202 F. Supp. 3d 793
N.D. Ohio2016Background
- Javier (Mexican citizen) and Fatin (U.S. citizen) married in 2012 and established a family home in Querétaro, Mexico; their daughter C.F. was born in Michigan in March 2014.
- From March–July 2014 the family lived together in Mexico; Fatin obtained Mexican resident card, opened a Mexican bank account, and C.F. received Mexican pediatric care.
- In May 2015 Fatin and C.F. traveled to Michigan for an intended limited visit; Fatin enrolled in classes and obtained benefits in Michigan and later moved to Findlay, Ohio for school.
- Javier initially consented to the May 2015 trip but, after an August 2015 phone call in which Fatin said she would not return, Javier objected and filed Hague proceedings in October 2015.
- The district court held evidentiary hearings, concluded C.F.’s retention date was August 5, 2015, found C.F.’s habitual residence immediately before retention was Mexico, rejected Fatin’s affirmative defenses, and ordered C.F.’s prompt return to Mexico.
Issues
| Issue | Plaintiff's Argument (Flores-Aldape) | Defendant's Argument (Kamash) | Held |
|---|---|---|---|
| Was C.F. wrongfully retained under the Hague Convention? | Javier: Yes — C.F. was habitually resident in Mexico and Fatin’s continued U.S. stay after August 2015 was retention without consent. | Fatin: No — C.F.’s habitual residence had shifted to the U.S., so there was no wrongful retention. | Held: Retention was wrongful; habitual residence immediately before retention was Mexico. |
| Proper date of retention / effect of initial consent | Javier: He consented to a limited visit; retention began when he clearly objected in August 2015. | Fatin: Javier consented or acquiesced to continued U.S. stay; trip was indefinite. | Held: Initial consent to the trip existed; wrongful retention began when Javier clearly communicated opposition (Aug 5, 2015). |
| Relevance of parental subjective intent for an infant’s habitual residence | Javier: Focus on the child’s acclimatization and objective contacts (not parental intent). | Fatin: Parental shared intent to move to U.S. is relevant for this very young child. | Held: For an infant, parental intent is a permissible and important consideration; but the last shared intent favored Mexico. |
| Affirmative defenses (exercise of custody, consent/acquiescence, "now settled") | Javier: He continued to exercise custody rights, did not acquiesce, and filed within one year. | Fatin: Argues Javier was not exercising custody, had acquiesced, and C.F. is settled in the U.S. | Held: Javier exercised custody (contact/efforts); no acquiescence; Article 12 "now settled" inapplicable because petition filed within one year. |
Key Cases Cited
- Friedrich v. Friedrich, 983 F.2d 1396 (6th Cir.) (Hague Convention purpose and habitual-residence framework)
- Robert v. Tesson, 507 F.3d 981 (6th Cir.) (habitual residence defined by acclimatization and settled purpose; child-centered inquiry)
- Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir.) (liberal standard for finding a parent exercised custody rights; acquiescence standards)
- Karkkainen v. Kovalchuk, 445 F.3d 280 (3d Cir.) (wrongful retention begins when petitioner clearly communicates opposition)
- Holder v. Holder, 392 F.3d 1009 (9th Cir.) (infants’ habitual residence may depend on parents’ residence and intent)
- Mozes v. Mozes, 239 F.3d 1067 (9th Cir.) (categories for cases involving conflicting parental intent and relocation)