Case Update (7 March 2024): Horacius v. Richard; child who had lived in Florida most of his life is ordered returned to Canada
Petitioner Father (a Canadian and U.S. dual national) and Respondent Mother (a Canadian national) met in 2016, married in Canada in 2018, and had their child, AH, in Canada in 2020. In December 2020, the family traveled to the Dominican Republic for vacation. Instead of returning home, the family then traveled to Florida on or about February 15, 2021. This is where their stories diverge. The Petitioner said they traveled to Florida to stopover and visit Respondent’s ill father. The Respondent said they traveled to Florida to make Florida their permanent home. Upon arriving in the U.S., the parties represented to a U.S. customs agent that their purpose for entering the U.S. was “to visit family members.” The Respondent, AH, and AH’s stepbrother were granted B2 visas to remain in the U.S. for six months. They began living with Respondent’s relatives in Miami, and terminated their joint lease on their Canadian property after the property was sold. Their belongings from the Canadian home remain in Canada in a storage unit. Petitioner began paperwork to sponsor Respondent’s application for U.S. citizenship, with a goal of submitting the application before the B2 visas expired. Respondent apparently kept delaying the process saying it “was not a priority”. The application was ultimately filed on October 28, 2021. In January 2022, Petitioner suggested that the family cancel the citizenship application, return to Canada and resubmit the application from Canada. By having done it while in the U.S., the Respondent and AH were not permitted to leave the U.S., and they had already overstayed their visa. Apparently, the Respondent replied by saying that if the application was not processed by February or March 2022, they would cancel it and return to Canada. On January 28, 2022, the Petitioner withdrew his sponsorship application, arguing the financial burden and expense of living in Florida. Respondent then kicked Petitioner out of the home in which they were living, and Petitioner returned to Canada.
Respondent filed for divorce on February 7, 2022, and on February 11, 2022, Petitioner sent airline tickets for the family to return to Canada on March 1, 2022 (he had not yet been served with the divorce petition). At this juncture, he said that he still believed the plan was to return to Canada and start immigration proceedings there. He received the divorce petition on February 14, 2022. Petitioner, in an attempt to revive her immigration application, found an immigration lawyer who advised to apply for legal status using the Violence Against Women’s Act, which she did in April 2022. It is still pending. Respondent’s application apparently had inconsistencies between it and her testimony at the Hague trial, which led the Hague court to conclude she lacked credibility.
The U.S. Department of State, who sends out a form letter to a state court when there is a potential Hague return petition, sent one to the Florida state court. Upon receiving it, the state court erroneously believed it was the request to return the child, and denied the request. When appealing with a new lawyer, the new lawyer learned that no petition had ever been filed for seeking the child’s return in the first place, so, Petitioner filed a motion to vacate the state court’s order for lack of subject matter jurisdiction. The order was ultimately vacated. The federal Hague return petition then followed.
Examining the Petitioner’s case based on a wrongful retention date of March 1, 2022 (when the Respondent and child did not get on the plane to Canada), the court concluded that the parents did not share a settled intention to change the child’s habitual residence from Canada to the U.S. In addition to Respondent’s credibility issues, the court cited to the storage unit full of their belongings in Canada, the temporary nature of the child’s immigration status, and dismissed the fact that the child had lived in Florida longer than in Canada. The court also dismissed the argument that Petitioner was actively participating in Florida custody proceedings, so his custody rights were never breached. The court concluded that, despite having filed his return petition some 20 months after the wrongful retention, the child was not settled in Florida - did not participate in many activities, was only 4 years old, has an uncertain immigration status, and only attended daycare a few hours per day.
Therefore, the child was ordered returned to Canada.
