ALEXIS EDELSTEIN v. TARA MICHELLE NELSON
Case No.: 2:25-cv-00003-GMN-MDC
UNITED STATES DISTRICT COURT DISTRICT OF NEVADA
May 16, 2025
Pending before the Court is the Report and Recommendation (“R&R“) by Magistrate Judge Couvillier, (ECF No. 35), recommending that Petitioner Alexis Edelstein‘s Petition, (ECF No. 1), be denied and any request for fees and costs by denied. The R&R also recommends denying as moot Respondent Tara Michelle Nelson‘s Motion to Dismiss, (ECF No. 18). Petitioner filed an Objection, (ECF No. 37), and Respondent filed a Response, (ECF No. 38). For the reasons discussed below, the Court ACCEPTS AND ADOPTS IN FULL Magistrate Judge Couvillier‘s R&R.
I. BACKGROUND
This case arises out of a dispute between Petitioner Alexis Edelstein, father of infant E.E., and Respondent Tara Michelle Nelson, E.E.‘s mother. (See generally Pet., ECF No. 1). The Court set forth the details of Petitioner‘s claim in its prior Order Denying Emergency Motion for Temporary Restraining Order, (ECF No. 15), and incorporates that background information herein.
On March 24, 2025, the parties appeared before Magistrate Judge Couvillier for a day long Evidentiary Hearing. (See Evidentiary Hr‘g Mins., ECF No. 30). Both Petitioner and Respondent called multiple witnesses and admitted many exhibits into evidence. (See id.). The parties also submitted post evidentiary hearing briefs, (ECF Nos. 33, 34). Magistrate Judge
II. LEGAL STANDARD
A party may file specific written objections to the findings and recommendations of a United States Magistrate Judge made pursuant to Local Rule IB 1-4.
III. DISCUSSION
The Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention“) is a multilateral international treaty on parental kidnapping to which the United States and Argentina are signatories. The goal of the Hague Convention is to “protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence.” Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, preamble, T.I.A.S. no. 11670 [hereinafter Hague Convention]. The objects of the Convention are: (1) “to secure the prompt return of children wrongfully removed to or retained in any Contracting State,” and (2) “to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” Hague Convention, art. 1. The Hague Convention applies where a child has been removed or retained away from his or her habitual residence in breach of the custody rights that the petitioner (parent) was exercising at the time of the wrongful removal or wrongful retention. Hague Convention, art. 3.
Petitioner does not object to Magistrate Judge Couvillier‘s determination that E.E. was not wrongfully removed from Argentina.2 (See generally Obj.). Instead, Petitioner objects to the Magistrate Judge‘s finding that E.E. was not wrongfully retained in Nevada. (See id.). The Court only addresses the portions of the R&R to which objections were made.
A. Child‘s Habitual Residence
The Court begins by discussing E.E.‘s habitual residence. If E.E.‘s habitual residence is in the United States, then there could be no wrongful retention. While an actual agreement between the parents as to where they intended to settle is not required, it is a factor, among many, that a court can consider. See Monasky v. Taglieri, 589 U.S. 68, 79-81 (2020); see also Farr v. Kendrick, 824 F. App‘x 480 (9th Cir. 2020) (upholding a district court‘s finding regarding the parents’ shared settled intent.). The Court begins by addressing whether there was an actual agreement to live in the United States before turning to other relevant factors.
1. Actual Agreement
Magistrate Judge Couvillier found that the parties agreed to reside in Nevada. (R&R 8:19). Petitioner objects to this determination, arguing that the parties never agreed to reside in Nevada and were only visiting for a set time period. (Obj. 17:3-9). The Court agrees with Magistrate Judge Couvillier that the parties agreed to reside in the United States.
