Rodrigo Andres Alvarez Romero v. Maria Eugenia Gajardo Bahamonde
21-10378
11th Cir.May 25, 2021Background
- Father (Alvarez Romero) took two daughters (ABB, b.2006; PDCB, b.2013) from Chile to the U.S. in Dec 2017 with mother's consent for a visit; he later kept them and took their passports to Chile.
- Mother (Gajardo Bahamonde) moved to the U.S. to be with the children; she later left the father after alleged long‑standing physical and verbal abuse the children witnessed; the children received court‑mandated mental‑health treatment in Chile.
- ABB (age 14 at hearing) testified in camera and described firsthand witnessing multiple incidents of abuse and explained her objection to returning to Chile.
- Alvarez Romero filed an ICARA petition in June 2020 (over one year after retention). District court held a two‑day evidentiary hearing and denied the petition, finding ABB mature and objecting, both children well‑settled in the U.S., and return would pose a grave risk of harm.
- Alvarez Romero also sought transcripts from an ex parte hearing (motion to withdraw counsel); the district court denied access and the appeal court affirmed.
Issues
| Issue | Plaintiff's Argument (Alvarez Romero) | Defendant's Argument (Gajardo Bahamonde) | Held |
|---|---|---|---|
| Scope of in‑camera child interview | ABB could only be asked about her objection (mature‑child issue); substantive testimony on abuse was improper without cross‑examination | Court may consider child testimony on any issue relevant to Hague defenses (including grave risk); parties had opportunity to submit questions and follow‑ups | Court properly considered ABB's in‑camera testimony on substantive matters related to grave risk and maturity |
| Credibility of ABB | ABB’s testimony was inconsistent and should not be credited | ABB’s testimony corroborated by mother, half‑brother, therapy and school records | District court’s credibility determinations were not clearly erroneous; ABB credited |
| Mature‑child exception (ABB) | ABB only expressed a preference, possibly influenced by mother | ABB was old enough, gave detailed, particularized objections based on firsthand abuse; not shown to be unduly influenced | Exception applies: ABB’s objections entitled to weight; she is mature enough to object |
| Well‑settled defense (petition filed >1 year) | Mother concealed children’s location so defense should not be considered | Mother did not actively conceal; children established stable life in U.S.; concealment (even if present) does not bar defense under Lozano | Court correctly considered and applied the well‑settled defense; children found well‑settled |
| Grave risk of harm if returned | Father denied abuse; domestic petitions dismissed or recanted, so no grave risk | Years of physical/verbal abuse, children witnessed violence and received treatment; home in Chile was unstable and dangerous | Clear and convincing evidence supported finding of grave risk; return would expose children to harm; independently sufficient to deny return |
| Denial of transcript for ex parte hearing | Transcript necessary to test relevance of court’s parenthetical remarks | Ex parte dealt with counsel withdrawal; remarks were not outcome‑determinative and denial was harmless because grave‑risk finding independently dispositive | Denial of transcript was not an abuse of discretion; appeal affirmed |
Key Cases Cited
- Berenguela‑Alvarado v. Castanos, 950 F.3d 1352 (11th Cir.) (standard of review for Hague Convention appeals)
- Direct Niche, LLC v. Via Varejo S/A, 898 F.3d 1144 (11th Cir. 2018) (clear‑error rule for factual findings)
- Blondin v. Dubois, 238 F.3d 153 (2d Cir. 2001) (child testimony may be considered when germane to grave‑risk inquiry)
- Lozano v. Montoya Alvarez, 572 U.S. 1 (2014) (concealment does not bar well‑settled defense or equitably toll the one‑year rule)
- Fernandez v. Bailey, 909 F.3d 353 (11th Cir. 2018) (definition and review standard for well‑settled defense)
- Gomez v. Fuenmayor, 812 F.3d 1005 (11th Cir. 2016) (threats/violence directed at a parent can create grave risk to a child)
- Karkkainen v. Kovalchuk, 445 F.3d 280 (3d Cir. 2006) (use of child testimony to determine habitual residence and related Hague issues)