22 F. Supp. 3d 219
S.D.N.Y.2014Background
- Child LAH (born 2005) lived in Dominican Republic, then Spain with mother (Petitioner Herrera Taveras) and periodically with father (Respondent Jose Alonzo Morales); parties executed multiple custody/POA-type documents in 2008–2012.
- In July 2012, with Petitioner’s permission, LAH traveled from the Dominican Republic to the U.S. (accompanied by Respondent’s mother) to pursue U.S. permanent residency; LAH obtained a residence card soon after arrival.
- Petitioner contends she only consented to a temporary visit (her accounts variously say “end of summer 2012” or “maximum six months”); Respondent contends Petitioner consented to the move to obtain residency and that he informed her soon after LAH received residency.
- Petitioner filed a Hague Convention petition in federal court on October 31, 2013 seeking LAH’s return to Spain; the parties litigated whether removal/retention was wrongful and whether any affirmative defenses applied.
- After a five-day evidentiary hearing (including an in-chambers interview of LAH), the court found Petitioner established a prima facie case (habitual residence Spain) but concluded Respondent proved the Article 12 “now settled” defense because LAH had strong, stable ties to New York and the retention became wrongful before October 31, 2012.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Child's habitual residence and prima facie showing | Herrera: Spain is LAH’s habitual residence and removal/retention was wrongful | Morales: sending child for U.S. residency showed intent to reside in U.S. | Court: Parents’ shared intent favored Spain; prima facie case established for return to habitual residence (Spain). |
| When retention became "wrongful" (start of Article 12 one-year clock) | Herrera: either end of summer 2012 or six-month limit (disputed); she rescinded consent by end of summer 2012 | Morales: he informed Herrera soon after residency was granted; no explicit refusal to return earlier | Court: Applying Perez‑Vera framework, retention became wrongful by end of summer 2012 (before Oct. 31, 2012). |
| Availability and proof of Article 12 "now-settled" defense | Herrera: LAH not sufficiently settled; financial instability and sibling separation weigh against defense | Morales: LAH formed stable ties—same home, school, friends, therapy, legal status—so she is settled | Court: Respondent met burden; LAH is settled in U.S.; Article 12 defense available and proved. |
| Whether court should nonetheless order return despite Article 12 | Herrera: argues return may be appropriate (siblings, petitioner’s prompt action) | Morales: stresses child’s best interest and established stability in U.S. | Court: Declined to order return; child’s settled interests and wellbeing in U.S. outweighed repatriation despite Article 12 permitting discretion. |
Key Cases Cited
- Abbott v. Abbott, 560 U.S. 1 (2010) (context on Hague Convention purpose)
- Lozano v. Alvarez, 134 S. Ct. 1224 (2014) (Article 12 one‑year rule and limits on tolling; settled‑child considerations)
- Gitter v. Gitter, 396 F.3d 124 (2d Cir. 2005) (habitual residence analysis focuses on parents' shared intent)
- Mota v. Castillo, 692 F.3d 108 (2d Cir. 2012) (Convention inquiry limited to return, not merits of custody)
- Blondin v. Dubois, 238 F.3d 153 (2d Cir. 2001) (Article 12 allows discretion not to return a settled child)
- Karkkainen v. Kovalchuk, 445 F.3d 280 (3d Cir. 2006) (retention wrongful when petitioner withdraws consent or refuses extension)