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In Bustamente v Serrano-Figueroa, 207 F.Supp.2d 1205 (D. Colorado,,
2002) the ex-wife filed a petition under the Hague Convention on
International Child Abduction for the return of her child to Mexico
following the ex-husband's alleged wrongful detention of child in United
States. The District Court held that child's residence in United States
for six months prior to the ex-husband's removal of the child from the
apartment where child was living with the ex-wife resulted in a change
of the child's habitual residence from the child's previous residence in
Mexico, to the United States, and alternatively, if the date that the
ex-wife asked the ex-husband to return the child to Mexico and he
refused was the date of the ex-husband's alleged wrongful retention of
the child, the ex-wife subsequently acquiesced in the child's retention.
The ex-wife allowed the child to cross the border into the United States
with the ex-husband's new wife, sent the child with his passport, birth
certificate and immunization record, and subsequently joined him in the
United States. The ex-wife and ex-husband had an agreement that the
child would live with the ex-wife at an apartment in the United States
for at least the foreseeable future. He lived at the apartment for at
least five months during which he attended kindergarten and participated
in all of the activities central to the child's life.
For purposes of determining a child's habitual residence under the
Hague Convention on International Child Abduction, where the duration of
a young child's stay in a foreign country is intended to be indefinite,
the habitual residence of a child is usually in that foreign country.
For purposes of determining a child's habitual residence under the Hague
Convention where the child's stay is intended for a limited, distinct
period of time, courts are reluctant to find that a new habitual
residence has been established. If the date that the ex-wife asked the
ex-husband to return the child to Mexico and he refused was date of
ex-husband's alleged wrongful retention of child, ex-wife subsequently
acquiesced in child's retention by coming to United States and living
with child for period of five months before changing her mind, so as to
support denial of ex-wife's petition under Hague Convention. The ex-wife
moved into an apartment, began volunteering at the child's school,
received prenatal care and prepared for the arrival of another child.
She told no one that the child was being retained against her will, she
took no steps to secure return of child, and she said nothing about
returning to Mexico after the child was born.
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