An Ecuadorian mother’s taking of her minor child from Michigan to Ecuador in 2009 without notifying the father, in violation of the parties’ divorce judgment, did not preclude the possibility that the child had become a “habitual resident” of Ecuador for purposes of a Hague Convention challenge to the father’s 2016 failure to return the child to Ecuador after she visited him in Michigan, the 6th U.S. Circuit Court of Appeals has ruled.
In Moreno v Zank (Docket No. 17-2397), the U.S. District Court for the Western District of Michigan had ruled the mother’s initial abduction of the child to Ecuador, which ran afoul of the parties’ divorce judgment, meant that Ecuador could not be the child’s habitual residence.
The 6th Circuit reversed.
“From [the child’s] perspective, at the time of [the father’s] retention of her in the United States, Ecuador was the place in which she possessed all degrees of settled purpose,” the 6th Circuit said. “The only basis for deciding that [the child] was not habitually resident in Ecuador in 2016 is the purported illegality of [the mother’s] actions in 2009 in taking [the child] to Ecuador in the first place.”
However, “that is not enough to trump the acclimatization standard, at least where [the father] failed to pursue all treaty-based remedies in Ecuador to secure [the child’s] return to the United States,” the 6th Circuit stated.
The appropriate remedy was a Hague Convention petition filed in Ecuador and not the “self-help remedy” of basically “re-kidnapping” back to the United States, the 6th Circuit held.
The defendant, Jason Zank, is a U.S. citizen. The plaintiff, Liz Lopez Moreno, is a citizen of Ecuador. While married and living in Michigan, they had one child in 2006. The plaintiff and the defendant divorced in 2009. Their divorce judgment gave the parties joint legal and physical custody of the child and prohibited the plaintiff from taking the child to Ecuador without prior notice to the defendant.
In December 2009, the plaintiff took the child to Ecuador without telling the father, in violation of the divorce judgment. The defendant then obtained an ex parte order from a Michigan state court, temporarily granting him sole legal and physical custody of the child. The defendant also contacted the U.S. Department of State and completed a Hague Convention petition with the U.S. Embassy in Ecuador. However, the defendant asserted he did not file the petition with the courts in Ecuador or otherwise try to secure the child’s return through Ecuadorian procedures because he had gotten the “runaround” from officials at the U.S. Embassy. Meanwhile, the plaintiff enrolled the child in a private school in Ecuador, where the child participated in extracurricular activities and made friends.
In 2010, the plaintiff allowed the defendant and his parents to visit the child in Ecuador. By this time, the plaintiff had obtained an ex parte order from an Ecuadorian court prohibiting the child from leaving the country. The plaintiff and the defendant came to an agreement where the plaintiff got full legal custody and an increase in child support, and the defendant “waive[d] pursuing further action arising from the arrival of the minor child in Ecuador.” In return, the defendant got the 2010 Ecuadorian court order lifted and the plaintiff agreed to let the child visit the defendant in Michigan when she was not in school. The Ecuadorian Family Court approved the agreement, granted permanent custody to the plaintiff in Ecuador and allowed the child to visit the defendant in the United States.
After this agreement was made, the child visited the defendant once in Michigan during 2014. Before a second Michigan visit in 2015, the plaintiff and the defendant entered into a second agreement in the United States, which mirrored the Ecuadorian agreement. It was unclear, however, whether that agreement was filed with a U.S. court.
In the summer of 2016, the child visited the defendant in the United States. The defendant alleged that, during this visit, the child told him that the plaintiff had physically abused her and she did not want to return to Ecuador. The child allegedly called her mother and said she knew her mother had abducted her in 2009 and took her to Ecuador. As a result, the defendant did not put the child on an August 15, 2016 scheduled flight back to Ecuador.
The defendant filed a petition for permanent custody in Montcalm County Circuit Court in October 2016. The Friend of the Court determined it was in the best interest of the child for the defendant to have permanent custody, especially since the plaintiff had violated the 2009 custody order and the child had voiced a preference for living with the defendant. The plaintiff did not participate in these proceedings, presumably because she did not update her address with the Friend of the Court when she moved to Ecuador. The trial court ultimately granted permanent sole custody of the child to the defendant.
On August 14, 2017, the plaintiff filed this Hague Convention petition in the U.S. District Court for the Western District of Michigan. She sought the child’s immediate return to Ecuador, asserting the child was a habitual resident of Ecuador.
The U.S. District Court rejected the plaintiff’s claims. Although it acknowledged the child had spent enough time in Ecuador to be deemed a habitual resident of the country, the U.S. District Court concluded that because the plaintiff had initially abducted the child in violation of the law, the child could not have become a habitual resident of Ecuador and that her habitual residence remained in the United States. The U.S. District Court further ruled that because the child had habitual residency in the United States, the 2009 custody order prevailed over the subsequent Ecuadorian and U.S. agreements.
Hague Convention Scheme
Must Be Followed
On appeal, the 6th Circuit held that the plaintiff’s taking the child from Michigan to Ecuador in 2009 did not preclude the possibility that the child had become a habitual resident of Ecuador for purposes of a Hague Convention challenge to the defendant’s keeping of the child in Michigan.
In its analysis, the 6th Circuit said that, for children above the age of cognizance, a habitual residence is “the nation where, at the time of … removal, the child has been present long enough to allow ‘acclimatization,’ and where this presence has a ‘degree of settled purpose from the child’s perspective.’”
The 6th Circuit pointed out that the purpose of the Hague Convention is to provide a legal framework to “protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence.”
Accordingly, “if Convention procedures are not fully pursued when a child is first abducted, it makes little sense to categorically permit later self-help abduction in the other direction, after the child has been acclimatized in the second country,” the 6th Circuit wrote. “[P]ermitting re-abduction results in a total disregard for the limits that the Convention puts on the remedy for the first abduction, such as time limits, and exceptions for the child’s welfare or mature preference,” the Court said. In addition, “permitting abduction for a second time carries the same threat to the child’s well-being of being torn from an accustomed residence.”
The scheme of the Hague Convention achieves its purposes “only if Convention processes are applied, with applicable exceptions, each time a child is abducted from a country in which the child has been acclimatized,” the 6th Circuit stated. “The rule applied by the district court in this case was not consistent with such a scheme.” In so ruling, the 6th Circuit noted that at least two other federal circuits have reached a similar conclusion: the 7th Circuit in Kijowska v Haines, 463 F3d 583 (7th Cir 2006), and the 11th Circuit in Ovalle v Perez, 681 F App’x 777 (11th Cir 2017).
“Our holding that Ecuador was the habitual residence of [the child] in 2016 does not automatically mean that [the defendant] must return her now,” the 6th Circuit wrote. “Just as [the plaintiff] could have raised defenses to a Hague Convention case had one been brought in Ecuador, [the defendant] can raise such defenses in this case on remand. Several such defenses were raised by [the defendant] in the district court below, but the district court had no occasion to reach them. … We therefore remand this case to the district court for a first evaluation of [the defendant’s] defenses against [the plaintiff’s] prima facie Hague Convention case. Such a remand is warranted because these defenses are all fact-intensive ones, generally requiring specific and detailed fact-finding by the district court.”