Case Update (2 February 2023): Argueta v. Argueta-Ugalde; a child moved frequently was found to be habitually resident in Brazil, which was the “only constant” in the child’s life

The parties are the biological parents of one child, born in August 2018.  The Petitioner Mother also had two older children (not part of this case).  The parents met and married in Brazil.  The Respondent Father was on a temporary contract and was going to be moving for similar temporary contracts for several years.  Mother stated that she was agreeable to those temporary moves, with the intention that, after 4 years of moves, the family would resettle permanently in Brazil.  In that vein, they bought a family home, which they kept even during their moves.  Father argued that the family’s intention was always to relocate to the United States after the temporary contracts.  During the salient years, the parties went back and forth between Brazil and China.  Each time they returned to Brazil, but the reasons they returned seemed to differ based on which parent you asked.  In November 2021, the parties reunited in Mexico, which Mother claims was to be a trip to visit family, and that they were then planning on living in the United States for one year.  The visa process was taking a long time, and so they remained in Mexico longer. On July 31, 2022, the parties and children departed for the United States. Mother believed that the family would then return to Brazil in January 2023.  The two oldest children’s father testified that it was also his understanding that the children would be returning in January 2023.  On November 3, 2022, Father served Mother with Michigan divorce papers, where he sought sole legal and physical custody of the youngest child.   On November 6, 2022, Mother flew back to Brazil alone, when Father refused to turn over the children’s passports. She then requested, by text, that the children be returned to Brazil by November 20, 2022.  She filed this Hague Abduction Convention matter in the U.S. on December 1, 2022.

One of the key issues before the court was the child’s habitual residence given the child’s mobile lifestyle.  The court ultimately concluded that Brazil was the child’s habitual residence, since she had spent roughly half of her life in Brazil by that point, celebrated 2 of her birthdays there, attended many family events, and that Brazil was the location to which the child kept returning after each time away.  Brazil has been the only constant in the child’s life. The parties' last shared intent was to return to Brazil in January 2023, and the child maintained ongoing connections to her family in Brazil, speaking with them multiple times each week.