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In Mero v Prieto, --- F.Supp.2d ----, 2008 WL
2331927 (E.D.N.Y.) Mero and Prieto met in 1997 in Ecuador and were
married there in 1998. Initially, Prieto lived in the United
States and visited Mero two or three times per
year. In June 1999, petitioner entered the United States through Mexico
in order to live with respondent in New York. Petitioner gave birth to
Jennifer in the United States on April 19, 2000. Respondent was
Jennifer's biological father. In October 2004, Mero learned that she had
obtained an appointment at the American Consulate in Ecuador for the
purpose of receiving
documentation that would enable her to reside
legally in the United States. Along with her son, Carlos--who was not
respondent's biological child--petitioner brought Jennifer from the
United States to Ecuador for the appointment (the "October 2004 trip").
Prieto purchased the airplane tickets for the October 2004 trip for
petitioner and her children, including Jennifer. He purchased one-way
tickets for Mero and her son, Carlos. Petitioner purchased a round-trip
ticket for Jennifer. Jennifer's ticket indicated that she was going to
return to the United States in November. However, Jennifer did not
return at that time and the ticket expired. Mero had an appointment at
the Consulate on November 22, 2004, at which she was told to obtain
additional paperwork. She had a second appointment on March 29, 2005, at
which she was informed that she could not apply for legal residence in
the United States for ten years. After petitioner's second appointment
at the Consulate, Mero agreed that Jennifer could travel to her father
in New York. On April 15, 2005, Mero executed papers, in accordance with
Ecuadorian law, authorizing Jennifer to fly to the United States with
her cousin. An English translation of the authorization states: "She
expressly authorizes her daughter the minor Jennifer Eliana Prieto Mero,
of United States nationality, to leave Ecuadorian territory and travel
on Thursday the twenty-first of April of this year to New York City,
accompanied by her cousin ... to be reunited with her father Eloy
Roberto Prieto Guerrero, a resident of the United States." The
authorization did not define the length of the trip. Prieto purchased
Jennifer a round-trip plane ticket for the purpose of this trip.
Jennifer traveled to the United States from Ecuador on April 21, 2005
(the "April 2005 trip") and, to date, has not
returned to Ecuador. The parties' central factual dispute related to the
April 2005 trip. According to Mero, she and Prieto had agreed that the
April 2005 trip was merely a vacation for Jennifer, after which she
would return to live with petitioner in Ecuador. According to Prieto, he
and Mero had agreed that the April 2005 trip was not a vacation, but
took place for the purpose of continuing
Jennifer's permanent residence in New York.
Mero filed the petition on July 2, 2007, and the Court held a conference
that day. At that conference, in addition to ordering Prieto to
surrender all of Jennifer's travel documents and other forms of
identification to the Court, the Court ordered respondent not to remove
Jennifer from the Court's jurisdiction during the pendency of the
action. The Court referred the petition to Magistrate Judge Wall on July
13, 2007 for a Report and Recommendation, who recommended that the
petition be denied. The District Court adopted the recommendation.
The District Court pointed out that in Gitter
v. Gitter, the Second Circuit set forth the requirements of a petition
brought pursuant to the Hague Convention ( 396 F.3d 124, 130-31 (2d
Cir.2005) and clarified the concept of "habitual residence":
[W]e conclude that in determining a child's
habitual residence, a court should apply the following standard: First,
the court should inquire into the shared
intent of those entitled to fix the child's
residence (usually the parents) at
the latest time that their intent was shared.
In making this determination the
court should look, as always in determining
intent, at actions as well as
declarations. Normally the shared intent of the
parents should control the
habitual residence of the child. Second, the
court should inquire whether the
evidence unequivocally points to the conclusion
that the child has acclimatized
to the new location and thus has acquired a new
habitual residence,
notwithstanding any conflict with the parents'
shared intent.
Further, the Second Circuit has confirmed that
the "parties' shared intent is 'a
question of fact to which [it] defer[s] to the
district court." ' Daunis v.
Daunis, No. 06-3518-cv, 2007 U.S.App. LEXIS
6189, at *3-*5 (2d Cir. Mar. 15, 2007)
(quoting Gitter, 396 F.3d at 132) ("review[ing]
a district court's credibility
determination regarding the parent's testimony
about their shared intent for clear
error" and affirming district court's dismissal
of Hague Convention petition). In
particular, courts considering petitions under
the Hague Convention have noted
that [t]he inquiry into a child's habitual
residence is a fact-intensive
determination that cannot be reduced to a
predetermined formula and necessarily
varies with the circumstances of each case.
This is especially true in cases ...
where the petitioning parent initially agreed
to allow the child to stay abroad
for an indefinite duration, but subsequently
had second thoughts about that
decision. These cases ... generally have no
clear answer and are very
fact-dependent.
