In Carnelli v Pas, 2011 WL 1983360 (D.N.J.) Not
for Publication, a Petition was filed by Mirna Judith Rodriguez Carnelli
("Petitioner") for the return of her minor child. The District Court
denied the Petition based on the "wishes of the child" exception.
Petitioner and Respondent, both natives of
Uruguay, were married on May 3, 1988 in Uruguay. In June 1988,
Respondent emigrated to the United States, and his wife and young
daughter, Virginia, followed in 1990. The family settled in Kearny, New
Jersey. On September 20, 1996, Daniel was born in Belleville, New
Jersey. The family resided together in Kearny until 2002, when
Petitioner and Respondent separated. At that point, Petitioner and her
children continued to live in Kearny, New Jersey, while Respondent
resided in a separate home in the neighboring town of Harrison. When
Petitioner lost her job at a bank in 2004, she was unable to find new
employment, a circumstance she attributed to her immigration status.
Through personal connections, she was offered a job in Mallorca, Spain.
Her emigration to Spain required her to depart from her native Uruguay,
where she was a citizen and could obtain the necessary travel
authorization. Prior to departing for Uruguay in or about January 2005,
she and Respondent reached an agreement regarding the minor children:
Virginia would live in the United States in Respondent's care and Daniel
would remain with his mother. Petitioner and Respondent jointly obtained
a United States passport for Daniel's international travel to Uruguay,
and then to Spain.
While in Uruguay, Petitioner sought to dissolve
her marriage with Respondent. Although Respondent also contends that he
did not consent to the divorce, he admitted that he signed the divorce
documents. The Uruguayan court entered a Divorce Decree terminating the
marriage of the parties on or about September 28, 2005. It included a
custody agreement, whereby Respondent would continue to exercise custody
over Virginia and Petitioner would exercise custody over Daniel.
Petitioner and Daniel moved to Spain, where
they remained until January 2009. At that time, a loss of employment
prompted Petitioner to relocate. She was offered a job in London, and so
in or about January 2009, Petitioner, Daniel, and Petitioner's second
husband, whom she married on September 23, 2008, moved to the United
Kingdom. Per a signed authorization transmitted from the Uruguayan
Consulate in New York to the Uruguayan Consulate in Palma de
Mallorca, Respondent consented to Daniel's residence in Spain and the
United Kingdom in the custody of Petitioner. In or about July 2009,
Daniel traveled from the United Kingdom to the United States to spend
the summer with his father, as he had done every year since leaving the
United States in 2005. While Daniel was visiting Respondent,
Petitioner's husband returned to his native Argentina upon the death of
his mother, and Petitioner soon relocated there to help her husband care
for his ailing father. Petitioner informed Respondent of her
situation and asked that he keep Daniel in his care until she was able
to sort out her residency, which was necessary for Daniel to obtain his
own Argentine residency. She admited that she agreed to his enrollment
in school in New Jersey, given the uncertainty regarding how long it
would take for her residency to be approved but stressed that she made
it clear to Respondent that Daniel should be returned to her once she
obtained residency. When the residency was approved on October 15, 2009,
Petitioner asked for Daniel to return but Respondent refused. Petitioner
claimed that at that point, she began to encounter consistent difficulty
in establishing contact with Respondent and ultimately was unable to
establish contact at all. Daniel remained in the physical custody of his
father since July 2009 to the present. Petitioner filed the Petition in
this Court on June 16, 2010. At that time, Daniel was 13 years old. He
was currently 14.
The Court found that Petitioner met her burden
of proving that Daniel was wrongfully retained. The retention occurred
in or about October 2009, when, according to Petitioner's testimony, she
asked that Daniel be returned to her and Respondent failed to comply
with her wishes. Petitioner conceded that the United Kingdom was the
child's place of habitual residence. Petitioner's request for Daniel's
return showed her exercise of her custody rights. Having found a
wrongful retention, the Court noted that this case presented a slightly
unusual situation with regard to the interplay between Article 3, which
sets forth the standard for wrongful removal or retention, and Article
12, which directs the return of the child forthwith if that standard is
met. The country in which Daniel was habitually resident immediately
before his wrongful detention--which Petitioner conceded was the United
Kingdom–was not the country to which Petitioner sought he be returned.
