921 F.3d 1333
11th Cir.2019Background
- Mother (Marilys Velasquez Perez) and father (Jose Diaz Palencia) lived in Guatemala, had a child (H.J.D.V., born 2013), and were never legally married; parents separated when mother left Guatemala with the child in Oct. 2016 claiming a week trip to Mexico but instead went to the U.S.
- Father had provided financial support and day-to-day care in Guatemala; parents had a 2012 commitment ceremony not recognized as a legal union under Guatemalan law.
- After border detention, mother told father she would return once passports were obtained; father cooperated to secure passports but mother later filed asylum for herself and the child and in July 2017 informed father she would not return.
- Father filed a Hague Convention petition in U.S. district court (Feb. 2018) seeking the child’s return to Guatemala; district court held father had custody rights under Guatemalan law and that wrongful retention occurred in July 2017, and ordered return.
- Mother appealed, arguing (1) Guatemalan law (Articles 261/patria potestad) gave her exclusive custody and (2) wrongful retention occurred in Oct. 2016 (date of departure), not July 2017 (date father learned she would not return).
- Eleventh Circuit affirmed: held the father retained ‘‘rights of custody’’ under Guatemalan law (Article 253 obligations) and that wrongful retention date is when father learned consent was revoked (July 2017).
Issues
| Issue | Perez's Argument | Palencia's Argument | Held |
|---|---|---|---|
| Whether father had "rights of custody" under Guatemalan law | Article 261 gives unmarried mother exclusive custody/patria potestad, so father lacks custody rights | Article 253 imposes duties on both parents (care, support, education) that confer custody-related rights under the Hague Convention | Father has rights of custody under Article 253 (obligations imply rights relevant to Convention Art. 5) |
| Proper date of wrongful retention for statute's 1-year "now-settled" inquiry | Wrongful retention occurred Oct. 2016 when mother left Guatemala with the child | Wrongful retention occurred when father learned she would not return (July 2017), because father had initially consented and relied on mother’s promise to return | Wrongful retention date is when consent was effectively revoked / when father learned mother would not return (July 2017) |
Key Cases Cited
- Hanley v. Roy, 485 F.3d 641 (11th Cir. 2007) (Convention favors broad, flexible view of "rights of custody")
- Abbott v. Abbott, 560 U.S. 1 (2010) (look to law of habitual residence to define custody rights under Convention)
- Chafin v. Chafin, 742 F.3d 934 (11th Cir. 2013) (petitioner bears preponderance burden in Hague cases)
- Lozano v. Montoya Alvarez, 572 U.S. 1 (2014) (Article 12 "now-settled" defense and one-year rule context)
- Marks on behalf of SM v. Hochhauser, 876 F.3d 416 (2d Cir. 2017) (retention date is when custodial parent notifies noncustodial parent they will stay and not return)
- Darin v. Olivero-Hoffman, 746 F.3d 1 (1st Cir. 2014) (same rule: date consent revoked marks wrongful retention)
- Blackledge v. Blackledge, 866 F.3d 169 (3d Cir. 2017) (retention date is when noncustodial parent no longer consents and seeks to reassert custody)
- Redmond v. Redmond, 724 F.3d 729 (7th Cir. 2013) (wrongful retention often follows a parent's promise to return that is later reneged)
- Furnes v. Reeves, 362 F.3d 702 (11th Cir. 2004) (elements for wrongful removal/retention under Convention)