Case Update (16 June 2026): Escalante-Martinez v. Vigare; Mother’s Potential Move to Spain from Costa Rica while child was in USA did not change the child’s habitual residence at the time of retention
The parties are unmarried parents to one son, born in November 2018 in Costa Rica. Petitioner, Mother, is Costa Rican. Respondent, Father, is American, residing in Illinois. During the child’s minority, he traveled routinely to Illinois to spend time with his Father, even after the parties ended their relationship. In or around March 2022, however, the parties relationship got tense after some parenting disputes and strife over the Father’s new girlfriend (now his Wife). Around this time, the Mother requested child support, and there was correspondence about getting lawyers involved. The Mother was pregnant with her second child, advised the Father that she would be giving birth in Spain, and the parties discussed their common child spending time in Illinois with the Father during her pregnancy. They had some exchanges about the length of that trip. On February 9, 2023, the parties met in Panama and exchanged their son. Ultimately the court, based on the various WhatsApp messages, concluded the agreement was for the child to be in Illinois for four months. There was no return ticket, and the parties dispute their agreement as to the length of his trip. While the child was in Illinois, the parties continued exchanges over WhatsApp. There appears to have been agreement to extend the time in Illinois to mid July 2023 (an extra month). In late May, the Mother sent a message indicating she was going to remain in Barcelona to live, not just to give birth to the baby. On July 15, 2023, the date when the Mother anticipated the Father would be returning the child to her, in Spain, the Father sent her a message indicating the child would be remaining in the USA indefinitely, and he felt it would be fraudulent for him to “go before Spanish Immigration to mislead Customs…” The Mother gave birth to a daughter in Spain in July 2023, and returned to Costa Rica on August 24, 2023. She filed her petition to seek the child’s return to Costa Rica on June 14, 2024. The court concluded that the child’s retention in the USA commenced on July 15, 2023 - the date on which the parents seemingly agreed the child would be returned to the Mother, or at least the date on which the Mother expected the child back, and when the Father unequivocally stated the child would remain in Illinois indefinitely.
The Court concluded that Costa Rica was the child’s habitual residence as of July 15, 2023, and opined that the time after July 15, 2023 to the present cannot be used to argue that the child’s habitual residence shifted to the USA. The court was also not persuaded that the Mother’s location in Spain and her decision to relocate there if the child were returned to her there, shifted the child’s habitual residence away from Costa Rica. The court was not persuaded by the Father’s argument that the child was now settled (dismissing the Father’s argument that the date of retention was earlier than July 15, 2023) or that the Mother acquiesced.
The Court therefore ordered the minor child returned to Costa Rica.
