Colombian father Edison Alberto Carvajal Vasquez ("Carvajal") brought his one-year-old son, TCG, to the United States. The plan was for TCG to stay with his Colombian mother, Paola Andrea Gamba Acevedo ("Gamba"), who was attempting to immigrate to the United States from Colombia. But Gamba was detained by INS in Texas, so Carvajal instead left TCG with Gamba's sister in Tennessee and returned to his home in Colombia. Gamba was subsequently released on bond and joined TCG in Tennessee. About five months later, Carvajal visited Gamba and TCG in the United States, then returned to Colombia, again leaving TCG in the United States. Soon after, Carvajal and Gamba's relationship deteriorated. Almost a year later, Carvajal filed a petition in federal court pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, claiming that TCG had been vacationing in the United States and that Gamba had wrongfully retained him there, beyond the expiration of his tourist visa. The district court denied Carvajal's petition, finding that the United States was TCG's habitual residence and therefore that Gamba's retention of the child in the country was not wrongful. Carvajal appeals, and we AFFIRM.
I.
Carvajal and Gamba are the unmarried parents of minor child TCG. All three are Colombian citizens. TCG was born in Medellín, Colombia, on October 6, 2014. Until the summer of 2016, TCG lived with Gamba in an apartment in Colombia owned by Gamba's parents. Carvajal lived with his own parents, at least during the week, though he claims he lived with Gamba and TCG on the weekends. By the summer of 2016, Carvajal and Gamba had developed a plan for the family to travel to the United States, though the reason for that travel is
While Gamba was in immigration custody, on August 26, 2016, Carvajal continued on with the plan and flew with TCG to the home of Gamba's sister and brother-in-law, Kelly and David Chambers, in Tennessee. He then returned to Colombia two days later, leaving TCG in their care. Gamba was released on bond about a month later, on September 30, and flew to Tennessee on October 13. She and TCG would live at the Chambers' home for the next several months.
Carvajal came to Tennessee again on December 19, 2016, and stayed with Gamba and TCG at the Chambers' home for a few weeks. On December 11, shortly before Carvajal arrived, Gamba claims she received a call from a married Colombian woman named Luz Elena stating that Elena and Carvajal were in a relationship-not the first time Gamba had received evidence of such a relationship. In contrast, Elena testified that she has never been in a relationship with Carvajal and claimed that romantic emails between the two were planted by Gamba. When Carvajal arrived in December, he and Gamba reconciled, and Carvajal proposed marriage, which Gamba accepted. Carvajal left Tennessee on January 9, 2017, and, when he arrived in Colombia, he gave away Gamba and TCG's possessions, according to Gamba and her mother. Carvajal claims that TCG's toys are still stored at his house.
After several months in Tennessee, Gamba traveled with TCG to Houston, Texas, for a February 2 immigration hearing. They stayed in Houston for about five months, first because Gamba's court date was rescheduled and then so Gamba could work a new job. TCG's tourist visa expired sometime in February. Also during February, Gamba broke off her engagement with Carvajal, apparently because she was again contacted by Luz Elena. According to the district court, on February 24, 2017, Carvajal filed a criminal complaint in Colombia against Gamba for the crime of arbitrary exercise of custody of an underage child. Gamba and TCG returned to Tennessee at the beginning of July, where they rejoined the Chambers' household. Gamba filed an application for asylum for herself and TCG in the spring of 2018. Her case is set to be heard in January 2021.
Carvajal filed a petition under the Hague Convention in Tennessee on February
The district court denied Carvajal's petition, finding that TCG had not been wrongfully retained in the United States in February 2017; rather, the court determined that the United States was TCG's habitual residence on that date because the last shared intent of Carvajal and Gamba was that TCG live in the United States. In the alternative, the court concluded that the United States was TCG's habitual residence because TCG had acclimatized to the country. Carvajal appeals, claiming that the district court erred in relying on the parental-intent standard and erred in its conclusions under both the parental-intent and acclimatization standards.
II.
