Case Update (4 Dec 2023): Bre v. Aguirre; Child who lived about 2 years in US and 5 years in Argentina was habitually resident in the US
Petitioner Mother and Respondent Father are parents to one minor child, born in January 2015 in Florida. In 2017, Mother and Child moved to Argentina due to the Mother’s immigration status. The child never obtained Argentine citizenship while living in Argentina. In June 2021, the parties signed a Parenting Agreement that the child would reside primarily with the Mother in Argentina until January 2025 (when she attained the age of 10), at which time she would return to Miami. This agreement, which also “established by mutual agreement that [the child’s] country of habitual residence is the United States” was apparently presented to the court in Miami-Dade County, to be made a court order. On or about December 15, 2022, the child traveled to Miami to spend the Argentine summer school break with the Father. The child was scheduled to return to Argentina on March 15, 2023. The Father never returned the Child. The Mother filed the instant request to return the child pursuant to the Hague Abduction Convention.
The U.S. District Court for the SD of Florida properly stated that, to determine the child’s habitual residence, it needed to consider the totality-of-the-circumstances under Monasky v. Taglieri. In doing so, it concluded that the child’s habitual residence is the United States based on the parents’ shared intent reflected in the Parenting Plan (that the habitual residence be the United States), and the practical circumstances (the child having been born here, presumably scheduled to return here in January 2025, and not holding Argentine citizenship). The court therefore concluded that the Mother’s request to return the child could not be sustained because the Father’s retention of the child in Florida was not wrongful.
By pure mathematics, the child lived in Florida for the first 2 to 3 years of her life. She then resided in Argentina for the next 5 to 6 years of her life. The retention occurred almost 2 years before the existing court order required the child to relocate back to Florida. While the parents did reach an agreement that was made a court order in Florida (which is a separate conversation as to UCCJEA jurisdiction), and that agreement stated the child’s habitual residence was the U.S., is that in any way persuasive or determinative? This court used it as one fact among several. See another case whereby 2 parents reached an agreement (incorporated into a court order) in Illinois that permitted Mother and Child to relocate to Germany. At the conclusion of a summer holiday in the U.S., the Father retained the child, the Mother sought the child’s return, and the Father argued that their prior order designated the U.S. as the child’s habitual residence. The court declined to dismiss that case, arguing that the court order may have purported to determine the child’s habitual residence at the time of the order itself (which, in that case, was one year prior), but that it did not determine the child’s habitual residence at the time of the retention. Granted, in that case, the custody order permitted an indefinite relocation to Germany, whereas in this case, there is a limited (about 8 year) relocation to Argentina.
The Hague Conference’s Practitioner’s Tool on Voluntary Agreements may provide some guidance on drafting agreements in these circumstances. (see paragraphs 67-68)
