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In
De Vasconcelos v De Paula Batista, 2011 WL 806096 (E.D.Tex.) on November
15, 2010, Petitioner Eduardo Henrique Medeiros Pinto de Vasconcelos
filed this action seeking the return of his daughter ("BV"), to Brazil.
On December 10, 2010, BV's mother, Michelly de Paula Batista, Respondent
filed her answer to the petition. The Case was assigned to a Magistrate
Judge to report and recommend disposition.
The Magistrate found that BV was born in Brazil
in 1997. Petitioner and Respondent were never married. In 2005,
Respondent and BV came to the United States. From 2005 until January
2011, Respondent and BV resided in Denton County, Texas with Rod
Richards, Respondent's husband. In January 2011, Respondent, her
husband, and BV moved to Pennsylvania. Since BV left Brazil in 2005, she
had essentially no contact with her father and had not seen him since
leaving Brazil. According to Petitioner's testimony, he had a close
relationship with his daughter, picked her up from school on a daily
basis, and saw her regularly. According to Respondent, Petitioner was
abusive toward her, showed little interest in being a father to BV, and
only saw his daughter sporadically. Petitioner claimed that, while he
initially agreed that Respondent could take BV to the United States for
Respondent's wedding and while he signed her passport, he later withdrew
his consent for BV to travel to Texas. Petitioner further alleged that
Respondent deceived Brazilian governmental officials in order to remove
BV from the country. Invoking her rights against self-incrimination,
Respondent offered very little in response to Petitioner's allegations
as to her conduct in removing BV from Brazil.
The Court noted that several of the documents
submitted by Petitioner at the hearing were in Portugese. Of those
documents that were translated, none were certified translations and
much was left to speculation as to the meaning of such documents. While
the provisions set forth in 42 U.S.C. 11605 may absolve the parties from
certain authentication requirements during proceedings under the Hague
Convention, it does not absolve them from providing the Court with
accurate English translations.
The Court found that Petitioner was exercising
whatever rights he had and attempting to have a relationship with his
daughter while she was in Brazil. Thus, Petitioner satisfied two of the
prongs of his burden and the Court's focus turned to whether he had
custody rights.
Petitioner offered copies of a Brazilian Court
order he claimed gave him custodial rights, including the right to
determine BV's place of residence. It was highly disputed whether this
order conferred access rights or custody rights. The English translation
provided by Petitioner indicated that, under that order, Petitioner was
to pay certain child support and costs associated with BV's education.
The order also provided that "the minor's father's right to visit, the
author, will be biweekly, apart from previous reciprocal contact."
Petitioner argued that the United States Supreme Court's opinion in
Abbott v. Abbott directs this Court's decision here. The Court
disagrees. In Abbott v. Abbott, the Supreme Court held that ne exeat
rights are sufficient to confer rights of custody under the Hague
Convention's provisions. Abbott v. Abbott, --- U.S. ----, 130 S.Ct.
1983, 176 L.Ed.2d 789 (2010). Ne exeat rights involve one parent's right
to consent before the other parent takes the child to another country.
Id. at 1987. Unlike the petitioner in Abbott who showed that Chilean law
granted him a right to decide his child's country of residence,
Petitioner here had not established that he had any ne exeat rights as
to BV under Brazilian law. Petitioner failed to present sufficient
evidence at the hearing to show how the order pertaining to visitation
also conferred on Petitioner the right to determine BV's country of
residence. Petitioner did offer testimony to indicate that Respondent
initially sought his approval to take BV to Texas and even signed BV's
passport, suggesting he may have had some rights in determining where BV
would live or travel. However, without legal documents setting forth
such rights, whether Petitioner had sufficient rights to trigger the
Hague Convention's return remedy is not wholly settled. The Court found
that there was insufficient evidence before it to find Abbott applicable
to these facts.
