Case Update (25 Nov 2024): Centeno v. Barco; children returned to Canada from USA under Abduction Convention

The parties are parents to two children who are dual Costa Rican/Italian citizens. Their mother, Costa Rican, relocated them from Costa Rica to Toronto, Canada. Both children had certain educational needs that required services better available in Canada. The children’s father resided in Colorado. The children were receiving services at their schools in Canada. But, the children did have some problems - bullying, difficulty making friends. About six months after the children had been living in Canada, the mother was experiencing some problems with a significant other, and asked if the children could spend time with their father in Colorado. The children crossed the border in mid-December 2023, and traveled with their father and grandmother to Colorado by car. After there, the father found them to be underweight, having dental problems, and learned of the bullying and difficulty with their mother’s significant other. He decided on December 23, 2023 that the children should not return to Canada. He relayed this by text message to the mother. The mother, in turn, told the father to return the children by January 20, 2024. There were some subsequent texts between the parties whereby the mother negotiated things such as agreeing to give up her job, or agreeing to have only one child return while the other remained in Colorado. She argued that she only did this to try to get the children back to Canada. She filed her petition in the U.S. District Court on June 11, 2024. The Court held a full day evidentiary hearing on September 11, 2024. It then ordered the children returned to Canada.

The court, in its written opinion, analyzed, at least at a high level, each element of a case brought under a return petition, even on issues that neither party contested or argued. For the habitual residence analysis, the court found that it had to simply determine whether the children were habitually resident in Canada, and not affirmatively assign the children a habitual residence. In doing so, it focused on the temporary nature of the visit to Colorado, and that the father’s decision to retain the children occurred after the children arrived. The court discounted any argument surrounding the superseding text messages that seemed to bargain away return of one of the children. When the father changed his mind as to where the children would reside, this was not a change in the parents’ shared intentions. In other words, the changed intentions of one parent does not alter a child’s habitual residence. The court was also not bothered that the children had only been in Canada for six months before they left for Colorado, and cited to a few cases where courts have found children to have acclimatized in as little as six months. The court also noted that even though these children had difficulty making friends in Canada, and had issues with bullying, these are issues often experienced by immigrant children with special needs. Finally, the court made clear that habitual residence is pinpointed at the time of the alleged wrongful retention, which, here, was January 20, 2024 (the later date on which the mother permitted the children to stay and when she expected them to return to Canada). This means that for the habitual residence to have shifted to the USA, it would need to have done so between their arrival in Colorado in mid-to-late December, and January 20, 2024, arguably one month, when they were not in school.

The only exception argued by the father was that the mother consented to or acquiesced in the children’s retention in Colorado. The court nonetheless hit upon the other exceptions, dismissing each in turn. For the consent/acquiescence argument, the court made clear that the lack of a definite date of return did not mean that the mother’s agreement for the children to reside in Colorado was unconditional. The record showed that it was finite and approximately timed to the children’s winter break from school.