Case Update (28 Aug 2024): Sarzosa v. Enriquez; Father’s petition to return child to Ecuador denied for failure to prove that the habitual residence shifted from the USA to Ecuador

Since Monasky v. Taglieri, trial judges have been left with significant discretion to weigh the various evidence presented to them and decide whether a Petitioner demonstrates, by a preponderance of the evidence, where a child is habitually resident. In this case, the Respondent Mother, a citizen of Ecuador, learned that, after a years-long process, she was awarded LPR status in the USA and given a green card. This happened in September 2021, approximately around the same time she learned she was pregnant with Petitioner’s child. In February 2022, Respondent moved to the USA and then gave birth to the child at issue on May 18, 2022 in New Jersey. The Petitioner traveled to NJ, met the child, and paid several thousand dollars monthly child support. While in NJ, the child had a pediatrician, and the Respondent secured an apartment, and “credibly testified that she always intended to live permanently in the United States…” with the child. On July 31, 2022, when the child was about 2 months old, the Respondent and child traveled to Ecuador. At first, they stayed in an Airbnb, but about a month later, moved into a leased home paid for by Petitioner. Initially, Respondent intended to remain in Ecuador for 3 months, and then return to NJ for the child’s October vaccination appointment, but ultimately she decided to remain in Ecuador until December or January, and got the child vaccinated there. Then, in January 2023, the Petitioner stored Respondent’s green card and the child’s passport in his office without Respondent’s knowledge and refused to return them, all of which led to Respondent engaging in a daring venture to retrieve the documents, ending in a car chase. In January, apparently Petitioner also registered the child as an Ecuadorian citizen without Respondent’s knowledge or permission, which had the effect of putting in place a prohibition on the Respondent removing the child from Ecuador without Petitioner’s consent. Respondent testified that she was stuck in Ecuador through coercion. In June 2023, the parties and child traveled to Florida with a return flight to Ecuador booked, but, at the airport in Florida, an argument erupted, and Respondent stated she wished to remain in the USA with the child, so, to avoid potential legal action that might place the child with the state, the Petitioner flew home alone, and Respondent flew to Texas to live with a friend.

The district court agonized over the issue of habitual residence. Was the child’s habitual residence Ecuador, where the child had lived for 11 of the first 13 months of her life? Was it the parties’ intention that the child and Respondent move to Ecuador as soon after the birth as they were healthy to travel? Was the time in Ecuador supposed to be more limited, but for Petitioner’s “coercion”? The court concluded that the child was “at home” (i.e., had its habitual residence) in the USA as of July 2022 when the Mother and child traveled to Ecuador. She obtained a green card, moved to a new apartment, applied for Medicaid, visited a local physician, and purchased a stroller and crib, which were left in NJ when traveling to Ecuador. Further, she abandoned Ecuador when she moved to NJ to give birth and live - closing the restaurant where she worked and selling personal belongings. The court further believed that from January 2023 to June 2023, the Respondent was coerced into living in Ecuador, citing Monasky that if “an infant lived in a country only because a caregiving parent had been coerced into remaining there”, this should be part of the analysis. Therefore, the court looked at whether the child’s time in Ecuador between July 2022 and December 2022 was sufficient to change the child’s habitual residence. The court noted this was a difficult “in between” case where a child travels abroad “for some period of ambiguous duration” where the “exact length of the stay [is] left open to negotiation” so it is difficult to analyze shared intent. One need not intend to stay indefinitely to establish a new habitual residence. But, the evidence was a “mixed bag.” The court concluded Petitioner did not meet his burden to establish that Ecuador was the child’s habitual residence, because there were no objective facts that pointed “unequivocally” to that conclusion.