Petitioner's evidence and arguments regarding
the legal interpretation of the Brazilian court's order lacked
specificity for the Court to determine whether a custody order was in
place giving him custodial rights. On the other hand, although it was
not her burden to do so, Respondent did not provide the Court with any
Brazilian order that clearly granted her sole custodial or ne exeat
rights, leaving open the possibility that the matter of custody was
never adjudicated in Brazil. And, the Hague Convention's provisions on
wrongful removal do provide protection to parents seeking return where
the parties' legal rights have not been legally established by order or
agreement. (Citing Van Driessche, 466 F.Supp.2d at 844-45 ("without
fully adjudicating the merits of the custody dispute [parents] have
equal rights of custody prior to a decree adjudicating custody."). The
court was not convinced that Petitioner sustained his burden in showing
that the rights conferred upon him were custodial in nature.
Nonetheless, because there was some governing authority to indicate that
he might still be afforded some rights under the Hague Convention, the
Court, for purposes of its findings assume he had. Nonetheless, the
Court did not need to make a determination as to wrongful removal to
find that BV should remain in the United States.
Even assuming arguendo that Petitioner had
shown by a preponderance of the evidence that he had custody rights and
that BV was taken from Brazil in violation of those rights--which the
Court found could not be settled without a more thorough presentation on
Brazilian law and Petitioner's specific rights thereunder--the Court
found that several exceptions to removal applied.
Even if a child is determined to have been
wrongfully removed, when an action for return of a child is commenced
more than one year after the removal of the child and the child has
become "well-settled" in her new environment, the Court is not required
to order the return of the child. See art. 12. The Court found that BV
was well-settled in the United States. (Citing Van Driessche, 466
F.Supp.2d at 847-48 (finding well-settled exception applied where six
year-old child had been continually residing in Houston for two-thirds
of her life); Edoho v. Edoho, 2010 WL 3257480, 4 (S.D.Tex.2010);
(applying well-settled exception where children had lived in Houston for
almost two years, lived close to extended family, participated in
activities and church, and attended school). Further, there was no
evidence or argument offered at the hearing that Respondent took any
actions to actively conceal BV's whereabouts.
According to the testimony presented,
Petitioner knew the address where BV lived with her mother and
stepfather for more than five years. And, Petitioner had access to an
email address and phone number where BV or Petitioner could be reached.
Well more than one year had elapsed since removal, and BV was now
well-settled in this country; thus, the exception set forth in Article
12 of the Hague Convention applies and removal was not appropriate.
The Court also observed that the Hague
Convention also permits the Court to refuse to return a 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 her
views. art. 13. BV remained in chambers during the hearing and was
represented by an attorney ad litem during the proceedings. At the close
of the parties' cases, the Court questioned BV in camera. The attorney
ad litem was present for this questioning and given the opportunity to
question her client. The Court found it was appropriate to take into
account BV's views here. Although soft-spoken and understandably shaken
by the prospect of leaving the United States, she demonstrated an
understanding of the proceedings and of her right to state her
preferences. She was a good student, demonstrated clear cognitive
abilities, and stated a desire to remain with her mother and stepfather.
The Court found that that her wishes were another basis to deny
Petitioner's request for her return to Brazil. The Court found that even
if there were wrongful removal here, Respondent satisfied the
well-settled and age and maturity exceptions outlined in the Hague
Convention and held that the Petition for Return of Child should be
denied.
It found that pursuant to 42 U.S.C. 11607,
Petitioner should be required to bear the costs incurred by the Court in
hearing the action, including the cost of the court-appointed
interpreter in the amount of $388.00 and the court-appointed guardian ad
litem in the amount of $1,176.27. 42 U.S .C. 11607(b)(2) ("Petitioners
may be required to bear the costs of legal counsel or advisors, court
costs incurred in connection with their petitions....); 28 U.S.C.
1920(6) (court may tax as costs the fees of interpreters and experts);
see also Gaddis v. U.S., 381 F.3d 444, 455 (5th Cir.2004) (guardian ad
litem fees can be taxed as costs). It observed that failure to file
written objections to the proposed findings and recommendations
contained in this report within fourteen days after service would bar an
aggrieved party from de novo review by the district court of the
proposed findings and recommendations and from appellate review of
factual findings accepted or adopted by the district court except on
grounds of plain error or manifest injustice. (Citing Thomas v. Arn, 474
U.S. 140, 148, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Rodriguez v. Bowen,
857 F.2d 275, 276-77 (5th Cir.1988).
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