Duran-Peralta v. Luna, 1:16-cv-07939

Petitioner Juana Livia Duran-Peralta (Dominican Republic citizen) seeks return of her daughter I.M., born in the Dominican Republic on August 5, 2015, pursuant to the Hague Convention and ICARA; respondent Johnny Antonio Luna (U.S. resident/citizen) brought I.M. to the U.S. on October 12, 2015 and retained her.
Petitioner and Luna had a prior romantic/sexual relationship in the Dominican Republic; Luna testified, belatedly, that petitioner was a surrogate for him and his wife — the court found that account not credible and credited petitioner’s testimony that she is I.M.’s mother.
Petitioner signed a two-page document (the “Release”) at respondent’s counsel’s office, believing it authorized medical care in the U.S.; the Release purported to waive her rights but was not explained by counsel to petitioner and was held invalid under Dominican law in an earlier memorandum opinion.
Petitioner repeatedly communicated with Luna and expected I.M. to be returned after temporary medical visits; Luna never returned with I.M., and petitioner filed this action within one year of removal.
After an evidentiary bench trial the court found the Dominican Republic was I.M.’s habitual residence at time of removal and that petitioner had custody rights which were being exercised; the court ordered I.M.’s return and directed briefing on costs.

Issue	Plaintiff's Argument (Duran-Peralta)	Defendant's Argument (Luna)	Held
Habitual residence of child	I.M. was habitually resident in the Dominican Republic; parents shared intent for DR; child had not acclimatized to U.S.	The Release and surrounding circumstances show a shared intent that I.M. reside in the U.S.	Dominican Republic was I.M.’s habitual residence; Release did not show petitioner intended permanent residence in U.S.
Wrongful removal / custody rights	Petitioner had custody rights under Dominican law and was exercising them; removal/retention breached those rights	Respondent contends petitioner waived custody via the Release and relies on a certificate stating no custody agreement is in place	Petitioner retained custody rights; prior memorandum found Release ineffective under Dominican law; removal was wrongful
Article 13 consent / acquiescence exception	N/A — petitioner did not consent to permanent retention	Luna argues petitioner consented or later acquiesced (via Release and conduct)	Court rejected consent/acquiescence; petitioner credibly believed removal was temporary for medical care
Article 12 settled-child exception & costs	N/A — filed within one year, seeks return and costs	Luna argues I.M. is settled in the U.S., so return not required; contests costs	Article 12 inapplicable because petition filed within one year; court ordered return and permitted briefing on costs under 22 U.S.C. § 9007(b)(3)

Gitter v. Gitter, 396 F.3d 124 (2d Cir. 2005) (framework for Hague Convention habitual-residence inquiry)
Ozaltin v. Ozaltin, 708 F.3d 355 (2d Cir. 2013) (definition of wrongful removal under Hague Convention)
Guzzo v. Cristofano, 719 F.3d 100 (2d Cir. 2013) (effect of signed parental agreement on parents’ shared intent for habitual residence)
Blondin v. Dubois, 189 F.3d 240 (2d Cir. 1999) (exceptions to return under Hague Convention narrowly construed)
Diorinou v. Mezitis, 237 F.3d 133 (2d Cir. 2001) (abductor cannot create new habitual residence by wrongful removal)
Mota v. Castillo, 692 F.3d 108 (2d Cir. 2012) (court ordinarily must order prompt return upon petitioner meeting burden)
Kijowska v. Haines, 463 F.3d 583 (7th Cir. 2006) (policy against rewarding abductors by recognizing post-abduction acclimatization)
Miller v. Miller, 240 F.3d 392 (4th Cir. 2001) (wrongful removal cannot create new habitual residence)
Holder v. Holder, 392 F.3d 1009 (9th Cir. 2004) (importance of parental shared intent for very young children)
Whiting v. Krassner, 391 F.3d 540 (3d Cir. 2004) (shared parental intent paramount for infants)
Maxwell v. Maxwell, 588 F.3d 245 (4th Cir. 2009) (conditional or trial moves do not establish new habitual residence)