Porretti v. Baez

Decision Date29 October 2019
Docket Number19 CV 1955 (RJD)
PartiesMARTIN PORRETTI, Petitioner, v. YANIRA BAEZ, Respondent.
CourtU.S. District Court — Eastern District of New York
OPINION AND ORDER

DEARIE, District Judge

Petitioner Martin Porretti ("Petitioner" or "Porretti") petitions this Court for the return of his daughters, CP and RP,1 to Mexico, pursuant to the Hague Convention on the Civil Aspect of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11, 670, 1343 U.N.T.S. 89 ("the Convention") and its implementing legislation, the International Child Abduction Remedies Act, 42 U.S.C. §§ 11601 et seq. ("ICARA"). In December 2016, CP and RP's mother, Respondent Yanira Baez ("Respondent" or "Baez") removed the children from Mexico and brought them to the United States. Ms. Baez is a United States citizen who lived in New York for most of her childhood and young adult life. CP is now nine years old and RP is now fourteen years old; when they moved to the United States, they were six and eleven, respectively. For the reasons that follow, Mr. Porretti's Petition is denied.

PROCEDURAL HISTORY

Mr. Porretti filed the instant Petition on April 1, 2019 and the Court held a show cause hearing on May 14, 2019. The parties engaged in discovery, which primarily involved the production and translation of Mexican court documents related to the parties' divorce andcustody proceedings. The Court conducted a bench trial on October 7 and 10, 2019. At trial, the Court heard testimony from Mr. Porretti, Ms. Baez, Ms. Baez's partner, Joseph Messing, and forensic examiner Dr. Peter Favaro. The Court also interviewed the children in camera outside the presence of counsel and the parties. The Court invited the parties to submit proposed questions for the children before the interview or propose supplemental questions after reviewing the transcript. The parties did not submit any questions for the Court. Finally, the Court received sworn affidavits from Sandy Phillips, the executive director of CP's afterschool program, Diana Perchekly, the mother of CP's best friend and Lauren Shookhoff, the assistant principal of RP's middle school. See Resp. Exs. LLLL, MMMM and NNNM.

LEGAL STANDARD

The Hague Convention protects children internationally "from the harmful effects of their wrongful removal or retention" and establishes "procedures to ensure their prompt return to the States of their habitual residence." Hague Convention, pmbl.; Abbott v. Abbott, 560 U.S. 1, 32 n.6 (2010); Ermini v. Vittori, 758 F.3d 153, 160, 167-68 (2d Cir. 2014) (explaining that "the Convention...stresses the importance of deciding matters expeditiously" and noting "protraction is hardly consonant with the Convention's objectives," which "stresses the need for...establishing swiftly a degree of certainty and finality for children" (citing Chafin v. Chafin, 568 U.S. 165, 185 (2013) (Ginsburg, J., concurring))). A parent alleging breach of his or her custody rights under the Convention "may do so by commencing a civil action by filing a petition for the relief sought in any court which has jurisdiction of such action and which is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed." 22 U.S.C. § 9003(b).

First, the Petitioner must establish a prima facie case of wrongful removal by a preponderance of the evidence. A removal is wrongful when "(1) the child was habituallyresident in one State and has been removed to or retained in a different State; (2) the removal or retention was in breach of the petitioner's custody rights under the law of the State of habitual residence; and (3) the petitioner was exercising those rights at the time of the removal or retention." Gitter v. Gitter, 396 F.3d 124, 130-31 (2d Cir. 2005) (citing Hague Convention, art. 3).

Second, once the Petitioner makes his prima facie case, the child must be repatriated unless the Respondent can successfully establish an affirmative defense. The Hague Convention contains four enumerated "narrow" affirmative defenses and a fifth unenumerated affirmative defense. It is in the Court's discretion to deny a petition if the Respondent establishes (1) the proceeding was commenced more than a year after the child's removal and the child has become settled in his or her new environment (the "well-settled" defense), Hague Convention art. 12, (2) the person seeking the child's return was not exercising his or her custody rights at the time of removal or retention, or he or she consented to—or subsequently acquiesced in—the child's removal or retention, Hague Convention, art. 13(a), (3) returning the child poses a "grave risk to his or her physical or psychological well-being or would place him or her in an intolerable situation," Hague Convention, art. 13(b), or (4) the return of the child would not be permitted by the fundamental principles of the requesting State relating to the protection of human rights and fundamental freedoms, Hague Convention, art. 20; see also Souratgar v. Fair, 720 F.3d 96, 102-03 (2d Cir. 2013) ("The district court is vested with considerable discretion under the Convention"). The first and second defenses must be established by a preponderance of the evidence, and the third and fourth defenses must be established by clear and convincing evidence. 22 U.S.C. § 9003(e). "[T]he judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and maturity at which it is appropriate to take account of its views." Hague Convention, art.13; see also Souratgar, 720 F.3d at 102-03. This defense must be established by a preponderance of the evidence. 22 U.S.C. § 9003(e).