The purpose of the Hague Convention is to prevent parents from gaining custody of children "by virtue of their wrongful removal or retention."
Under Article 3 of the Convention, removal or retention is wrongful if:
(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention.
Hague Convention, Article 3; Robert v. Tesson ,
The date of retention is easily disposed of in this appeal. The district court determined that the date of retention was February 24, 2017, which is when Carvajal filed a criminal complaint with Colombian authorities. Neither party challenges this date on appeal, so we adopt it as well.
The crux of the case is determining TCG's habitual residence immediately prior to February 24, 2017. We use two standards to determine habitual residence. "The primary approach looks to the place in which the child has become 'acclimatized.' " Taglieri v. Monasky ,
In this case, the district court determined that the parental-intent standard was more appropriate for TCG's case, because TCG was only two years and four months old on the date of the allegedly wrongful retention. The court then concluded that TCG's habitual residence was the United States, based on Carvajal and Gamba's last shared intent. In the alternative, the district court also applied the acclimatization standard and likewise found that TCG's habitual residence was the United States because the child had acclimatized to his residence here. Carvajal challenges the district court's use of the parental-intent standard and the district court's findings under both the parental-intent and acclimatization standards.
III.
The first issue is whether the district court erred in choosing the parental-intent standard over the acclimatization standard.
A. Standard of Review
The standard of review to apply to the district court's choice of habitual-residence standard appears to be unsettled under our precedent. In Ahmed , the first case in which our circuit recognized the parental-intent standard, we held that review of the district court's choice should be de novo. Id. at 686.
B. Choosing a Habitual-Residence Standard
Under Ahmed , "it is appropriate to consider the shared parental intent of the
Between those ages, however, lies the gray area of a child's toddler years, during which time a child at some point develops sufficient cognizance to acclimatize to a country. Faced with such a case, a court must determine whether the evidence shows that a child is cognizant enough to acclimatize, which is most naturally proved by evidence that a child was actually acclimatizing, whether to the child's current residence or to any past residences. Under our precedent, factors that tend to show acclimatization to a country include participation in academic activities, social engagements, and sports programs; appropriate fluency in the local language; and the formation of "meaningful connections with the people and places" of the country. See Robert ,
C. Reviewing the District Court's Determination
In this case, although the district court made findings under both the acclimatization and parental-intent standards, it indicated that the parental-intent standard was more appropriate for TCG's case. Carvajal argues that the district court erred in primarily relying on the parental-intent standard. Whether reviewing the district court's choice de novo or with deference, we find that the district court did not err.
In making its decision that the acclimatization standard was "of limited utility" in
The record supports the district court's determination that the parental-intent standard is more appropriate in TCG's case. Gamba's brother-in-law David testified that TCG would not be old enough to attend the "head start program" in their local Tennessee school district until the fall of 2018, about a year and a half after the date of the allegedly wrongful retention. Gamba's sister Kelly Chambers testified that TCG did not begin to say words until December 2016, just two months before the date of retention. Facts like these show that it was not unreasonable to find that TCG's youth and corresponding cognitive limitations would prevent him from systematically forming " 'meaningful connections with the people and places' in a country." Ahmed ,
Carvajal argues that TCG's attendance at school and swimming lessons in Colombia prove that "academic activities" and "sports programs" were not beyond TCG's capabilities. These activities may indeed be relevant to whether TCG was cognizant enough to acclimatize, at least because they show that TCG was old enough to attend certain activities during which he might form meaningful connections, but attendance alone is weak evidence of such a young child's ability to acclimatize. Academic activities are "central" to a child's life, even at a preschool level, not just because they consistently occur in the same place but because they provide an environment for the child to learn language and other skills and to make friends. C.f. Jenkins ,
IV.
After deciding that the parental-intent standard was the more appropriate choice in TCG's case, the district court found that the last shared intent of Carvajal and Gamba was that TCG live in the United States. Carvajal also challenges this finding on appeal.
