Mendez v. May
2013 U.S. App. LEXIS 26275
1st Cir.2015Background
- Father (Mendez), Argentine citizen, lived in Buenos Aires; mother (May), U.S. citizen, lived in Argentina until she moved to Boston in Sept. 2013 for work. Their son C.F.F.M. (b. 2007) is a U.S. and Argentine citizen and attended school in Buenos Aires through Dec. 2013.
- Parents separated in 2009; various custody/visitation agreements limited mother’s ability to travel with the child without father’s authorization; parties later executed a 2012 coparenting agreement permitting up to 45 days travel per year with trip-specific authorization required.
- In early Sept. 2013 the parents met and, according to the court record, agreed that the child would move permanently to Boston after the Argentine school year; they told the child the same day. Mother moved to Boston in mid-Sept.; father remained in Argentina and continued visitation until the child’s move.
- Communications about the exact move date continued: parties settled on Jan. 8, 2014, but mother attempted earlier travel and invoked her 45-day travel right; relations then broke down and father filed civil and criminal proceedings in Argentina.
- An Argentine family court denied travel authorization in Feb. 2014. On Feb. 14–16 mother left Argentina with the child (without informing father), traveled through border points, flew from Paraguay to the U.S., and settled in Massachusetts; father filed a Hague petition in the U.S. district court seeking return. The district court ordered return; the First Circuit reversed.
Issues
| Issue | Plaintiff's Argument (Mendez) | Defendant's Argument (May) | Held |
|---|---|---|---|
| Was Argentina the child’s habitual residence at time of removal? | Mendez: Child’s habitual residence remained Argentina; parents had not consummated a settled change of habitual residence. | May: Parents had a mutual, settled intent in Sept. 2013 for the child to relocate permanently to the U.S.; habitual residence was therefore the U.S. | Held: The First Circuit held the U.S. was the child’s habitual residence based on the parents’ last shared intent. |
| Did petitioner establish a prima facie case of wrongful removal under the Hague Convention? | Mendez: Yes — removal was wrongful because child was habitually resident in Argentina and father had custody rights being exercised. | May: No — because there was prior consent/agreement to relocate, so removal was not wrongful. | Held: No — petitioner failed to establish habitual residence in Argentina, so no prima facie wrongful removal. |
| Is written documentation or an actual geographic move required to change habitual residence? | Mendez: Argued absence of written agreement and child remained in Argentina until move, so no effective change. | May: Argued that neither a written memorial nor prior physical relocation is required when parents share a settled intent to change the child’s habitual residence. | Held: Court rejected requirement of written agreement or prior change in geography; shared parental intent at the last moment controls. |
| Should the court defer to the Argentine family court’s contrary finding? | Mendez: Relied on Argentine court’s finding that removal was wrongful and habitual residence was Argentina. | May: Argued that U.S. courts make their own habitual-residence determination; the record supported U.S. habitual residence. | Held: First Circuit analyzed the record de novo on habitual residence and concluded the U.S. was the habitual residence despite the Argentine decision. |
Key Cases Cited
- Abbott v. Abbott, 560 U.S. 1 (explaining Hague Convention purpose to secure prompt return of wrongfully removed children)
- Chafin v. Chafin, 133 S. Ct. 1017 (noting Convention’s return mandate and that return is not final custody determination)
- Sánchez-Londoño v. Gonzalez, 752 F.3d 533 (1st Cir.) (habitual-residence framework: shared parental intent primary, acclimatization secondary)
- Mozes v. Mozes, 239 F.3d 1067 (9th Cir.) (discussion of settled intent and geography in habitual-residence analysis)
- Redmond v. Redmond, 724 F.3d 729 (7th Cir.) (emphasizing threshold nature of habitual residence in Hague petitions)