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In Castillo v
Castillo, 597 F.Supp.2d 432 (D. Delaware,
2009) Petitioner Diana Terreros Castillo ("petitioner") filed a petition
against respondent Faber Castillo, her former husband ("respondent") on
July 29, 2008, seeking the return of her minor child. The parties were
married in Colombia and on October 26, 1997, petitioner gave birth to
child. At the time child was born, respondent resided in an apartment in
Bogota, and petitioner and child resided with petitioner's parents
outside of Bogota. Petitioner and child visited respondent in Bogota on
weekends during child's first three years but continued to reside with
petitioner's parents. When child was three years old, respondent moved
to Venezuela. Respondent then moved to the United States, after which
his contact with child consisted primarily of monthly telephone calls.
The parties divorced in Colombia in 2002. They agreed to share parental
rights and custody with respect to child, with petitioner as primary
caregiver. The parties also agreed that child could travel outside
Colombia for parental visits as long as child was returned after an
agreed period of time. After the divorce, child continued to live with
petitioner and petitioner's parents in Colombia near other family
members. Almost all of child's extended family resides in Bogota. In
January 2006, respondent's wife, a United States citizen, applied for an
immigrant visa for child. In or around February 2007, respondent
contacted petitioner to make arrangements for child to come to the
United States. On February 27, 2007, after the parties worked together
to complete the visa prerequisites, child was issued an immigrant visa,
which authorized immigration to the United States until August 26, 2007.
The child was to come to the United States to stay with respondent for
approximately one month after which time child would return to Colombia.
Respondent booked for child a round trip airline ticket leaving from
Bogota on June 28, 2007, and returning to Bogota on July 29, 2007. On or
about June 28, 2007, child traveled to the United States. After arriving
in the United States, child received a "green card," authorizing child
to reside in the United States as a permanent resident until July 19,
2017. On or about July 24, 2007, respondent informed petitioner that
child would be remaining with him in the United States, an arrangement
to which petitioner objected. Petitioner filed the action on July 29,
2008. On October 20, 2008, by order of the court, child met with
attorney Kathleen McDonough. The purpose of this meeting was for
McDonough to interview child to ascertain whether child is " 'well
settled' in her present environment [,] ... objects to be returned to
Colombia and, if so, ... has attained an age and degree of maturity at
which it is appropriate to take account of her views." The report from
this meeting indicated that since the end of July 2007, child had lived
with respondent and his wife, Santiago, whom child called "Lily," in
their home at 2623 McClary Drive in Wilmington. Neither respondent nor
Santiago had other children, though Santiago had several family members
living nearby with whom child, respondent, and Santiago regularly spent
time. Child participates in family activities with respondent and
Santiago, including fishing trips on the Chesapeake and rides on the
Cape May-Lewes Ferry. Child reported not playing much with children in
her neighborhood because few are close to her in age. Child reported
having many friends from Marbrook Elementary School, where she was
enrolled. At school, child is placed in bilingual classes for some, but
not all, subjects. Child expressed enthusiasm for school; she ranked in
the 60th percentiles, approximately, for math and verbal skills and has
received perfect or near perfect scores on several recent tests. Child
has also developed fluency in English, a language she did not speak when
she arrived in the United States in June 2007. After school and during
the summer while respondent and Santiago are at work, child either
attended daycare at the Latin American Community Center or is cared for
at home by Santiago's aunt. Child has also received awards for perfect
attendance during the second and fourth marking periods of the 2007-2008
school year. Child expressed a preference for her school and friends in
the United States. Child reported that she speaks to petitioner by
telephone occasionally, but did not express any sense of missing her
life in Colombia. When discussing her life in Colombia, child recounted
concerns about safety in the neighborhood where she lived with
Petitioner and Petitioner's parents, explaining that she usually did not
play outside due to those safety concerns. Child also reported spending
much of her time at Petitioner's home alone and that she had few friends
due to her school's distance from her home and the difference between
her schoolmates' socioeconomic background and her own. Child reported
that she received little help with her homework when she lived with
petitioner and that her grades in school were worse than those she
receives now. Child displayed "impressive" maturity for a girl about to
turn eleven years old. She was bright, enthusiastic, and polite, and
appeared well cared for. Child demonstrated clear understanding of the
meeting's purpose and the need to answer questions truthfully. She
answered questions in a straightforward manner and did not appear
fearful or under duress. Child expressed a strong and unequivocal desire
to remain in the United States.
The Court noted that even where a petitioner
establishes that the child has been wrongfully removed or retained, the
court may deny the petition if the respondent establishes, by a
preponderance of the evidence, that an exception set forth in Article 12
or 13 (besides 13b) of the Convention applies. See 42 U.S.C. s
11603(e)(2). One such exception, found in Article 12, applies where one
year or more has elapsed between the wrongful retention or removal and
the date of the petition, see 42 U.S.C. s 11603(f), and "it is
demonstrated that the child is now settled in its new environment."
