Petitioner-Appellant Francelly Sánchez-Londoño (the “mother”) appeals from the district court’s denial of her petition filed pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89 (the “Hague Convention”), as implemented by the International Child Abduction Remedies Act, 42 U.S.C. § 11601 et seq. (“ICARA”). The mother claims that RespondenL-Appellee Nelson González (the “father”) has wrongfully retained their daughter, E.G., in the United States. She seeks an order requiring the child’s return to Colombia, where E.G. lived with her mother for two-and-a-half years. The district court found that no wrongful retention of E.G. occurred under the Hague Convention because the United States was E.G.’s place of habitual
I. Background
A. Factual background
The mother is a citizen of Colombia who, in 2004, entered the United States illegally. The father came to the United States from the Dominican Republic and became a naturalized U.S. citizen in April 2000. The two met while working at a home for the elderly in Massachusetts, and they married on December 20, 2005.
In October 2006, the couple’s daughter, E.G., was born in Massachusetts. E.G. is a citizen of both the United States and Colombia. After E.G. was born, the family lived together in Framingham, Massachusetts, for more than two years, but not without incident. By the second year of their marriage, the parents began having frequent arguments. In addition, the mother was stopped for a traffic violation in 2008, prompting concerns that she would be identified as an illegal immigrant and deported. The couple thus agreed that the mother temporarily would move back to Colombia. From there, they believed she would have a better chance of obtaining legal residency in the United States. The mother also looked forward to reuniting with her older daughter, C.A., from a prior relationship. The parents agreed that the mother would take E.G. back to Colombia with her, and that the mother, E.G., and C.A. would all move to the United States once the mother obtained legal status. The mother and E.G., who was two years old at the time, moved to Colombia on December 7, 2008.
Both parents hoped that the time in Colombia would be brief — lasting approximately seven to nine months — and that mother and daughter would be able to return legally to the United States in short order. Those hopes were not realized, however, and what was intended to be a short stay in Colombia turned into a stay of two-and-a-half years. During that time, E.G. lived with her mother and grandmother, and she spent time with relatives, friends, classmates, and members of her church. She spoke Spanish and attended preschool in Colombia. The mother also registered E.G. as a Colombian citizen so that E.G. would have full rights and would be able to leave Colombia without any problems.
While the mother and E.G. were living in Colombia, the father visited once, for five days, in 2010. He never asked that E.G. be sent to the United States to see him, but he did speak with her several times a day via telephone and computer throughout the time they were apart. The father also worked on petitions seeking permission for the mother and C.A. to enter the United States legally. He filed a petition for the mother in January 2009 and for C.A. in December 2009.
Although C.A.’s petition was granted on December 30, 2010, the mother’s petition was denied because she had previously entered the United States illegally and therefore was excluded from reentering for ten years. She applied for a waiver of the exclusion, but on March 24, 2011, her application was denied. The mother appealed the denial of waiver on April 27, 2011.
Meanwhile, time was running short for C.A. to travel to the United States, as her entry visa was set to expire on June 29, 2011. Believing that the father would take good care of both girls and that it would improve her chances of obtaining a waiver if both of her daughters were living in the United States, the mother agreed to let both C.A. and E.G. move to the United States. The father returned to Colombia to pick up the girls, and he flew with them
Unbeknownst to the mother, however, the father had begun a romantic relationship with another woman, Erin McShane (“McShane”), in 2010. Despite this relationship, and notwithstanding the fact that the immigration attorney he consulted provided no timeline for the granting of the mother’s petition, the father repeatedly told the mother that he expected her to return to the United States within a matter of months.
When the father and girls arrived in the United States in May 2011, they lived in the father’s residence in Framingham, Massachusetts. During the day while the father was at work, the girls video confer-enced with their mother and were sometimes cared for by family friends from church. They were also introduced to K.G., the father’s seventeen-year-old daughter from a previous marriage, and to McShane, whom they were told they should not mention to their mother. Despite this instruction, by August or September 2011, the mother began to suspect that the father was having an affair. E.G. began attending daycare around this time, and the mother periodically called the daycare to speak with E.G.’s teachers.
In December 2011, the father informed the mother that he would be sending C.A. back to Colombia.
According to the mother, the father cut off all communication between her and E.G. from December 2011 until October 2013. He obtained a new phone number in February 2012, filed for divorce on April 4, 2012, and in May of 2012, he moved from Framingham to Quincy, Massachusetts, with E.G. and McShane. The father did not inform the mother of the move or of their new address, thereby interfering with her ability to communicate with her daughter. When E.G. began kindergarten at a school in Quincy in the fall of 2012, the father did not give the school the mother’s contact information.
