212 F. Supp. 3d 259
D. Mass.2016Background
- Petitioner Marina De Aguiar Dias (mother) filed a Hague/ICARA petition seeking return of her 13-year-old daughter H.D. from Respondent Leonardo De Souza (father), alleging wrongful retention in the U.S. after a temporary visit from Brazil in June 2015.
- H.D. traveled on a round-trip ticket; Petitioner refused Respondent’s request to keep H.D. in the U.S.; Petitioner filed for custody in Brazil in August 2015 and obtained a temporary custody order in September 2015.
- H.D. has lived in Worcester, Massachusetts with Respondent since June 2015; evidence showed improved school performance and social activities in the U.S.; Respondent claimed Brazil posed safety and hygiene risks but admitted H.D. would not return to the previously cited unsanitary household.
- Procedurally, the district court held a Show Cause hearing; Respondent primarily argued Article 13(b) (grave risk), made limited references to the mature-child defense, and raised a well-settled defense; the court found the mature-child defense was waived but addressed its merits in any event.
- The court found retention wrongful under Article 3/ICARA, rejected Respondent’s defenses (Article 13(b) grave risk, Article 13 mature-child, Article 12 well-settled), ordered H.D. returned within 21 days, and allowed Petitioner to seek necessary expenses under 22 U.S.C. § 9007.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Wrongful retention under Article 3 / ICARA | Petitioner had custody rights in Brazil and sought H.D.'s return | Respondent claimed he was exercising custody and retention was therefore not wrongful | Court: Retention was wrongful — unilateral retention by one parent without consent interferes with other parent's rights |
| Article 13(b) grave risk of harm | Return would be safe; Petitioner will house and care for H.D. in a mid/high-income neighborhood | Return would expose H.D. to violence, unsanitary home, mentally ill grandfather, and intolerable conditions | Court: Defense fails — respondent did not prove grave risk by clear and convincing evidence |
| Article 13 mature-child exception | (Petitioner) No present objection by H.D. established | H.D. previously said she wanted to stay; is mature and objects to return | Court: Defense waived and on merits fails — no evidence H.D. presently objects or is sufficiently mature to defeat return (preponderance not met) |
| Article 12 well-settled defense | (Petitioner) Proceedings were timely; H.D. not well-settled for >1 year | H.D. has become integrated in U.S. life since June 2015 | Court: Defense barred — petition filed <1 year after wrongful retention, so Article 12 inapplicable |
| Award of necessary expenses (ICARA §9007) | Petitioner entitled as prevailing party; must itemize necessary expenses | Respondent may argue award would be clearly inappropriate | Court: Granted right to seek expenses; Petitioner ordered to file motion detailing necessary expenses; respondent may oppose |
Key Cases Cited
- Danaipour v. McLarey, 286 F.3d 1 (1st Cir. 2002) (Hague presumption favoring return; exceptions construed narrowly)
- Kufner v. Kufner, 519 F.3d 33 (1st Cir. 2008) (trial court discretion on child testimony; limits on relying on child’s views)
- Mendez v. May, 778 F.3d 337 (1st Cir. 2015) (elements for establishing wrongful removal/retention under Convention/ICARA)
- Walsh v. Walsh, 221 F.3d 204 (1st Cir. 2000) (grave-risk standard: risk must be more than serious)
- Blondin v. Dubois, 238 F.3d 153 (2d Cir. 2001) (limitations on Article 13(b); best-interest arguments insufficient)
- Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996) (‘‘clear and unequivocal abandonment’’ standard related to exercise of custody rights)
- Falk v. Sinclair, 692 F. Supp. 2d 147 (D. Me. 2010) (mature-child defense standard; case-by-case maturity assessment)
- Moura v. Cunha, 67 F. Supp. 3d 493 (D. Mass. 2014) (parental persistence in seeking custody relevant to wrongful-retention inquiry)