909 F.3d 1079
11th Cir.2018Background
- Child M.A.Y., born in Colombia 2012, lived there continuously until November 2015; mother Hadylle Lesmes and child obtained U.S. permanent residency and traveled to the U.S. on Nov. 24, 2015.
- Father Johan Calixto signed a Colombian travel consent form permitting the 2015 departure and listing a November 2016 return date; he supported the daughter’s residency application and attended departure to the airport.
- Parties dispute whether the parents were still a couple in late 2015 and whether the travel consent’s 2016 return date reflected a conditional agreement (father’s consent contingent on his joining them) or merely a visit option.
- Calixto filed a Hague Convention petition in 2017 seeking return of M.A.Y., alleging wrongful retention from her habitual residence, Colombia.
- The magistrate judge and district court found the parents shared an intent to change M.A.Y.’s habitual residence to the United States and that M.A.Y. acclimatized there; therefore retention was not wrongful.
- The Eleventh Circuit remanded for further factual findings because the district court failed to resolve key factual disputes about (1) whether the parents’ intent was conditional on Calixto’s ability to join and (2) the meaning of the travel-consent return date.
Issues
| Issue | Plaintiff's Argument (Calixto) | Defendant's Argument (Lesmes) | Held |
|---|---|---|---|
| Whether M.A.Y.’s habitual residence changed from Colombia to the U.S. by Nov. 2016 | No — Calixto contends his consent was conditional: he only authorized one-year absence and expected to join them; thus no shared unconditional intent to abandon Colombia | Yes — Lesmes contends the relationship ended before travel and both parents agreed M.A.Y. would live in the U.S. regardless of Calixto’s ability to join | Remanded — factual dispute over shared vs. conditional intent unresolved; district court must make findings (shared intent is a factual question reviewed for clear error) |
| Whether the travel-consent form’s Nov. 2016 return date shows conditional intent by Calixto | The return date was a binding limit ensuring M.A.Y. would return if Calixto could not join — so intent was conditional | The date only preserved a visitation option after one year and did not show a conditional relocation agreement | Remanded — court erred in refusing to consider that the travel-consent could express conditional intent; factual finding required on its meaning |
| Whether the district court’s factual findings on shared intent and acclimatization were adequate | Calixto argues the court improperly credited evidence without resolving key conflicts (status of relationship, meaning of consent form) | Lesmes defends district court’s inference of shared intent and acclimatization based on documentary and testimonial evidence | Remanded — district court must resolve conflicting testimony and, on remand, may also address alternative Ruiz tests (objective acclimatization/attachments) |
Key Cases Cited
- Hanley v. Roy, 485 F.3d 641 (11th Cir. 2007) (describing Convention’s purpose to protect children from wrongful removal/retention)
- Ruiz v. Tenorio, 392 F.3d 1247 (11th Cir. 2004) (adopting settled‑intention test for change of habitual residence and discussing acclimatization)
- Chafin v. Chafin, 742 F.3d 934 (11th Cir. 2013) (petitioner’s burden and heightened evidence standard if no shared settled intent)
- Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001) (reasoning on forming a settled intention to abandon prior habitual residence)
- Mota v. Castillo, 692 F.3d 108 (2d Cir. 2012) (parent’s consent held conditional where primary caretaker attempted but failed to join child and sought return)
- Hofmann v. Sender, 716 F.3d 282 (2d Cir. 2013) (affirming that relocation intent may be conditional on parents remaining together as a family)
- Seaman v. Peterson, 766 F.3d 1252 (11th Cir. 2014) (discussing Convention’s gatekeeping role and forum determination)