540 F.Supp.3d 1246
S.D. Ga.2021Background
- Mother (Andrea Rishmawy), Honduran citizen, petitioned under the Hague Convention/ICARA for return of her 3‑year‑old daughter from Father (Jaime Vergara) and Lauren Brooks after Father removed the child from Honduras in Aug 2020 and retained her in the U.S. beginning by at least Oct 12, 2020.
- Child was born and lived in Honduras until Aug 2020; parties executed a February 2020 Settlement Agreement designating Honduras as the child’s residence and setting visitation; the agreement was not yet ratified by Honduran court due to COVID shutdowns.
- Father obtained U.S. L‑1/L‑2 visas (child as dependent) and took steps toward U.S. immigration processes for the child; Father contends parents agreed the child would live with him in the U.S.; Mother denies consenting to a permanent relocation and instead alleges the child would be returned to her (in Spain or Honduras).
- Mother signed a Honduran travel authorization in Aug 2020 (no return date); extensive messaging and email record shows Mother repeatedly demanded a return date and objected to permanent retention; Father and Brooks moved with child through Jamaica to the U.S., then to Savannah, GA.
- Bench trial credibility findings: Court found Mother more credible than Father and Brooks, credited documentary record and communications showing Mother repeatedly sought return and that Father failed to communicate any mutual agreement to permanent relocation.
- Court ordered return of the child to Honduras, denied respondents’ defenses (consent/acquiescence and grave‑risk) and retained jurisdiction to set logistics and consider attorney’s fees and costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ms. Brooks may remain a respondent | Brooks participated in and facilitated the retention; may be liable and can aid return | Brooks lacked custody/guardian rights and thus should be dismissed | Denied dismissal; nonparents who aid retention may be proper respondents |
| Habitual residence of the child | Honduras was the child's habitual residence at removal; parents never agreed to abandon it | Father contends habitual residence shifted (U.S. or Spain) based on plans/immigration steps | Honduras is the child's habitual residence; no shared settled intent to change residence |
| Consent/acquiescence to removal/retention | Mother never consented to permanent relocation; travel auth and communications show she expected return | Father argues Mother consented (travel authorization, immigration steps, emails) | Father failed to prove consent/acquiescence by preponderance; travel authorization without return date not dispositive |
| Grave‑risk exception under Article 13(b) | No clear and convincing evidence mother would pose grave physical/psychological harm or that return would be intolerable | Father asserts mother's mental health, past violence, and general danger in Honduras create grave risk | Grave‑risk exception not proven by clear and convincing evidence; generalized country danger and past incidents insufficient |
Key Cases Cited
- Lozano v. Montoya Alvarez, 572 U.S. 1 (Sup. Ct.) (purpose of Hague Convention: return child to habitual residence for custody adjudication)
- Abbott v. Abbott, 560 U.S. 1 (Sup. Ct.) (habitual residence and Convention purposes)
- Monasky v. Taglieri, 140 S. Ct. 719 (Sup. Ct.) (habitual residence depends on totality of circumstances; parental intentions relevant)
- Ruiz v. Tenorio, 392 F.3d 1247 (11th Cir.) (abandonment/change of habitual residence requires clear objective facts or settled parental intent)
- Chafin v. Chafin, 742 F.3d 934 (11th Cir.) (child's attachments and objective facts govern habitual‑residence change)
- Berenguela‑Alvarado v. Castanos, 950 F.3d 1352 (11th Cir.) (plaintiff must prove wrongful removal/retention by preponderance; consent defense burdens)
- Lops v. Lops, 140 F.3d 927 (11th Cir.) (removal/retention wrongful if it breaches custody rights under home law)
- Gomez v. Fuenmayor, 812 F.3d 1005 (11th Cir.) (grave‑risk exception must be shown by clear and convincing evidence)
- Baxter v. Baxter, 423 F.3d 363 (3d Cir.) (authorization to travel alone is not dispositive of consent to permanent removal)