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In Gil v. Rodriguez 184 F.Supp.2d 1221, (M.D. Florida, 2002),
petitioner alleged that the child's mother wrongfully removed their
daughter Diana from Venezuela.
Diana was born on May 10, 1994. Petitioner and Respondent never
married, but both parents have been actively involved in Diana's
upbringing. For the first six years of Diana's life, Petitioner,
Respondent and Diana lived together intermittently. During this time,
Petitioner was actively involved in every facet of Diana's life.
In July, 2000, Petitioner, Respondent and Diana moved into an
apartment in Valencia. For ten months, Petitioner, Respondent and Diana
resided together as a family in this apartment.
On April 27, 2001, Respondent took Diana to school. Respondent
alerted Petitioner that because she planned to take Diana to her
mother's house, Petitioner did not need to pick Diana up from school. On
May 3, 2001, Petitioner visited local airports and learned that
Respondent and Diana had flown to Miami, Florida. Petitioner knew that
Respondent had family members in Florida, and attempted to contact them
about Diana's whereabouts.
On June 24 or 25, 2001, Respondent called Petitioner and informed him
that she and Diana were in Florida, and that he should come to visit.
When Petitioner arrived at a designated meeting place on June 28, 2001,
Florida law enforcement officers served him with a Temporary Injunction
for Protection against Domestic Violence filed by Respondent. The
Circuit Court dismissed the case against Petitioner for want of
jurisdiction. Petitioner returned to Venezuela without seeing Diana.
Upon his return, Petitioner eventually determined that Diana and
Respondent were residing in Kissimmee, Florida.
The District Court held that by unilaterally removing Diana from
Venezuela in May, 2001, Respondent breached Petitioner's custody rights
under Venezuelan law. The Venezuelan Constitution states that the father
and mother of a child have a shared and irrevocable duty to raise,
educate, support and assist their children. Republic of Venezuela
Const., Art. 76. Venezuelan law describes these responsibilities and
obligations as Patria Potestas (parental authority). "Patria Potestas
encompasses the guardianship and representation of the offspring who are
the subject of said Patria Potestas, as well as the management of the
offspring's property." Guardianship, in turn, refers to "custody,
material assistance, vigilance and moral as well as educational
guidance.... Exercising parental authority requires direct contact with
the offspring, and therefore the ability to decide their place of
residence or domicile."
Petitioner fully exercised Patria Potestas over Diana. Uncontroverted
testimony established that he actively and directly participated in
every meaningful aspect of Diana's life except for her removal from
Venezuela.
The Court also held that when Respondent unilaterally removed Diana
from Venezuela, Petitioner was exercising his custodial rights.
Respondent maintained that because Diana had not yet turned seven at the
time of her removal, Respondent possessed exclusive custodial rights.
Article 360 of the Organic Law states:
In the cases of suit for final decree of divorce, physical
separation, annulment of the marriage, or if the father and mother were
to hold separate residences, they shall decide, by mutual agreement,
which of them shall exercise guardianship over the children over seven
years of age. The children that are seven years of age or less shall
reside with the mother, except in the case in which she is not the legal
holder of parental authority or in which, due to reasons of health or
safety, it is most appropriate for them to be separated from her
temporarily or for an indefinite period of time. In the absence of
agreement between the father and the mother over which of the two
exercises guardianship over their offspring, the competent judge shall
determine to which of the two it shall belong.... Organic Law, 2, Art.
360.
Respondent's reliance on Article 360 was misplaced. On May 3, 2001,
Respondent agreed that she, Petitioner and Diana all lived in the same
apartment, and had done so for ten months. Respondent never maintained
that she and Petitioner held separate residences when she took Diana to
Florida. When Respondent applied to the Florida Circuit Court for a
domestic violence injunction against Petitioner, she signed a petition
under penalty of perjury stating that she, Petitioner and Diana lived in
one home, "as if a family." Therefore, Article 360 of the Organic Law
did not apply to this case.
Respondent claimed that because no formal custody agreement was in
place when she removed Diana, Petitioner exercised no custodial rights.
The Court held that argument embodied a continued misunderstanding of
Article 360 and ignored Article 3 of the Hague Convention, which clearly
states that custody rights need not be established by formal agreement,
but can arise by operation of law.
Petitioner met his burden under ICARA by establishing that Diana
habitually resided in Venezuela prior to her removal on May 3, 2001; by
removing Diana, Respondent breached Petitioner's custodial rights under
Venezuelan law; and Petitioner possessed custodial rights at the time of
Diana's removal. Therefore, Diana was returned to Venezuela.
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