Londono v. Gonzalez

Decision Date18 November 2013
Docket NumberCivil Action No. 13–11106–FDS.
Citation988 F.Supp.2d 113
PartiesFrancelly Sanchez LONDONO, Petitioner, v. Nelson GONZALEZ, Respondent.
CourtU.S. District Court — District of Massachusetts


Peter J. Duffy, Barry S. Pollack, Pollock Solomon Duffy LLP, Boston, MA, for Petitioner.

Mary Alys Azzarito, Bruce & Kelley P.C., Burlington, MA, Stephen J. Cullen, Kelly A. Powers, Miles & Stockbridge, P.C., Washington, DC, for Respondent.


SAYLOR, District Judge.

This is a petition under the International Child Abduction Remedies Act (“ICARA”), 42 U.S.C. 11601, and the Hague Convention on the Civil Aspects of Child Abduction, Oct. 25, 1980, T.I.A.S. N. 11,670, 1343 U.N.T.S. 89, reprinted in 51 Fed. Ref. 10,494 (Mar. 26, 1986) (“the Hague Convention”). Petitioner Francelly Sanchez Londono is the mother of E.G., a minor child. Respondent Nelson Gonzalez is E.G.'s father. Petitioner seeks the return of E.G. from Massachusetts to Colombia.

The Court held a hearing on the petition from October 28 to November 4, 2013. For the reasons set forth below, the Court finds that E.G. was retained in the United States by her father in December 2011; that her habitual residence was the United States at the time of retention; and that her retention was not wrongful under the ICARA and the Hague Convention. Accordingly, her mother's request for a remedy of return will be denied, and any dispute concerning rights of access and custody must be decided under the laws of the United States.

The Court's finding is a very narrow one, in keeping with the language and purposes of the ICARA and the Hague Convention. The Court is not determining whether the mother should be granted custody of E.G., or even whether E.G. should be raised exclusively in the United States. Rather, the Court is concluding in substance that E.G. was not unlawfully removed or detained to the United States, and that the appropriate authority to decide issues of custody and access is the Massachusetts Family and Probate Court rather than the courts of Colombia.

I. Findings of FactA. Francelly Sanchez Londono and Her Entry into the United States

1. Francelly Sanchez Londono is a Colombian citizen. (Ex. 2) She is originally from Manizales, Colombia. (Tr. I: 40).

2. Sanchez is a native Spanish speaker, and speaks very little English. (Tr. II: 56).

3. Sanchez attended the Autonomous University of College of Manizales. (Tr. I: 41).

4. In college, Sanchez met Jorge Andres Agudelo. (Tr. I: 42). They did not marry, but they had a daughter, C.A., who was born on September 12, 1998. (Tr. I: 41).

5. In 2004, Sanchez decided to move to the United States for professional and financial reasons, and to help support her mother and daughter. (Tr. I: 43).

6. Sanchez came to the United States illegally. ( See Tr. I: 54). She paid $7,450 to smugglers to take her across the Mexican border into Texas. (Tr. I: 44).

7. At no time between 2004 and 2011 was Sanchez legally present in the United States. ( See Tr. I: 44, 61–62).

8. Sanchez crossed into Texas from Mexico at the end of 2004. (Tr. I: 45).

9. On entering the United States, she made her way to Marlborough, Massachusetts. (Tr. I: 46–47). She took a position at New Horizons, a home for the elderly. (Tr. I: 47).

B. Marriage of Sanchez and Nelson Gonzalez

10. In mid–2005, while working at New Horizons, Sanchez met Nelson Gonzalez. (Tr. I: 47–48; Tr. III: 40).

11. Gonzalez first came to the United States from the Dominican Republic in 1987. (Tr. III: 38).

12. Gonzalez became a naturalized United States citizen on April 13, 2000. (Tr. III: 39; Ex. 100).

13. Gonzalez is a native Spanish speaker, and is also reasonably fluent in English. ( See Tr. III: 36).

14. Gonzalez has a seventeen-year-old daughter, K.G., from a previous relationship. ( See Tr. II: 48; Tr. III: 43–44). K.G. lives in Massachusetts. (Tr. III: 44).

15. On December 30, 2005, Sanchez and Gonzalez were married in Framingham, Massachusetts. (Tr. I: 48; Tr. III: 39; Ex. 103).

C. Birth of E.G.

16. Sanchez and Gonzalez had a daughter, E.G., born on October 12, 2006. (Tr. I: 49; Ex. 104).

17. E.G. is a citizen of both the United States and Colombia. (Tr. I: 63–64, Exs. 1, 104).

18. The family lived together in Framingham until December 7, 2008. (Tr. I: 48–49, 62).

19. During that time, Sanchez was E.G.'s primary caregiver. (Tr. I: 24, 50).

D. Problems in the Marriage

20. By their second year of marriage, Sanchez and Gonzalez began having frequent arguments. (Tr. I: 51–54).

21. The arguments were mainly verbal, although on one occasion in 2007 Gonzalez pushed her in the kitchen of their home. (Tr. I: 52; Tr. II: 39–40).

22. Sanchez had stopped working when she gave birth to E.G. in 2006. (Tr. I: 50). She testified that Gonzalez became upset when she returned to work in 2008. (Tr. I: 52–53).

23. According to Sanchez, Gonzalez was frequently worried because he was afraid immigration would arrest her. (Tr. I: 53–54).