Moreover, the Court agrees with Magistrate Judge Couvillier that “the parties engaged in many conversations during their time in Nevada weighing the pros and cons of leaving Argentina and residing in the United States.” (R&R 9: 15-16). The evidence shows that the parties engaged in serious conversations about staying in the United States, indicating their intention to abandon Argentina. For example, although the lease that they had on their rental in Argentina indicated that they had to give 60 days-notice to break the lease, the evidence shows that the parties had conversations with the landlord about breaking the lease with 30-days’
2. Totality of the Circumstances
Even if the parties did not agree to reside in the United States, the Court nonetheless agrees with the Magistrate Judge‘s determination that the totality of the circumstances establishes that the United States is E.E.‘s habitual residence. The United States Supreme Court expressly adopted the “totality of the circumstances” test to determine a child‘s habitual residence. See generally Monasky v. Taglieri, 589 U.S. 68 (2020). Locating a child‘s home is a fact-driven inquiry, and courts must be “sensitive to the unique circumstances of the case and informed by common sense.” Id. at 68 (quoting Redmond v. Redmond, 724 F.3d 729, 744 (7th Cir. 2013)). The intentions and circumstances of caregiving parents are relevant considerations for infant children because they depend on their parents as caregivers. Id. Importantly, however, no single fact is dispositive across all cases. Id. “Common sense suggests that some cases will be straightforward: Where a child has lived in one place with her family indefinitely, that place is likely to be her habitual residence. But suppose, for instance, that an infant lived in a country only because a caregiving parent had been coerced into remaining there. Those circumstances should figure in the calculus.” Id. at 78. Monasky made clear that “a wide range of facts other than an actual agreement, including facts indicating that the parents have made their home in a particular place, can enable a trier to determine whether an infant‘s residence in that place has the quality of being ‘habitual.‘” Id. at 81.
Magistrate Judge Couvillier determined that based on the totality of the circumstances and evidence presented, E.E.‘s habitual residence was in the United States by November 2024,
Petitioner argues that the Magistrate Judge was incorrect, relied too heavily on child custody considerations rather than Hague Convention factors, and that the Court should consider the following factors when determining E.E.‘s habitual residence: parental employment, home purchase, moving of belongings, acquisition of driver‘s license, marital instability, length of stay in the country, and the child‘s age. (See generally Obj.).
a. Employment Status
Petitioner works on American political campaigns and political marketing, which primarily emanates from Los Angeles, California. (R&R 2:14-15). He also works for a family business located in Argentina. (Id. 2:16). Respondent has worked as a stay-at-home mother since E.E. was born. (Resp. 7:5, ECF No. 38). Petitioner argues that because the parties’ employment status did not change between 2024 and 2025, this factor favors Argentina being E.E.‘s habitual residence. (Id. 7:4-12). Petitioner relies on a Third Circuit case, Feder v. Evans-Feder, to support this argument. (Id. at n.14); see 63 F.3d 217, 218-19, 224 (3d Cir. 1995). In Feder, the court found that the child‘s habitual residence was in Australia after petitioner father was terminated from his job in the United States, accepted a job in Australia,
b. Home Purchase
Next, Petitioner argues that the United States is not E.E.‘s habitual residence because the parties did not purchase a home in the United States or look for a rental property. (Obj. 7:13-8:2). Indeed, the purchase of a home can be evidence of establishing habitual residence. See e.g., Feder, 63 F.3d at 224. But here, the parties never purchased a home in Argentina when living there either. By Petitioner‘s logic, E.E.‘s habitual residence could also not be in Argentina. Because the parties never purchased a home in either country, the Court considers the circumstances of the parties’ and E.E.‘s living situation in the United States. Based on the testimonies given at the hearing, the Court finds that while the parties had not looked for a rental property while residing with Respondent‘s parents, they made efforts to make a home in Respondent‘s parents’ house by setting up a nursery area for E.E. and a home office for Petitioner to work from. For all intents and purposes, the parties created a home in the United States. Thus, the Court finds that this factor weighs in favor of the United States being E.E.‘s habitual residence.
Next, Petitioner argues that E.E.‘s habitual residence is Argentina because the parties left most of their belongings there when they traveled to the United States. (Obj. 8:3). Petitioner cites to an Eighth Circuit case, Silverman v. Silverman, 338 F.3d 886, 898 (8th Cir. 2003), to support his argument. (Id. 8:8). It is true that in Silverman, the court determined that the movement of family belongings can establish intent to move to a new habitual residence. See Silverman, 338 F.3d at 898. In that case the court explained that “[t]he [trial] court should have determined the degree of settled purpose from the children‘s perspective, including the family‘s change in geography along with their personal possessions and pets . . . .” Id. Applying that same consideration to the present case, the Court finds that while the parties kept many of their belongings in Argentina as established by testimony and photographic evidence, (Photos of Argentina Home, Ex. S to Pet., ECF No. 1-3), they still traveled with a lot of possessions, including six suitcases worth of belongings, and they shipped baby supplies to the United States to use as well. Based on “the degree of settled purpose from [E.E.‘s] perspective,” as Petitioner has asked the Court to consider, (see Obj. n.16), the Court finds that the movement of six suitcases, along with the shipment of baby supplies demonstrates an intent to move. These pieces of evidence, coupled with others discussed throughout the Order, establish that E.E. settled in the United States. Thus, this factor weighs in favor of finding that the United States was E.E.‘s habitual residence.