On November 21, 2012, the Middlesex Probate and Family Court granted the father’s uncontested petition for divorce, giving him sole legal and physical custody of E.G. The mother asserts that she did not contest the divorce because she had no opportunity to do so. The father married McShane after the divorce, and on January 2, 2013, the pair wrote an e-mail to the United States Citizenship and Immigration Services (“USCIS”) asking that the mother’s immigrant visa petition be terminated. The e-mail explained that the parents had divorced and that the father no longer supported the mother’s request.
B. Procedural background
In February 2012, the mother contacted the Colombia Institute of Family Welfare (“ICBF”), Interpol, the Colombian police, her town mayor, and the media in an effort to secure E.G.’s return. On March 7, 2012, she filed a formal statement with
On November 18, 2013, after a four-day hearing, the district court denied the mother’s petition for E.G.’s return. The court found that the date of E.G.’s retention was December 2011, when the mother demanded E.G.’s return to Colombia and the father refused. The district court also found that immediately prior to December 2011, the shared intent and settled purpose of both parties was that E.G. live in the United States, as neither parent had intended that E.G. abandon her habitual residence there. While the court found that E.G. had been acclimatized to Colombia by the time that she left in May 2011, it also found that at the time of her retention in December 2011, E.G. was acclimatized to the United States. Thus, the district court concluded that E.G.’s habitual residence was the United States at the time of her retention, and that her retention was not wrongful under the Hague Convention. This timely appeal followed.
II. Analysis
The crux of the mother’s argument on appeal is that the district court erred in determining that E.G.’s place of habitual residence immediately prior to her retention was the United States and not Colombia. Specifically, she contends that the district court gave too little weight to evidence of E.G.’s acclimatization in Colombia and too much weight to evidence that the mother hoped she could one day live with E.G. in the United States.
Our review of the district court’s factual findings is deferential, and we will overturn a factual finding only if it “ ‘hit[s] us as more than probably wrong — it must prompt a strong, unyielding belief, based on the whole of the record, that the judge made a mistake.’ ” Darín v. Olivero-Huffman,
A. The Hague Convention
The Hague Convention, as implemented by ICARA, provides for “the prompt return of children wrongfully removed to or retained in any Contracting State.” Hague Convention, art. 1; see also Abbott v. Abbott,
If a petitioner meets his or her burden of establishing that a child has been wrongfully retained as described in Article 3, and “a period of less than one year has elapsed from the date of the wrongful ... retention” to the commencement of judicial or administrative proceedings, the court “shall order the return of the child forthwith,” Hague Convention, art. 12, unless the respondent can establish that an enumerated exception applies, see id. art. 13. If more than a year has elapsed, the court must still “order the return of the child, unless it is demonstrated that the child is now settled in its new environment.” Id. art. 12.
In this case, the only factor in dispute is the first factor: whether Colombia was E.G.’s habitual residence immediately prior to her retention in the United States in December 2011.
B. The parents’ shared intent or settled purpose
We begin our analysis with the critical issue of shared intent. Because young children like E.G. “lack[ ] both the material and psychological means to decide where [they] will reside,” our inquiry focuses on the shared intent or settled purpose of the parents, who are entitled to determine the child’s place of habitual residence. Darín,
Additionally, we must take care to distinguish “between the abandonment of a prior habitual residence and the acquisition of a new one.” Id. at *4,
In this case, the district court noted the parties’ disagreement as to the existence of a shared intent or settled purpose regarding E.G.’s habitual residence prior to her retention in December 2011. On the one hand, the mother claimed that it was her intention that E.G. be with her wherever she lived, while on the other, the
The mother takes issue with this finding of shared intent for a number of reasons. She first argues that the district court erred in determining that the parties did not intend to abandon their habitual residence in the United States. While acknowledging that both parents initially intended that E.G.’s stay in Colombia be temporary, the mother points out that the requisite shared intent or settled purpose to abandon habitual residence in the United States need not have existed at the time of departure, “as it could develop during the course of a stay originally intended to be temporary.” Ruiz v. Tenorio,
The mother is certainly correct that the parents need not have intended that E.G. habitually reside in Colombia at the time they departed the United States, but this does her no favors. Even if the mother changed her mind about the nature of E.G.’s time in Colombia at some point while they lived there, “[o]ne parent’s wishes are not sufficient, by themselves, to effect a change in a child’s habitual residence.” Darín,
The mother next argues that the district court confused her future hope that the family would live together in the United States with a present, shared intention that E.G. live in the United States regardless of whether her mother could follow. She claims that although the district court cited Mota, it erred by failing to appreciate that Mota’s analysis of conditional intent applied. We disagree.