Finally, regardless of who prevails, "a decision under the Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue." Hague Convention, art. 19; see also Mota v. Castillo, 692 F.3d 108, 112 (2d Cir. 2012). "[T]he Convention's focus is simply upon whether a child should be returned to her country of habitual residence for custody proceedings," and it is not within the province of this Court to make determinations regarding which party is the better parent. Mota, 692 F.3d at 112. Rather, the Court should be concerned with effectuating the Convention's purpose of preserving "the status quo" and "deter[ring] parents from crossing international borders" seeking alternative custody arrangements, unless at least one of the five narrow defenses applies. Blondin v. Dubois, 189 F.3d 240, 246 (2d Cir. 1999).

FINDINGS OF FACT

Based on the evidence presented at trial and having considered the parties' post-trial submissions, the Court makes the following findings of fact.

Mr. Porretti and Ms. Baez met in 2000 on a flight from San Juan, Puerto Rico to New York City. Tr. 54:14-15 (Oct. 7, 2019). At the time, Mr. Porretti, who is originally from Argentina, was working for a telecommunications company in Puerto Rico. Ms. Baez, who was working as a tax attorney in New York City, was visiting Puerto Rico. Id. at 53-55. Ms. Baez was born in Puerto Rico and lived there until she was approximately five years old. Id. The two began a long-distance relationship and in late 2001, after Mr. Porretti was relocated to Mexico for work, Ms. Baez moved there to live with him.2 Id. at 56:1-8. Mr. Porretti and Ms. Baezmarried in 2002 and had their first child, RP, in 2005. Id. at 52:17-18. In 2008, Mr. Porretti and Ms. Baez had a second child, who died shortly after birth. Id. at 58:13-24. At this time, Mr. Porretti joined a religious order called Legionaries of Christ and in carrying out the group's teachings, he told Ms. Baez not to mourn the loss of their child. Id. at 59:1-6. At this point, their relationship deteriorated "markedly." Id. at 58:13-14. In 2010, Ms. Baez gave birth to CP, and in January 2013, she filed for divorce in Mexico. The divorce action was assigned to Judge Sylvia Gomez. Id. at 53:5-6; 59:10-16.

After initiating divorce proceedings, Ms. Baez contemplated returning to New York with her children and traveled to New York alone on several occasions to reconnect with old colleagues and pursue potential employment opportunities. Id. at 59-60. On one such occasion, Ms. Baez traveled to New York from late February through early March 2013 and when she returned to the apartment she still shared with Mr. Porretti, the locks had been changed and she could not enter. Id. at 61:24-62:3. When Ms. Baez eventually entered the apartment, the children were gone and Mr. Porretti would not tell her where they were or when they would return. Id. at 66-67. Ms. Baez sat in the living room of the apartment insisting Mr. Porretti produce the children while Mr. Porretti yelled at her and called her derogatory names in front of a neighbor, an attorney and a work colleague, who had all assembled before Ms. Baez's arrival. Id. at 66-67. ("Mr. Porretti proceeded to yell and berate me for two hours, calling me stupid, an idiot, a whore, and a liar"). When the children's nanny finally brought them back to the apartment from a neighbor's house, the girls told Ms. Baez that their father said she had abandoned them and they thought they would never see her again. Id. at 67:6-17. For the next several days, Ms. Baezstayed in the apartment with Mr. Porretti and her children, but had to enter the house through the back door, only accessible down a steep flight of stairs, because she did not have key access to the front door. Id. at 68.

Three days later Ms. Baez brought a locksmith to the apartment to regain access to the front door. Ms. Baez opened the door with her new key to Mr. Porretti, "screaming" and holding a torn copy of an official notice explaining he had violated court orders by changing the locks on the marital residence. Id. at 69:2-12. With both CP and RP present, Mr. Porretti physically assaulted Ms. Baez. Id. at 69. He pulled her hair,...

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