Moura v. Cunha

Decision Date22 December 2014
Docket Number1:13–cv–12805–WGY.,Civil Action Nos. 1:13–cv–12831–WGY
Citation67 F.Supp.3d 493
CourtU.S. District Court — District of Massachusetts
PartiesMaurisa Dos Santos MOURA, Petitioner, v. Christine Silva CUNHA, Respondent. Patrick Brendan Gallagher, Petitioner, v. Mary Doris Gallagher, Respondent.

Bryan F. Carr, Zimerman & Carr, P.C., Everett, MA, for Maurisa Dos Santos Moura.

Rachel L. Rado, Law Offices of Rachel L. Rado LLC, Boston, MA, for Christine Silva Cunha.

Philomena A. Barboza, Philomena A. Barboza & Associates, Richard E. Kuhn, III, Fall River, MA, for Patrick Brendan Gallagher.

Joseph F. Comenzo, The Law Office of Joseph F. Comenzo, Brockton, MA, Stephen H. Merlin, Office of Stephen H. Merlin, Brockton, MA, for Mary Doris Gallagher.


YOUNG, District Judge.


This opinion addresses two different cases under the Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention” or “Convention”). The two cases dealt with fairly different situations. In the first, the child was not abducted from her country of residence by one of the parents. Rather, the mother allowed a friend—allegedly, the child's godmother—to bring the child from Brazil, her country of residence, to the United States. After the child's authorization to travel had expired, the purported godmother refused to take the child back to Brazil, despite the mother's attempts to have her back. Finally, the mother decided to pursue the return of the child to Brazil under the Hague Convention before this Court. In the second case, the mother brought her children from Ireland to the United States and failed to return to Ireland on the round trip tickets' return date. The father then pursued the return of the children to Ireland under the Hague Convention before this Court. In both cases, but for different reasons, this Court ordered the return of the children to their country of residence. Considered together, the two cases provide a broad overview of the Convention's framework and warrant a considered discussion. This opinion, therefore, constitutes the Court's more expanded rulings of law as contemplated by Fed.R.Civ.P. 52.

A. Moura v. Cunha

Maurisa dos Santos Moura (Moura) filed her petition against Christine Silva Cunha (Cunha) on November 8, 2013. Verified Compl. & Pet. Return Child (“Moura's Pet.”), ECF No. 3. Moura alleged that Cunha, a friend but not a relative, was unlawfully keeping Moura's child, Luana Moura (“Luana”), in the United States. Id. ¶¶ 1, 6. According to Moura, Luana was born in Framingham, Massachusetts in September 2008, but mother and daughter soon relocated and established habitual residence in Brazil, Moura's country of origin. Id. ¶¶ 7–8. In June 2011, Moura granted permission for Luana to travel to the United States in Cunha's company. Id. ¶ 8. Moura reauthorized Cunha to travel with Luana in the United States in March 2012, with that reauthorization expiring on October 20, 2012. Id. Following this expiration date, however, Cunha has continually refused Moura's demand that she return Luana to Brazil. According to Moura, because she “never acquiesced or consented to the retention of [Luana] beyond October 20, 2012[in] the United States ... [Cunha]'s retention of [Luana] is wrongful.” Id. ¶¶ 12–13. Accordingly, Moura requested this Court to order the return of Luana to Brazil. Id. § VIII.

The case was initially assigned to Judge Tauro, Electr. Notice, Nov. 8, 2013, ECF No. 1, who entered an order allowing Moura's petition to show cause and scheduling a hearing for Cunha to “show cause ... why [Luana] should not be returned to Brazil.” Order, Nov. 20, 2013, ECF No. 11.

On December 3, 2013, the case was reassigned to this Court. Electr. Notice, Dec. 3, 2013, ECF No. 13. Two days later at the show cause hearing, the parties agreed that the case should proceed to trial, which was set for the following week. Electr. Clerk's Notes, Dec. 5, 2013, ECF No. 16. At the end of the trial, this Court entered its findings and rulings from the bench and ordered the return of Luana “to her mother in Brazil.” Electr. Clerk's Notes, Dec. 12, 2013, ECF No. 18.

B. Gallagher v. Gallagher

On November 6, 2013, Patrick Brendan Gallagher (Brendan) filed a petition requesting the return of his three children to Ireland, their purported country of habitual residence, after the children were allegedly wrongfully removed by their mother, Mary Doris Gallagher (Mary). Verified Pet. Return Minor Child Pet'r (“Brendan's Pet.”), ECF No. 1. In his petition, Brendan affirmed that he is married to Mary and that the family lived in Ireland, where both parents exercised custodial rights over the three children they had together. Id. ¶¶ 8, 13. Brendan then claimed that Mary took the children on a vacation to Massachusetts on May 19, 2013, to visit family on Cape Cod. Id. ¶ 15. Mary and the children were supposed to fly back to Ireland on August 19, 2013, which never happened. Id. Brendan then stated that Mary filed a petition for custody and a motion for an emergency hearing in the Massachusetts Probate and Family Court of Barnstable County; that court allowed the motion and granted Mary custody of the children.Id. ¶ 16.