Petitioner relocated to Argentina after Daniel traveled to the United
States. Nor was Argentina a place Daniel ever called home, such that his
return to his mother would effect the Convention's goal of having
custody disputes resolved in the home country, as opposed to the place
where the child has been wrongfully removed or retained. Petitioner
argued that the discrepancy between the country of habitual residence,
as defined by the Convention, and the country to which she sought
Daniel's return should not foreclose the relief she sought because
Article 12 of the Convention was deliberately silent on the matter of
where the return of a wrongfully removed or retained child should be
ordered. Petitioner appeared to be correct. Article 12 simply provides
that "the authority concerned shall order the return of the child
forthwith," without specifying, as the preamble to the Convention
contemplates, that the return be to the country of habitual residence.
(see also Von Kennell Gaudin v. Remis, 282 F.3d 1178, 1182 (9th
Cir.2002) (noting that Convention does not make clear to what country a
child must be returned and pointing out difference between Convention's
preamble and its actual text). The Convention's official commentary,
cited by Petitioner in support of her argument, bears out the view that
a court handling a Convention claim may order the return of a child to
the custodial parent even if the parent is not in the place of the
child's habitual residence. ( See Elisa Perez Vera, Explanatory Report P
110, in 3 Hague Conference on Private International Law, Acts and
Documents of the Fourteenth Session, Child Abduction 459-60 (1982).
Though the Court agreed with Petitioner's
argument that it was authorized under the Convention to return Daniel to
his mother's custody in Argentina, the Court found that Respondent had
proven, by the required preponderance of the evidence standard, that
Article 13's "wishes of the child" defense applied. Article 13 provides
that "[t]he judicial or administrative authority may also refuse to
order the return of the child if it finds that the child objects to
being returned and has attained an age and degree of maturity at which
it is appropriate to take account of its [sic] views." Daniel
unequivocally testified that he wished to remain in the United States
with his father. There is no set age under the Convention at which a
child is deemed to be sufficiently mature; rather, the Third Circuit
guides that the district court hearing the matter must make this
fact-intensive determination on a case-by-case basis. Tsai-Yi Yang, 499
F.3d at 279. Daniel, who is 14, expressed his wishes to stay with his
father in a cogent and well-reasoned manner. He explained that he
enjoyed meaningful and close relationships with many family members also
living in or near his father's home in Kearny, New Jersey, including
specifically his sister, Virginia, his cousin Michael and his Aunt
Betsy. He also testified that he was happy with his schooling as a
student in Kearny High School, where he enjoyed friendships and, as the
records demonstrated, had achieved good grades. In contrast, he
described an itinerant and somewhat lonely lifestyle with his mother. He
also testified that while he spoke a little Spanish, he was not fluent
in the language, which further provided a reasoned basis for his desire
to remain with his father in the United States. Moreover, there was no
indication that Daniel's wishes to remain with his father were somehow
the product of undue influence by his father or some other family member
or third-party. The Court also noted that his wishes did not appear to
arise from a teenager's rebellious streak or some aversion to his
mother. Daniel made it very clear that he loved both of his parents and
wished to have a harmonious relationship with both of them. His
preference to remain in the United States with his father would seem to
stem, rather, from a desire for a more stable lifestyle than his mother
was able to provide. Petitioner drew attention to the fact that during
this period of time that Daniel had been living with his father, it has
been very difficult for her to contact Daniel and that, moreover, the
infrequent contact she did have with him (mostly over computer chats, as
opposed to telephone) had been strained. She indicated her belief that
this breakdown of communication with her son evidenced Respondent's
efforts to alienate Daniel from Petitioner. The Court observed that
communication between Petitioner and her son had been lacking. Daniel
did display feelings of resentment toward his mother, but based on his
testimony, the Court understood this tension to stem from Daniel's
frustration with his mother's lack of candor with respect to her pursuit
of this Petition and her role in the commencement of an ultimately
unsubstantiated child welfare investigation by New Jersey's Division of
Youth and Family Services. The Court listened attentively to Daniel's
testimony, and it did not perceive the communication problems between
Daniel and Petitioner to be indicative of any manipulation by Respondent
of Daniel's thoughts and feelings but rather of the boy's difficult
position in which he is caught in a tug-of-war between his adversarial
parents. The Court weighed this unfortunate circumstance and concluded
that it does not diminish the reasonableness of Daniel's wish to remain
in the United States with his father. The Court found that Daniel
presented as a thoughtful and intelligent young man, who, at the age of
14, demonstrated a degree of maturity at which it was appropriate for
the Court to consider his views regarding whether to stay with his
father or be returned to his mother. Accordingly, the Court denied the
Petition under Article 13 of the Convention and the implementing
statutory provision, 42 U.S.C. 11603(e)(2)(B).
