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In Pesin v Osorio Rodriguez, 77 F.Supp.2d 1277 ( S.D.
Florida, 1999) the Father filed a petition under the Hague Convention
seeking the return of the parties' minor children, which the wife had
allegedly wrongfully retained. The District Court held that Venezuela
was the children's "habitual residence"; the father was "exercising
custody rights" at the time of the children's retention; and the father
did not acquiesce in the wrongful retention of the parties' minor
children. To establish a prima facie case of wrongful retention under
the Hague Convention, the father bore the burden of proof to show by a
preponderance of the evidence that the habitual residence of the
children "immediately before" the date of the alleged wrongful retention
was Venezuela, and the retention was in breach of custody rights under
Venezuelan law, and he was exercising custody of the children at the
time of their alleged wrongful retention. The Children's 23-day stay in
Florida immediately prior to their alleged wrongful retention was not
sufficient to establish their "habitual residence" in the United States
for purposes of the Hague Convention. The parents' settled purpose of
their family trip to Florida was, as planned, a family vacation finite
in its duration. The parties had packed for only a temporary visit,
rather than a permanent move, and the children were enrolled for the
entire school year in a Venezuelan school immediately before their
retention. Habitual residence can be altered only by a change in
geography which must occur before the questionable removal and the
passage of time, not by changes in parental affection and
responsibility. The mother's retention of the children in Florida after
the father returned from the family's Florida vacation breached the
father's custody rights under Venezuelan law. A Parent "exercises
custody rights" within meaning of the Hague Convention whenever a parent
with de jure custody rights keeps, or seeks to keep, any sort of regular
contact with his or her child. If a person has valid custody rights to a
child under the law of the country of the child's habitual residence,
that person cannot fail to "exercise custody rights" under the Hague
Convention short of acts that constitute clear and unequivocal
abandonment of the child. The father did not unequivocally abandon his
custody rights to the parties' children, but rather was "exercising
custody rights" at the time of their retention. The father, though
sleeping in a different residence from his wife and the children while
vacationing in Florida, visited the children each morning, had dinner
with them each evening, and stayed with them in Aruba, and maintained
regular contact with the children through daily phone calls, visits
every two or three weeks, and several vacation trips after he returned
to children's habitual residence in Venezuela.
Once a petitioner establishes that wrongful retention
has occurred under the Hague Convention, the children must be returned
unless respondent establishes the affirmative defense that: (1) the
proceeding was commenced more than one year after the removal of the
child; (2) the children have become settled in their new environment;
(3) the person seeking return of the child consented to or subsequently
acquiesced in the removal or retention; or (4) there is a grave risk
that the return of the children would expose them to physical or
psychological harm. Acquiescence under the Hague Convention requires
either an act or statement with the requisite formality, such as
testimony in a judicial proceeding, a convincing written enunciation of
rights, or a consistent attitude of acquiescence over a significant
period of time. Acquiescence under the Hague Convention is a question of
subjective intent. The father did not acquiesce in the wrongful
retention of parties' minor children in the United States so as to
preclude his claim under the Hague Convention. The father's tuition and
monthly stipend payments to his wife and his transfer of the children's
clothing to Florida did not demonstrate his unequivocal intention to
acquiesce, but rather, illustrated his singular intention to reconcile
his marriage.
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