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In Matter of Leslie v. Noble, 377 F.Supp.2d 1232 (S.D.
Florida, 2005), petitioner was the father of Adrian, the minor child.
Petitioner and Respondent were never married, but had an intimate
relationship, sharing joint living arrangements between sometime in 1999
through late December of 2003. Adrian was born on August 25, 2000, in
Belize. Respondent left Belize on April 29, 2004, with the child,
arriving in the United States on April 30, 2004. Prior to the time of
filing of the Petition, and after Respondent's departure from Belize
with the child, the Supreme Court of Belize awarded legal custody of
Adrian to Petitioner.
Respondent asserted that when she left Belize with Adrian she had
custody of the minor child because Belizean law confers custody of a
child born out of wedlock to the mother, and that at the time of her
departure Petitioner only had a right of access to Adrian, which is not
protected under the Convention and cannot be enforced through ICARA.
The District Court noted that Respondent’s counsel indicated that his
client did not dispute that Belize was the minor child’s habitual place
of residence.
The Court found that Petitioner Had Rights of Custody Before, During,
and After the Proceedings in the Courts of Belize.
Prior to Petitioner and Respondent's separation, they lived together
with the child, with Petitioner participating in the support of, and
decision-making for, Adrian.
After the separation, Petitioner continued to make decisions for the
care of the minor child.
The Belize Supreme Court specifically indicated in its judgment that
an unwed mother's guardianship/custody of a minor child under section 16
of the Families and Children Act is subject to two sections of that Act:
section 33 (authorizing court to determine child's parental
relationships irrespective of parents' marital status), and section 85
(granting father of child born to a single woman the right to seek
guardianship/custody of that child). The Belize Supreme Court granted
Petitioner custody of Adrian under section 85 of the Families and
Children Act.
The Convention specifically includes caring for the person of the
child, and, particularly, the right to determine the child's place of
residence, as encompassed within a parent's rights of custody.
Convention, Art. 5a, 50 Fed.Reg. at 10,498. Courts have also found that
a liberal interpretation of the exercise of custody rights includes a
parent's providing financial support and attempting to keep, or to seek,
regular contact with a child. The court found that Petitioner had rights
of custody at all times material, and that the Belize Supreme Court
judgment awarding custody to Adrian to Petitioner applied nunc pro tunc.
The court found that Respondent's removal of Adrian from Belize and
his retention in the United States was wrongful and that a return to the
status quo is not an affirmative defense under the Convention.
The Court held that it was bound by the Eleventh Circuit's
application of the "fugitive disentitlement doctrine" (allowing
dismissal of the appeal of a party who is a fugitive from justice) both
to civil and criminal matters, which has even been invoked in a case
under the Convention. Pesin v. Rodriguez, 244 F.3d 1250, 1251-52 (11th
Cir.2001). The Belize Supreme Court specifically states that Respondent
was a convicted fugitive under that country's legal system.
Consequently, any affirmative defense raised by Respondent herein failed
and had to be dismissed.
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