The testimonial and documentary evidence in
this case
demonstrated that Mero and Prieto fully
expected, at the time of the October 2004
trip, that petitioner would receive permission
from the Consulate to return to the
United States with Jennifer. At the same time,
the record fails to indicate that
Jennifer's parents had made plans regarding
Jennifer's residence should Mero be
unable to return to the United States. The
Court therefore agreed with Magistrate
Judge Wall that Mero's and Prieto's shared
intention at the time of the October
2004 trip was simply that Mero would return
with Jennifer to reside in the United
States. At the April hearing, Prieto explained
that at the time of the October 2004 trip,
he and Mero expected and intended that
petitioner would succeed at the Consulate
and return to live in the United States with
Jennifer. Moreover, at the October hearing, Mero personally corroborated
Prieto's testimony. Various facts adduced from the testimonial and
documentary evidence also demonstrated that Mero and Prieto expected
that petitioner and Jennifer would to return to the United States after
their trip to Ecuador. For instance, on October 22, 2004--immediately
prior to the October 2004 trip--Mero brought Jennifer to the
pediatrician. The doctor's notes from that visit state: "Here for shots,
she will be leaving tomorrow to Ecuador. To get mom green card, she will
be staying 2 month." In addition, as Mero admitted at the April hearing,
petitioner and respondent had "just bought" a home in New York prior to
the October 2004 trip. Finally, Jennifer left many of her possessions
behind in New York and brought only some clothes, two dolls, and a
suitcase with her to Ecuador. These facts supported Prieto's testimony
that both he and Mero intended petitioner and Jennifer
to return to the United States. In the course
of its de novo review, the Court found no persuasive evidence tending to
demonstrate that Mero or Prieto anticipated that the October 2004 trip
could lead to Jennifer's permanent residence in Ecuador. In light of
Mero's own testimony at the October hearing and the additional facts the
Court agreed with Magistrate Judge Wall that Mero and Prieto both
expected petitioner to return to
the United States with Jennifer at the time of
the October 2004 trip, and that the
parents did not form a shared intent regarding
Jennifer's residence if Mero failed
at the Consulate.
The Court agreed with Magistrate Judge Wall
that Mero failed to prove by a preponderance of the evidence that by the
time of the April 2005 trip, both she and Prieto intended Jennifer to
reside in Ecuador. The Court concluded that, at the time of the April
2005 trip, Mero and Prieto continued to share the intention that
Jennifer reside in the United States. The Court arrived at this
conclusion after personally observing the testimony both of Mero and
Prieto, and carefully reviewing the record de novo. The Court found that
the record failed to corroborate petitioner's testimony, but wholly
corroborated that of respondent.The Court found that Prieto's testimony
that Mero intentionally sent Jennifer to reside in the United States was
fully supported by the key documentary evidence in the case, including
the travel authorization Mero executed and Jennifer's medical records.
In stark contrast to Prieto's assertions, which were supported by the
record, the Court reviewed Mero's testimony indicating that both she and
Prieto intended for Jennifer to reside in Ecuador at the time of the
April 2005 trip, and found that petitioner's testimony was wholly
uncorroborated and not credible. Mero has failed to meet her burden to
demonstrate shared intent by a preponderance of the evidence. After
conducting a de novo review of the question of the parties' last shared
intent, the Court concluded that Mero and Prieto's shared
intent--immediately before the April 2005 trip--was for Jennifer to
reside permanently in the United States.
Although "[n]ormally the shared intent of the
parents should control the habitual residence of the child," a court
should also "inquire whether the evidence unequivocally points to the
conclusion that the child has acclimatized to the new location and thus
has acquired a new habitual residence, notwithstanding any conflict with
the parents' shared intent." Gitter, 396 F.3d at 134. Here, Magistrate
Judge Wall conducted this requisite analysis regarding acclimatization,
and held that although the evidence suggests that Jennifer lived
comfortably in Ecuador with her mother for six months, it did not point
"unequivocally to the conclusion that the child has become acclimatized
to [her] new surroundings and that [her] habitual residence has
consequently shifted." Gitter, 396 F.3d at 133. Because Mero did not
specifically object to this holding, the Court reviewed it for clear
error, and concluded that Magistrate Judge Wall did not so err. Even
under a de novo standard of review, the Court reached the same
conclusion. The Court agreed with Magistrate Judge Wall that the
following factors, taken together in the context of the entire record,
demonstrated Jennifer's failure to acclimatize under Gitter: (1)
Jennifer lived in Ecuador for less than six months; (2) Jennifer was
very young during her visit to Ecuador; (3) Jennifer did not attend
school in Ecuador, although she attended school in the United States
both before and after her trip to Ecuador; and (4) Jennifer had left
many of her possessions behind in New York and brought only some
clothes, two dolls, and a suitcase with her to Ecuador.
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