Roy, 485 F.3d 641, 644 (11th Cir. 2007) (citations omitted).


Petitioners and Respondent are citizens of Brazil. (Doc. 35, pp. 32:22-23, 75:6-10, 108:24-109:1; see also Doc. 1, ¶ 15.) Petitioner Erick Biagioli Da Silva ("Father") is the father; Petitioner Marlene Aparecida Biagioli ("Grandmother") is the children's paternal grandmother; and Respondent Dayane Vieira ("Mother") is the children's mother. (See Doc. 1.)

The Father and Mother married in February 2010. (Doc. 1, ¶ 15.) They have three children together (collectively, "Children"):

• D.V.B.S. (10 years old)
• Y.V.B.S. (9 years old)
• A.V.B.S. (8 years old)

(Id.) The Children were born in and are citizens of Brazil. (Doc. 35, p. 38:8-12.) The parents divorced in 2014, first sharing custody of the Children. (Id. at 109:13-18; Doc. 1, ¶ 17.)

That year, the Mother accused the Father of domestic violence, testifying inBrazilian court that during a custody exchange the two had gotten into a verbal argument and the Father kicked the Mother in the leg.3 (Doc. 42-20; Doc. 42-28, pp. 3-4.) The Father was convicted of assault and eventually sentenced to three months' imprisonment. (Docs. 42-20, 42-28; see also Doc. 1, ¶ 16.) Then, in October 2014, the Father was arrested for stealing a vehicle used in a burglary or theft. (Doc. 1, ¶ 18; see also Doc. 35, p. 54:13-14.) He served three years in prison and was released in 2017. (Doc. 35, pp. 48:17-19, 54:16.) During his incarceration, the Mother obtained full physical custody of the Children—but the Father's parental rights were never terminated. (Id. at 44:21-23, 61:20-62:1, 116:25-117:1; see also Doc. 42-27, ¶ 2.) And the Children continued to spend a great deal of time with the Grandmother, who acted as the Father's representative while he was incarcerated. (Doc. 35, pp. 55:16-22, 67:17-19.)

The Mother and Grandmother formalized this arrangement by entering into a signed agreement ("Agreement"), adopted and ratified by a Brazilian family court in March 2017.4 (Doc. 1, ¶ 21; Doc. 35, p. 84:3-9; Doc. 42-3.) The Agreement provided the Children would spend every other weekend and some holidays with the Grandmother—and she had the right to see the Children's school schedule and to participate in school meetings and counseling sessions. (Doc. 42-3; see also Doc. 35, pp. 85:19-86:16.) She alsopaid child support. (Doc. 35, p. 91:6-11; see also Docs. 42-10, 42-11.) But the Agreement states the Children "shall remain under the exclusive guardianship of the [M]other." (Doc. 42-3, p. 1.)

In December 2017, the Mother served the Father with a petition requesting the Father's consent to travel with the Children outside of Brazil to Orlando, Florida, where she has family.5 (Doc. 1, ¶ 25; Doc. 35, p. 42:1-4; see also Doc. 42-5.) The Father refused, fearing she wouldn't return and he wouldn't see his Children again. (Doc. 35, pp. 42:7-18; see also Doc. 42-5.) The Brazilian court held a hearing on the Mother's request. (Doc. 42-6.) At the hearing, the Father argued her stated intentions (a short vacation) were pretext and she was planning to take the Children and not come back. (Doc. 35, p. 42:21-24; see also Doc. 42-5.) The Mother said it was a vacation trip, testifying her current partner had a business in Brazil, she didn't have dual citizenship, and her and the Children had tourist visas. (Doc. 42-6, p. 1; Doc. 42-16; see also Doc. 1, ¶ 30.) With no hard evidence of the Mother's intentions, and given the Mother's and the Children's connections to Brazil, the court authorized travel. (Docs. 42-6, 42-16; see also Doc. 1, ¶ 30.) But it required the Mother file proof of return tickets before she could leave. (Doc. 42-16, p. 4.) The Mother complied and filed tickets, booking departure on February 12, 2019 and a return on February 22, 2019. (Doc. 42-17.)

