Case Update (20 July 2023): Argueta v. Argueta-Ugalde; 6th Circuit affirms application of Monasky to a very mobile young child

The district court previously ordered the parties' minor daughter returned to Brazil on February 2, 2023. The Respondent Father appealed to the Sixth Circuit, and the Sixth Circuit affirmed the return order. The Respondent had requested a stay pending appeal, which was denied, so the minor child is already back in Brazil.

The key issue on appeal was whether the court erred in concluding that Brazil, and not the United States, was the child's habitual residence. The couple, and their child (and two older siblings from the mother's prior relationship), had a mobile lifestyle, and for several years had moved back and forth between China and Brazil. In late 2021, the Petitioner transited through Mexico for several month, en route to Michigan to meet with the Respondent and children. The couple and the children resided in Michigan together from July 31, 2022 to November 6, 2022. The trial court concluded, contrary to Respondent's assertion, but supported by the testimony of Petitioner and the father of the older children, that the family was scheduled to return to Brazil in January 2023. When the couple's marriage deteriorated, and the Petitioner Mother returned to Brazil in November 2022, she asked that the children be returned at that time, and when they did not, she initiated a request to have them returned pursuant to the Hague Abduction Convention. Ultimately the Respondent returned the two oldest children, but retained the youngest.

The Sixth Circuit concluded that the district court did not err in its application of the Monasky totality-of-the-circumstances analysis for a child's habitual residence. The Respondent argued that there were problems with the Portuguese interpreter's competence at trial, but the court concluded that if there were any issues, the Respondent, also fluent in Portuguese, could have pointed them out at trial, and any potential errors did not go to an issue that formed the basis of the judge's decision. Ultimately, the district court was permitted to reach the conclusion it did, and supported it by opining that the child's family and relationships remained primarily in Brazil; that the child continued those relationships through routine video calls; that the family intended for Brazil to remain as a home base; that the Mother had ongoing business ventures in Brazil, supported by the Father; and, they maintained two parcels of real estate in Brazil. Furthermore, the children always traveled together, and, at the very least, the two oldest children were expected back in Brazil in January 2023, as testified to by their father.

The Respondent also argued, on appeal, that Brazilian law grants both parents equal rights to determine the child's residence, and he exercised his right to choose Michigan. However, the court concluded that Brazilian law gives both parents equal rights to determine a child's residence, and if they disagree as to the residence, then a relocation of a child to a different place must be decided by a Brazilian family court. The Respondent did not have a custody order from a Brazilian court that granted him sole custody or the right to permanently relocate the child to the United States.