Valenzuela v. Michel, No. 12-17205 (9th Cir. 2013)
Annotate this CasePetitioner, the mother of twin girls, filed an application under the Hague Convention on International Aspects of Child Abduction, 19 I.L.M. 1501, after the girls' father, a resident of the United States, did not return them to Mexico. The district court held that the parties abandoned Mexico as the children's habitual state of residence when their parents decided they should, for an indefinite period, spend the majority of their time in the United States. The court concluded that the district court judge did not err in deciding that the parents shared a settled intention to abandon Mexico- they had immediate plans to avail the twins of government assistance in the United States as well as longer-term plans to educate the girls in the United States. The father could prevail by showing that he and the girls' mother shared a settled intention to abandon Mexico as the twins' sole habitual residence, that there was an actual change in geography, and that an appreciable period of time had passed. Accordingly, the court affirmed the judgment of the district court.
Court Description: Hague Convention. The panel affirmed the district court’s denial, after a bench trial, of a mother’s petition under the Hague Convention on the Civil Aspects of International Child Abduction for the return of her children to Mexico. The children were born in Mexico. Their parents had used a “shuttle custody” arrangement in which the children had split their time between Mexico and the United States. The panel held that the Convention did not attach because the parents shared a settled intention to abandon Mexico and adopt the United States as the children’s habitual residence. The panel concluded that the father also could have prevailed on the basis that he and the mother shared a settled intention to abandon Mexico as the children’s sole habitual residence, that there was an actual change in geography, and that an appreciable period of time had passed; therefore, the children were habitually resident in the United States when the father retained them. Judge Reinhardt concurred in his colleagues’ conclusions. He wrote that the questions of “shuttle custody” and “dual habitual residence” were deserving of more thorough consideration than was possible in this case. The panel ordered the mandate to issue at once.
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