Hague Convention, art. 12. Another exception, found in Article 13,
applies where "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 views." Hague Convention, art. 13
With respect to whether the "well-settled"
exception applies, courts should focus on whether there is "substantial
evidence of the child's significant connections to the new country."
Courts have interpreted that guidance as a call to "consider any
relevant factor informative of the child's connection with his or her
living environment." Silvestri v. Oliva, 403 F.Supp.2d 378, 387
(D.N.J.2005). With respect to whether the "wishes of the child"
exception applies, "[t]he Convention does not set an age at which a
child is automatically considered to be sufficiently mature, rather the
determination is to be made on a case-by-case basis." Tsai-Yi Yang, 499
F.3d at 279.
The Court noted that for the "well-settled"
exception to apply, respondent must establish by a preponderance of the
evidence that, as a threshold matter, one year or more elapsed between
the wrongful retention and the date of the petition. The wrongful
retention in this case occurred on either July 24, 2007, when petitioner
first learned of and objected to respondent's retaining child, or July
29, 2007, when child did not take the return flight to Bogota.
Petitioner filed her petition on July 29, 2008, which is at least one
year after the wrongful retention. Accordingly, the court concluded that
respondent has met his burden of proof with respect to whether the court
may apply the "well-settled" exception. To determine whether child is
well settled, the court examined the factors outlined in the case law.
Child arrived in the United States over nineteen months ago when she was
nine years old, and she was now eleven years old. Her residence has been
stable, having lived since her arrival in the same home in Wilmington
with respondent and Santiago. Her school attendance in the United States
had been regular, with child having received two awards for perfect
attendance during the 2007-2008 academic year. Moreover, child
demonstrated improved grades and English fluency and had many friends at
school. Respondent's employment was stable. Respondent and Santiago had
full-time jobs, respondent having been with his employer for three
years. While that necessitated that child attend daycare or be cared for
by Santiago's aunt, respondent was actively involved in Child's life,
assisting with homework and monitoring her television viewing and
computer usage. Respondent and Santiago also participated with child in
recreational activities, including fishing trips and ferry rides. The
court found that child's activities with respondent and Santiago, along
with her friends at school and her interactions with the members of
Santiago's family living nearby, adequately compensated for the lack of
extended family in the area and age-compatible playmates in her
neighborhood. Child's immigration status was stable. She was a permanent
resident with a "green card" and a Social Security card. Moreover,
respondent testified at the August 28, 2008 hearing that he had applied
for United States citizenship and expected, as of the time he testified,
to be sworn in as a citizen in October 2008. He testified further to his
understanding that, once he became a citizen, child would also become
eligible for citizenship. While the court found that child's status as a
permanent resident, standing alone, qualified as stable immigration
status, the court considered respondent's citizenship efforts, and his
apparent intention to make those efforts on child's behalf, as further
evidence of child's stable immigration status. Finally, child had been
able to maintain contact with petitioner. Respondent had done nothing to
conceal child's whereabouts from petitioner and, since the time that
child came to the United States, petitioner had known child's
whereabouts and address and has been able to maintain phone contact.
Considering these factors together, the court concluded that respondent
had established, by a preponderance of the evidence, that child was well
settled in her new environment.
The Court noted that the Child had expressed a
"strong and unequivocal" desire to remain in the United States, and the
court found that child was old enough and mature enough for the court to
take account of her views. Child was a bright eleven-year-old who, in
her meeting with McDonough, displayed "impressive" maturity for a girl
that age. She also demonstrated clear understanding of the meeting's
purpose and the need to be truthful in answering questions. Child
answered questions in a straightforward manner, and the record contained
no evidence that her answers were merely expressions of someone else's
opinion or otherwise the product of undue influence; McDonough reported
that child appeared neither fearful nor under duress.
Furthermore, child expressed particularized
objections to returning to Colombia, pointing out that, in Colombia, she
received little help with homework, performed poorly in school (at least
relative to her performance in the United States), was often unable to
play outside due to safety concerns, spent much of her time at home
alone, and had few friends. These particularized objections evidenced to
the court that child's desire to remain in the United States is born of
rational comparison between her life here and her life in Colombia. The
court considered a desire based on such rational comparison to be a
mature desire worth taking into account.
In this case, where child had become well
settled in the United States and had attained an age and maturity
sufficient for her desire to remain in the United States to be taken
into account, the court concluded that it was consistent with the
Convention to allow child to remain in the United States with
respondent. Accordingly, in an exercise of its discretion, the court
denied the petition.
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