67 F. Supp. 3d 493
D. Mass.2014Background
- Two Hague Convention cases before this Court involving two sets of parents seeking return of children.
- Moura v. Cunha: Luana, born 2008 in the U.S., lived with Moura in Brazil; Cunha, a friend, was authorized to travel with Luana to the U.S. and retained Luana after authorization expired in Oct. 2012.
- Gallagher v. Gallagher: Brendan and Mary lived in Ireland; Mary took the children to Massachusetts in May 2013 with round‑trip tickets for return Aug. 19, 2013; Mary never returned with the children to Ireland.
- Court held habitual residence in both cases was Brazil (for Luana) and Ireland (for the Gallagher children) and that the removals were wrongful under Article 3.
- For Moura, no valid “well‑settled” evidence and no grave risk found; for Gallagher, consent to temporary stay was not proven; both petitions granted return to habitual-residence countries.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Threshold inquiry—habitual residence and wrongful removal | Moura: Luana’s removal was wrongful; habitual residence Brazil. | Cunha: Luana’s presence in U.S. not wrongful due to consent/retention. | Wrongful removal established; presumption of return |
| Grave risk exception | Cunha contends Luana faces grave risk if returned to Brazil. | N/A (Cunha bears burden on risk) | No grave risk proven; exception rejected for Luana |
| Well‑settled exception | Luana well‑settled in U.S.; strong connections established. | Not well‑settled; insufficient social ties and connections. | Not well‑settled; habitual residence remained Brazil for purposes of exception, so return ordered |
| Consent/acquiescence defense | Brendan consented to the trip for a visit or tentative stay, not permanent retention. | Mary contends consent supported retention. | Consent not proven to cover permanent retention; retention deemed wrongful; return ordered |
Key Cases Cited
- Nicolson v. Pappalardo, 605 F.3d 100 (1st Cir.2010) (shared parental intent; acclimatization and evidence matter in habitual residence)
- Gitter v. Gitter, 396 F.3d 124 (2d Cir.2005) (framework for habitual residence and intent vs. acclimatization)
- Darin v. Olivero-Huffman, 746 F.3d 1 (1st Cir.2014) (objective facts can overcome shared parental intent)
- Kufner v. Kufner, 519 F.3d 33 (1st Cir.2008) (definition of rights of custody under Article 3)
- Whallon v. Lynn, 230 F.3d 450 (1st Cir.2000) (principle that habitual residence best placed to decide custody)
- In re B. Del C.S.B., 559 F.3d 999 (9th Cir.2009) (well-settled analysis factors; substantial evidence standard)
- Blondin v. Dubois, 238 F.3d 153 (2d Cir.2001) (grave risk standard requires clear evidence of serious harm)
- Lozano v. Alvarez, 697 F.3d 41 (2d Cir.2012) (affirmed State Department standard for settled evidence)
- Baxter v. Baxter, 423 F.3d 363 (3d Cir.2005) (consent and scope of petitioner’s consent under Article 13(a))
- Gonzalez-Caballero v. Mena, 251 F.3d 789 (9th Cir.2001) (consent analysis; not strictly confined to formal agreements)