Rodrigo Delgado v. Mariana Luis Osuna
2016 U.S. App. LEXIS 17119
| 5th Cir. | 2016Background
- Father (Dr. Delgado) filed a Hague Convention petition (May 2015) seeking return of two young sons who traveled with mother (Osuna) from Venezuela to the U.S. in May 2014.
- Family left Venezuela amid violence and threats; mother and children arrived in Texas and enrolled the older child in school; mother applied for asylum for herself and the children.
- Parties discussed multiple relocation options (U.S., Spain, etc.); father returned to Venezuela after the trip and later filed for divorce in January 2015.
- Mother traveled to the U.S. with children’s vital documents and valuables; father signed a power of attorney for child-care decisions and provided financial support for several months.
- District court found Venezuela had been abandoned as the children’s habitual residence based on the parents’ last shared intent and denied the Hague petition; the court alternatively relied on the consent exception but the appellate court affirmed based on habitual-residence ruling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether children’s habitual residence at time of removal was Venezuela | Delgado: parents did not share intent to abandon Venezuela; move was temporary/contingent | Osuna: parents formed a last shared intent to abandon Venezuela permanently (seek asylum/relocate) | Court: Habitual residence was abandoned; shared intent to abandon Venezuela is supported by record |
| Standard for determining habitual residence | Delgado: district court applied erroneous or too broad standard; required agreement on specific new country | Osuna: shared intent to abandon prior residence suffices; need not agree on a single new country | Court: Applied correct Fifth Circuit standard (focus on parents’ shared intent); no error |
| Whether factual findings (e.g., asylum plans, trip duration) were clearly erroneous | Delgado: findings that family intended permanent abandonment and sought asylum unsupported | Osuna: evidence (documents, asylum filings, school enrollment, meeting with asylum adviser, travel with documents) supports findings | Court: Most factual findings plausible; one finding (no evidence trip expected to be temporary) was erroneous but harmless |
| Whether petition nonetheless fails even if habitual residence uncertain | Delgado: urges return as wrongful removal | Osuna: contested wrongful removal because Venezuela was abandoned | Court: Petition fails because petitioner did not prove wrongful removal — habitual residence was abandoned; alternate defenses not reached |
Key Cases Cited
- Larbie v. Larbie, 690 F.3d 295 (5th Cir. 2012) (habitual-residence inquiry is fact-intensive and gives weight to parents’ shared intent)
- Berezowsky v. Ojeda, 765 F.3d 456 (5th Cir. 2014) (shared-intent determination treated as factual and reviewed for clear error; rejects novel theories of shared intent absent a meeting of minds)