In Mota, the Second Circuit held that the district court’s finding — that the mother intended for her daughter to live in the United States only if the mother were able to join her — was not clearly erroneous.
By way of rejoinder, the mother asserts that any intent she may have had that E.G. habitually reside in the United States was undermined by the father’s deceit. She points to both the father’s misrepresentation that it would only take three months to obtain legal entry into the Unit
A careful review of the record reveals that the district court’s finding is not clearly erroneous. The mother testified under oath that she would still move to the United States to be with E.G. if allowed entry, and she did not request that the father return E.G. to Colombia until December 2011. By that time, nearly seven months had passed without any change in the mother’s immigration status, and roughly four months had passed since she first suspected that her husband was engaged in an extramarital affair. Neither realization prompted her to request E.G.’s return prior to the father’s announcement that he was sending back C.A. in December 2011.
In the absence of clear error, we must defer to a district court’s finding of intent, meaning that the “district court’s plausible interpretation of the facts cannot be rejected just because the record might sustain a conflicting interpretation.” Darín,
C. Acclimatization
In addition to shared parental intent, factors evidencing a child’s acclimatization to a given place — like a change in geography combined with the passage of an appreciable period of time — may influence our habitual-residence analysis. Typically, “[e]vidence of acclimatization is not enough to establish a child’s habitual residence in a new country when contrary parental intent exists.” Id. at 12. Nevertheless, it may be possible for a child to obtain a new habitual residence without such shared intent in certain limited circumstances. “ ‘[A] child can lose its habitual attachment to a place even without a parent’s consent if the objective facts point unequivocally to a person’s ordinary or habitual residence being in a particular place.’ ” Id. at 11-12 (quoting Mozes v. Mozes,
In this case, the district court recognized that after more than two years in Colombia, E.G. had acclimatized to that country by the time she left it in May 2011. Noting that the date of retention was December 2011, however, the district court concluded that by that time, E.G. was once again acclimatized to the United States. E.G. had spent time with her father and half-sisters in Massachusetts, she went on trips to the park and to the swim
The mother cites these findings as proof of error, arguing that given the evidence of E.G.’s acclimatization, the district court should have found that Colombia became E.G.’s place of habitual residence. Such a finding was critical, she adds, because “in the absence of settled parental intent, courts should be slow to infer ... that an earlier habitual residence has been abandoned,” Mozes,
This argument not only misses the mark, it actually cuts against the mother’s position. True, a district court should be “slow to infer” that an earlier habitual residence has been abandoned in favor of a new one, in the absence of shared parental intent. But that is precisely the approach taken by the district court in this case. In the absence of shared parental intent to abandon habitual residence in the United States, the district court was — quite correctly — slow to infer that E.G.’s earlier habitual residence in the United States had been abandoned.
In sum, the district court found, and the record supports, that then-five-year-old E.G. had acclimatized to life in the United States by December 2011. This fact, coupled with the finding of shared parental intent that E.G. live permanently in the United States, shows that E.G.’s habitual residence immediately prior to her retention was the United States. Accordingly, E.G.’s retention in her place of habitual residence was not wrongful under the Hague Convention, and the district court properly denied the mother’s petition for the return of E.G. to Colombia.
III. Conclusion
For the foregoing reasons, we hold that the district court did not err in determining that E.G.’s habitual residence was the United States and that no wrongful retention occurred. We therefore affirm the district court’s denial of the mother’s petition.
To be clear, the denial of the mother’s petition in no way alters the preexisting custody rights of the parents. See Hague Convention, art. 19 (“A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.”). Rather, the decision of the district court that we today affirm merely ensures that the courts of E.G.’s place of habitual resi
AFFIRMED.
Notes
. According to the father, he sent C.A. back because C.A.’s father, who lived in Spain, was pressuring him to do so. According to the mother, the father sent C.A. back to Colombia only because he found caring for her inconvenient. This dispute is not material to the issues before us, and we need not choose between these conflicting accounts.
. Nevertheless, the mother received a letter from USCIS on January 10, 2013, saying that it would act favorably on her waiver application.
. On appeal, the parties do not dispute the date of retention.
. Having determined that the United States was E.G.'s habitual residence such that no wrongful retention occurred, we need go no further. See Redmond v. Redmond,