A. Standard of Review
The standard of review for the district court's determination of habitual residence under either the parental-intent standard or the acclimatization standard is unambiguous: the court's findings are reviewed for clear error. Taglieri ,
B. Relevant Precedent
The parental-intent standard was first recognized by the Sixth Circuit in Ahmed in 2017. In defining the standard, Ahmed was able to draw upon cases from our sister circuits, which have a longer history of applying this standard. See Ahmed ,
C. Application
Under the parental-intent standard, Carvajal bore the burden of proving,
The district court's conclusions are not clearly erroneous. Gamba testified that she planned to stay in the United States permanently. Gamba's desire to move to the United States, whether legally or illegally, is evidenced by her multiple unsuccessful visa applications and ultimate plan to cross the border covertly. Importantly, Carvajal knew about that desire when he brought TCG to the United Sates and left him in Tennessee. Carvajal almost certainly financed Gamba's trip by paying "coyotes" to smuggle her across the Mexican border. Carvajal's aunt, Diana Vasquez, testified that Gamba had long been "bedazzled" by the idea of living in the United States, so Gamba's desire was clear to those around her. Even after Carvajal proposed marriage in December, he testified that Gamba told him she still wanted to remain in the country. Finally, when Carvajal testified that he thought TCG would be returning to Colombia in February 2017, he claimed that it was Gamba's sister Kelly, and not Gamba herself, who would accompany TCG. Yet despite knowing Gamba intended to remain in the United States with TCG, Carvajal twice left TCG in the United States-first in August 2016 with Gamba's sister, then in January 2017 with Gamba.
As for Carvajal's alleged plans to bring TCG back to Colombia in January or for Kelly to bring TCG back in February before the expiration of his visa, the district court concluded that there was no evidence to support the existence of either plan. It is true that TCG's visa expired in 2017, which provides some support for Carvajal's testimony. But as the district court noted, TCG had never lived with Carvajal, even during the weeks Gamba was traveling to the United States, and Carvajal offered no evidence to show he was preparing to be TCG's caretaker-for the first time ever-in Colombia. Furthermore, when Carvajal traveled to the United States in December 2016, he bought a return ticket for himself but no ticket for TCG. Finally, Kelly flatly denied ever agreeing to fly TCG back to Colombia.
Viewing the record as a whole, as we must, it is clear from Carvajal's actions that he acquiesced in Gamba's plans for TCG to grow up in the United States. In sum, we do not find clear error in the district court's determination that Carvajal
V.
Although the district court concluded that the parental-intent standard was the more appropriate approach given TCG's youth and ability to acclimatize, the court also applied the acclimatization standard in the alternative and found that TCG had acclimatized to the United States, such that the United States was his habitual residence on the date of the allegedly wrongful retention. Carvajal, who argues that the acclimatization standard was indeed the appropriate standard in TCG's case, claims that the district court erred in its findings under this standard. Because we agree that the parental-intent standard was the more appropriate standard for TCG's case, and because the district court's findings under that standard were not clearly erroneous, we need not address the district court's alternative findings under the acclimatization standard.
VI.
The district court's denial of Carvajal's petition is AFFIRMED.
Notes
This information is derived from documents that Gamba filed with the court as part of a motion to take judicial notice. We may take notice of documents offered to show the existence of judicial proceedings and not to prove the truth of any matters asserted in those proceedings. Liberty Mut. Ins. Co. v. Rotches Pork Packers, Inc. ,
Ahmed cited Robert ,
Flores-Aldape predated Ahmed by a year and anticipated Ahmed 's sanctioning of the parental-intent standard for especially young children.
Carvajal also argues on appeal that the plan for TCG to live in the United States was conditioned on Carvajal, Gamba, and TCG applying for asylum in the United States as an intact family and that the breakdown of Carvajal and Gamba's relationship voided any shared intent the couple once maintained. We need not decide whether conditional intent has any place in the habitual-residence inquiry because, as the district court concluded, the record shows that Carvajal's intent was that TCG live with Gamba in the United States "regardless of whether [Carvajal] himself intended to stay." R. 38, PID 825.