Darin v. Olivero-Huffman
746 F.3d 1
1st Cir.2014Background
- Parents: Lisandro Darín (Argentina) and Lua Olivero-Huffman (U.S./Puerto Rico). Son (LAD) born in Buenos Aires 2008; holds Argentine and U.S. citizenships.
- Family traveled frequently between Argentina and the U.S.; planned January–March 2011 trip to Florida/Puerto Rico with scheduled return to Argentina on March 2, 2011.
- In mid‑March 2011 Olivero told Darín she intended to remain in Puerto Rico with LAD; Darín returned to Argentina in July 2011 after signing a two‑page affidavit authorizing Olivero to care for LAD while he left (he testified he was forced to leave because his visa expired).
- Darín filed for return of LAD under the Hague Convention/ICARA on December 19, 2011, arguing wrongful retention; district court denied relief, finding Puerto Rico had become LAD’s habitual residence and that Darín had consented/acquiesced.
- First Circuit reversed: held retention occurred in mid‑March 2011, Argentina was LAD’s habitual residence at that time, and Olivero failed to prove consent or acquiescence; ordered LAD returned to Argentina and remanded fee/expense issues.
Issues
| Issue | Plaintiff's Argument (Darín) | Defendant's Argument (Olivero) | Held |
|---|---|---|---|
| Whether a "wrongful retention" occurred under the Hague Convention | Argentina was LAD’s habitual residence immediately prior to retention in mid‑March 2011; Darín had custody and was exercising it | No wrongful retention because parents agreed (via affidavit/executed conduct) that LAD would remain in Puerto Rico | Held: Wrongful retention occurred — retention date is mid‑March 2011 and Argentina was habitual residence |
| Date of retention (operative date for habitual‑residence inquiry) | Retention occurred when Olivero announced mid‑March 2011 she would stay in Puerto Rico | District court treated July 2011 (when Darín left) as operative date | Held: mid‑March 2011 is the relevant date; district court’s July date was clear error |
| Habitual residence at time of retention | Argentina was the child’s habitual residence immediately prior to mid‑March 2011 | Puerto Rico/United States had become the child’s habitual residence by mid‑March/July 2011 (Affidavit and acclimatization) | Held: Argentina was the habitual residence; no shared parental intent to relocate, and acclimatization alone does not control |
| Consent / Acquiescence defenses to return | N/A (plaintiff denies consent/acquiescence) | Darín consented via conduct and the affidavit; or subsequently acquiesced by delay, communications, and not seeking immediate return | Held: Olivero failed to prove consent or acquiescence by preponderance; affidavit did not constitute clear consent or renunciation and post‑retention conduct did not show acquiescence |
Key Cases Cited
- Abbott v. Abbott, 560 U.S. 1 (U.S. 2010) (explains Convention’s purpose and that return decisions restore pre‑removal status quo)
- Nicolson v. Pappalardo, 605 F.3d 100 (1st Cir.) (petitioner’s burden and standards for consent/acquiescence under ICARA)
- Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001) (requirement that a new habitual residence entails a settled intention to abandon the prior one)
- Feder v. Evans‑Feder, 63 F.3d 217 (3d Cir. 1995) (habitual residence focuses on child’s acclimatization and parents’ shared intent)
- Baxter v. Baxter, 423 F.3d 363 (3d Cir. 2005) (distinguishes consent (pre‑removal) from acquiescence (post‑removal) and standards for each)
- Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001) (habitual residence versus temporary absence; objective facts versus unilateral parental intent)
- Yaman v. Yaman, 730 F.3d 1 (1st Cir.) (Article 12’s one‑year rule and ‘now‑settled’ defense context)
- Walsh v. Walsh, 221 F.3d 204 (1st Cir.) (explaining return is ordinarily required after wrongful retention)
- Kufner v. Kufner, 519 F.3d 33 (1st Cir.) (Convention’s deterrent purpose against international forum shopping)