On January 7, 2014, Mary responded to Brendan's petition in this Court, disputing that Ireland was in fact the children's country of habitual residence and also that they were wrongfully removed. Answer Verified Pet. Return Minor Children Pet'r (“Mary's Answer”), ECF No. 9. A scheduling conference was held on January 17, 2014, and a bench trial was set for February 7, 2014. Electr. Clerk's Notes, Jan. 17, 2014, ECF No. 14. After a two-day trial held on February 7 and 10, 2014, this Court entered its findings and rulings from the bench and ordered the return of the children to Ireland. Electr. Clerk's Notes, Feb. 10, 2014, ECF No. 26.

A. Legal Standard

The Hague Convention, Oct. 24, 1980, T.I.A.S. No. 11,670, reprinted in 51 Fed.Reg. 10,494 (Mar. 26, 1986) (“Hague Convention”), incorporated into United States law by 22 U.S.C. §§ 9001 et seq., establishes a statutory scheme designed “to secure the prompt return of children wrongfully removed to or retained in any Contracting State.” Hague Convention art. 1(a). A court adjudicating a dispute under the Convention must make two inquiries. The first is a threshold inquiry as to whether the child was wrongfully removed from the jurisdiction in which he or she was habitually resident. If so, this creates a presumption in favor of return. The court must then proceed to the second inquiry, wherein it evaluates whether any exceptions apply that serve to rebut this presumption. See id. arts. 12–13.

1. Threshold Inquiry

Article 3 of the Convention states that:

The removal or the retention of a child is to be considered wrongful where: (a) it is in breach of rights of custody attributed to a person ... under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of removal or retention those rights were actually exercised ... or would have been so exercised but for the removal or retention.

Id. art. 3.

a. Habitual Residence

The first step of the threshold inquiry is the determination of whether there is a person with a right to custody under the laws of the country of the child's habitual residence. Frequently, this prong of the analysis hinges on identifying what country meets this standard. The Convention does not define “habitual residence,” but the First Circuit has “adopted an approach that begins with the parents' shared intent or settled purpose regarding their child's residence.” Nicolson v. Pappalardo, 605 F.3d 100, 104 (1st Cir.2010) ; see also Londono v. Gonzalez, 988 F.Supp.2d 113, 125 (D.Mass.2013) (Saylor, J.) ([A] child's habitual residence is generally determined by asking whether the prior place of residence was effectively abandoned and a new residence established by the shared actions and intents of the parents coupled with the passage of time.”).

While parental intent is a core factor determining residence, it is not the exclusive one, and courts also consider a secondary factor—whether the child has become acclimatized to a new environment. In Gitter v. Gitter, 396 F.3d 124 (2d Cir.2005), the Second Circuit articulated this test in a formulation that has been broadly followed by other courts:

First, the court should inquire into the shared intent of those entitled to fix the child's residence (usually the parents) at the latest time that their intent was shared. In making this determination the court should look, as always in determining intent, at actions as well as declarations. Normally the shared intent of the parents should control the habitual residence of the child. Second, the court should inquire whether the evidence unequivocally points to the conclusion that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents' latest shared intent.

Id. at 134 ; see also Darin v. Olivero–Huffman, 746 F.3d 1, 11–12 (1st Cir.2014) (noting that objective facts can overcome shared parental intent in determining a child's habitual residence (citing Mozes v. Mozes, 239 F.3d 1067, 1081 (9th Cir.2001) )).

b. Exercise of Custody

Once a court has determined a child's country of habitual residence, it must evaluate whether the child's removal interfered with the actual exercise of custody of the child by a person given the right to exercise custody by the country in question. Hague Convention art. 3. A person has right of custody over a child if she has “rights relating to [his or her] care and ... at least a shared right to determine [his or her] place of residence,” and a court may find she “would have exercised” her rights if she “persistently sought custody,” including petitioning for custody in her country of residence. Kufner v. Kufner, 519 F.3d 33, 39–40 (1st Cir.2008).


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  • Stirk v. Lopez
    • United States
    • U.S. District Court — Middle District of Florida
    • March 25, 2021
    ...can exercise "rights of custody" by initiating a custody action in the country of the child's "habitual residence." Moura v. Cunha, 67 F. Supp. 3d 493 (D. Mass. 2014). Whether a parent exercises "rights of custody" is a modest standard. Short of clear and unequivocal abandonment of thechild......
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    • August 1, 2016
    ...her rights if she ‘persistently sought custody,’ including petitioning for custody in her country of residence." Moura v. Cunha , 67 F.Supp.3d 493, 498 (D.Mass.2014) (quoting Kufner, 519 F.3d at 39-40 ); see e.g. Hazbun Escaf v. Rodriquez , 200 F.Supp.2d 603, 612–13 (E.D.Va.2002) (finding t......

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