d. Driver‘s License
Petitioner next argues that because neither Petitioner nor Respondent obtained a new driver‘s license in 2024, the Court should consider this a neutral factor. The Court disagrees. Some courts have found that obtaining or attempting to obtain a driver‘s license or professional license in a new country is evidence of intent establish a new habitual residence. See e.g., Silvestri v. Oliva, 403 F. Supp. 2d 378, 381, 385-86 (D.N.J. 2005). But both Petitioner and
e. Marital Instability
Petitioner further contends that E.E.‘s habitual residence is Argentina because the parties’ marriage broke down in the United States. (Obj. 8:13). The Court again looks to Monasky for guidance. There, the parties moved to Italy, the marriage broke down, and then the mother fled with their child to the United States. (See generally Monasky, 589 U.S. 68). The Monasky Court considered where the marriage broke down when balancing the totality of the circumstances and ultimately concluded that the child‘s habitual residence was in Italy. Id. The facts here are very different. The parties agreed to travel to Nevada and during their stay they made a home in the United States at the same time their marriage was breaking down. (See generally R&R). This factor is a closer call because the parties were making a home in the United States while their marriage was facing instability. Accordingly, the Court finds that this is a neutral factor.
f. Length of Stay
Petitioner next avers that the Court should consider E.E.‘s length of stay in each country as a neutral factor. (Obj. 9:5). Petitioner also argues that the Magistrate Judge erred when he considered that the parties have been in Nevada for over sixth months. (Id. 5:5-9 (citing R&R 15:22)). Petitioner contends that the correct consideration is that when the Petition was filed, the parties had only been in Nevada for less than four months. (Id. 5:6-9). But the Magistrate Judge correctly considered the four-month timeline when weighing the totality of the circumstances to determine E.E.‘s habitual residence. (See R&R 10:10-12). Moreover,
g. Place of Birth and Child‘s Age
Lastly, Petitioner relies on Holder v. Holder to argue that Argentina is E.E.‘s habitual residence because he was born there. (Obj. 12:8-10); see 392 F.3d 1009, 1019 (9th Cir. 2004). Holder explained that when determining a newborns habitual residence, “[t]he place of birth is not automatically the child‘s habitual residence.” Id. at 1020. But Holder also observed that “if a child is born where the parents have their habitual residence, the child normally should be regarded as a habitual resident of that country.” Id. “Once this initial habitual residence has been established, we recognize that it is practically impossible for a newborn child, who is entirely dependent on its parents, to acclimatize independent of the immediate home environment of the parents.” Id. Thus, “the inquiry is, more generally, whether the children‘s lives have become firmly rooted in their new surroundings.” Id. at 1019. Here, after considering the testimony and evidence presented during the hearing, the Court finds that E.E.‘s life was firmly rooted in the United States because he had all of the necessary supplies for a newborn, was being primarily reared by Respondent, cared for by Respondent‘s family members, and was placed on a vaccination schedule in the United States. (See generally R&R).
When the Court applies the definition of habitual residence to the facts and considers the totality of the circumstances, it concludes, just as Magistrate Judge Couvillier did, that the United States was E.E.‘s habitual residence immediately prior to his retention in the United States and was therefore not wrongful.3 E.E. traveled with his mother and father from Argentina to the United States where he was to live for, at the very least, the foreseeable future. He stayed in the United States for 16 weeks, or 60% of his life, prior to the Petition being filed. Although the parties viewed the United States very differently, both agreed to travel to that country and be there with one another and E.E. They did what parents intending on moving do—they made a home with Respondent‘s parents by setting up a workplace for Petitioner and a nursery area for E.E., and they began setting up medical care for E.E. That Petitioner did not intend to remain in the United States permanently does not negate that the totality of the circumstance‘s points to the United States as being E.E.‘s habitual residence.
In sum, the Court concludes that E.E.‘s habitual residence is the United States. Because the Court finds that Petitioner does not meet his burden of showing that the retention was wrongful, it need not address the remaining questions articulated in Mozes.4 239 F.3d at 1070;
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IT IS HEREBY ORDERED that the R&R, (ECF No. 35), is ACCEPTED AND ADOPTED IN FULL.
IT IS FURTHER ORDERED that Petitioner Alexis Edelstein‘s Petition, (ECF No. 1), is DENIED. Any requests for attorneys’ fees and costs are also DENIED.
IT IS FURTHER ORDERED that Respondent Tara Michelle Nelson‘s Motion to Dismiss the Petition, (ECF No. 18), is DENIED as MOOT.
The Clerk of Court is kindly directed to close the case.
DATED this 16 day of May, 2025.
Gloria M. Navarro, District Judge
United States District Court