The Father appealed the travel decision. (See Docs. 42-18, 42-19.) While the appeal was pending, he was shot while breaking and entering into a dwelling. (Doc. 1, ¶ 32; Doc. 35, pp. 54:17-55:9.) The Father was convicted for theft and burglary; he has served about two years in prison and is eligible for release from custody in about three months for good behavior. (Doc. 35, pp. 35:24-36:2, 48:15-16, 52:12-14, 54:17-20.) While incarcerated, the Father continued to write his Children letters and the Children kept visiting the Grandmother under the Agreement. (Doc. 35, pp. 49:11-14, 85:17-86:4, 94:19-24.)

On January 31, 2019, the Brazilian appeals court affirmed the travel decision, overruling the Father's objections. (Docs. 42-18, 42-19.) The Mother and Children left Brazil on February 12, 2019 to travel to the U.S., but never returned. (Doc. 35, pp. 43:20-44:10, 92:5-10; see also Doc. 1, ¶ 38.)

In late February the Mother texted the Grandmother to tell her the Children were doing well—but after a few short exchanges, the Mother cut off all contact. (Doc. 42-7; Doc. 35, pp. 91:18-92:10; see also Doc. 1, ¶ 41.) After learning the Children had not returned as scheduled, the Father began legal proceedings in Brazil. (Doc. 35, pp. 43:20-44:2; Docs. 42-24, 42-25.) He tried reaching out to the Mother—even getting the Mother's attorneys to reach out too, but there was no response. (Doc. 35, p. 44:5-10; Docs. 42-24, 42-25.) After about 8 months of filing notices with Brazilian courts, during which time they confirmed the Children never returned to Brazil, Petitioners learned they would need to pursue relief under the Hague Convention. (Doc. 35, pp. 44:9-20, 93:11-18; see also Doc. 1, ¶ 48.) So the Father and Grandmother filed a Hague application on December16, 2019, and on December 30, 2019 it was transmitted to the U.S. Department of State. (Doc. 1, ¶ 49.) The Father and Grandmother then filed a Hague petition, here, on July 22, 2020 seeking a court order for the return of the Children to Brazil. (Doc. 1.)

As to the Mother and Children: upon coming to the U.S. in February 2019, the Mother, her husband, and the Children stayed with the Mother's family before moving into a condominium with a long-term lease. (Doc. 39, pp. 17:20-22, 23:11-21; Doc. 43-42.) Last year, the Children were attending school in Orange County; this year the Children are attending a new school, Mater Palms Academy. (Doc. 24, pp. 5:6-13; Doc. 39, pp. 18:18-19:3; Doc. 43-44.)

After receiving the Hague petition, the Court held a show cause hearing and enjoined the Children from traveling out of the Court's jurisdiction. (See Docs. 3, 15.) The Court later held the evidentiary Hearing. (Docs. 29, 30, 33.) With briefing complete, the matter is ripe. (Docs. 1, 20, 40-43.)


To determine whether return is appropriate, the Court must answer three questions: (1) did Petitioners establish by a preponderance of the evidence a prima facie case for the Children's return?; (2) did the Mother establish any affirmative defenses?; and (3) if the Mother established an affirmative defense, should the Court in its discretion still order the return of the Children to Brazil? See Mendez Lynch v. Mendez Lynch, 220 F.Supp. 2d 1347, 1357 (M.D. Fla. 2002). Let's begin.

A. Prima Facie Case

To establish a prima facie case, Petitioners must show, by a preponderance of the evidence: (1) the Children were habitual residents of Brazil immediately before their retention in the U.S.; (2) the Respondent's retention violated Petitioners' custody rights under Brazilian law; and (3) Petitioners had been exercising their custody rights at the time of wrongful retention.7 See Berenguela-Alvarado v. Castanos, 950 F.3d 1352, 1358 (11th Cir. 2020); see also 22 U.S.C. § 9003(e)(1). The Mother does not contest the Children were habitual residents of Brazil but argues the Petitioners didn't have rights of custody and hadn't been exercising those rights at the time of removal. (Doc. 40, ¶ 5; see also Doc. 35, p. 38:8-17; Docs. 43-3 to 43-5.) The existence of custody rights is "determined by the law of the country in which the [Children] habitually reside[d] at the time of removal." Hanley, 485 F.3d at 645. Let's take each Petitioner.

The Grandmother first. The Grandmother asserts she has rights of custody over the Children "by reason of a judicial . . . decision, or by reason of an agreement having legal effect." (Doc. 41, p. 8 (citing Convention, art. 3).) She argues the Agreement gives her custody rights because it entitled her to take the Children to and from school, have them stay with her for...

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