24. Sanchez also testified that Gonzalez was controlling and insecure. (Tr. I: 53–54; Tr. II: 36–37).

E. Concerns over Sanchez's Immigration Status

25. Beginning in 2006, the couple sought advice from several individuals on how to make Sanchez's presence in the United States legal. (Tr. I: 54–55; Tr. III: 42–43, 55–57).

26. These individuals included an immigration consultant named Carlos Galvez and an immigration attorney named Kenneth Liebman. (Tr. I: 54–55; Tr. II: 43–44; Tr. III: 56–57).

27. To help pay for immigration advice, Sanchez's relatives in Colombia sent Gonzalez two Western Union money transfers totaling $8,045.54. (Tr. I: 55–56; Exs. 7, 8).

28. In 2008, Sanchez began working at Eliot Healthcare in Natick, Massachusetts. (Tr. I: 58–59).

29. While driving in Natick, she was pulled over by a police officer for a traffic violation. (Tr. I: 59). She gave him her Colombian driver's license and her American marriage certificate. (Tr. I: 60).

30. The police officer called Gonzalez, who had to come pick up Sanchez. (Tr. I: 60–61; Tr. III: 58). The police officer gave Sanchez a citation for $400. (Tr. I: 61).

31. Because of this incident, Gonzalez became increasingly concerned about the fact that Sanchez was not legally in the United States, and that she could get arrested and deported. (Tr. III: 42, 58–59).

F. Sanchez's Return to Colombia

32. At some point in 2008, Sanchez and Gonzalez agreed that she would move back to Colombia. (Tr. I: 61–62; Tr. III: 54–55). Both believed that it would be easier for Sanchez to obtain legal residency in the United States if she returned to Colombia and applied from there. (Tr. I: 61–62; Tr. III: 54–55).

33. They also agreed that Sanchez would take E.G. with her to Colombia. (Tr. III: 54–55; Ex. 108).

34. At the time, Sanchez and Gonzalez planned that Sanchez and E.G. would move back to the United States when the mother could legally return. (Tr. I: 61–62; Tr. II: 18, 37–38).

35. The move was also intended to reunite Sanchez with her older daughter, C.A. (Tr. III: 54–55). As of 2008, Sanchez had been separated from C.A. for a four-year period. (Tr. II: 26–27).

36. Sanchez and Gonzalez intended for C.A. to come live with them in the United States once the immigration issues had been resolved. (Tr. II: 42; Tr. III: 54–55).

37. Sanchez and E.G. moved to Colombia on December 7, 2008. (Tr. I: 62; Ex. 2). E.G. was two years old at the time. (Tr. I: 62).

G. Residence in Colombia

38. Beginning in December 2008, Sanchez, E.G., and C.A. lived together in Manizales, Colombia with Sanchez's mother. (Tr. I: 64–65).

39. E.G. spoke Spanish, not English, while in Colombia. ( See Tr. I: 65; Tr. II: 70–71).

40. E.G. attended preschool in Colombia. (Tr. I: 66; Exs. 5, 23).

41. E.G. also spent time with C.A., her grandmother, other relatives, friends and schoolmates, and members of her church. (Tr. I: 64–65, 69–71; Ex. 24).

42. After moving to Colombia, Sanchez registered E.G. as a Colombian citizen. (Tr. I: 63–64; Ex. 1).

43. While Sanchez and E.G. were living in Colombia, Gonzalez and E.G. spoke two or three times a day by telephone. (Tr. I: 75; Tr. III: 6). They also communicated through Skype video conference by computer. (Tr. I: 75; Tr. III: 6).

44. Gonzalez visited Colombia on one occasion for five days in 2010. (Tr. I: 78–79; Tr. III: 101).

45. During that time, Gonzalez met Sanchez's family for the first time and the two went on vacation together. (Tr. I: 78–79; Ex. 17).

46. Other than that one visit, between December 2008 and May 2011 Gonzalez never saw E.G. in person. (Tr. III: 89–90). During that period, he did not ask that she be sent to see him in the United States. (Tr. III: 90).

H. Gonzalez's Activities in the United States and Sanchez's Immigration Petition

47. In 2008, Gonzalez started working on petitions to the United States immigration authorities seeking permission for Sanchez and C.A. to immigrate into the United States. (Tr. I: 79–81; Tr. III: 59–60, 67–68).

48. Gonzalez filed a petition for Sanchez in January 2009. (Tr. III: 59–60; Ex. 109).

49. Gonzalez filed a petition for C.A. in December 2009. (Ex. 110).

50. As of December 2008, when Sanchez moved back to Colombia, she and Gonzalez expected that the stay would be relatively short. (Tr. III: 91–92). Specifically, they expected that Sanchez and C.A. would be granted admission into the United States in approximately seven to nine months. (Tr. III: 91–92).

51. In 2009, Gonzalez met Erin McShane. (Tr. III: 25). He began a romantic relationship with her about a year later. (Tr. III: 25).

52. On December 30, 2010, C.A.'s petition was granted and she was given an immigrant visa into the United States for one year of permanent residence. (Tr. I: 80; Tr. III: 68; Ex. 110 at *220).

53. Sanchez's petition was not granted because she was excluded from the country for ten years for having entered the country illegally. (Tr. I: 80; Ex. 109 at * 138).

54. Sanchez applied for a waiver of the exclusion so she could enter the country. (Tr. I: 80). On ...

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