Case Update (6 April 2022): Garcia v. Ramsis; motion for a new trial denied; child ordered returned to Spain

Abduction

May 5

In late January, after the U.S. District Court for the ED Texas found that Spain was the minor child's habitual residence, it granted Mr. Garcia's request to return the parties' minor child to Spain, and the court ordered that child returned. Ms. Ramsis, however, filed a motion for a new trial, and submitted 8 new pieces of evidence to argue that either the United States or Egypt was the child's habitual residence. In her motion, she further argued that the child is now "well settled" in the United States. She also attempted several new arguments, not presented at trial: that Mr. Garcia never exercised his custody rights and that he consented to the child's "removal from Mexico to travel through the United States" or acquiesced post removal.

“Courts do not grant new trials unless it is reasonably clear that prejudicial error has crept into the record or that substantial justice has not been done, and the burden of showing harmful error rests on the party seeking the new trial.”

The United States is not the child's habitual residence. Ms. Ramsis cannot establish the USA as the child's habitual residence "by unilaterally removing her to the country..." The relevant period of time when determining habitual residence is immediately before the removal or retention. Further, Ms. Ramsis cannot argue that the child is now settled in the United States, because Mr. Garcia filed his return petition in the courts before one year had elapsed after the child's wrongful removal. Ms. Ramsis' argument that Mr. Garcia consented to the child being in the United States is incorrect. Mr. Garcia consented to the child traveling through the United States, and then continuing to Egypt, as was planned. Ms. Ramsis further presented no evidence of acquiescence.

Egypt is not the child's habitual residence. At trial, Ms. Ramsis testified that she is not safe in Egypt, nor is the child. She denied any intent to establish a residence in Egypt, and repeatedly testified that Mr. Garcia tried to force her to return to Egypt against her wishes. She has said nothing subsequent to trial to contradict her own testimony.

The totality of the circumstances indicate Spain is the habitual residence. Ms. Ramsis submitted nothing in support of her new trial motion that would indicate otherwise. The child is to be returned to Spain.

Melissa Kucinski

Melissa Kucinski works with family lawyers to strategically resolve their clients’ complex international cases. A fellow of the AAML, the IAFL, and chair of international family law committees in the American Bar and New York State Bar Associations, Melissa is a respected colleague to have on any legal team. A former consultant for the Hague Conference on Private International Law, member of the Uniform Law Commission’s Joint Editorial Board on Uniform Family Laws, and member of the U.S. Secretary of State’s Advisory Committee on Private International Law, Melissa maintains a robust network to help her clients in international disputes.

https://mkfamily.law/