In Ordon Ez v. Tacuri, 2009 WL 2928903 (E.D.N.Y. 2009) Angela Rosa Bonilla Ordonez ("Bonilla") filed a petition against her husband, Claudio Hernan Sinchi Tacuri ("Sinchi"), seeking the return to Ecuador of their three-year-old son, James Hernan Sinchi Bonilla ("James"), who was residing with Sinchi in Queens, New York. The Court held a hearing. Bonilla's sister Gladys Maria Bonilla Ordonez ("Gladys") and Bonilla herself testified on Bonilla's behalf via video link from Ecuador. Bonilla was a 32-year-old native-born citizen of Ecuador. She lives in Tena, Napo Province, Ecuador. Bonilla had three sons. The youngest, James, age 3, with whom this litigation was concerned, was fathered by Sinchi; James was born in the United States and is an American citizen. Bonilla's two elder sons, ages 14 and 10, had a different father; they are Ecuadorian citizens and currently live with Bonilla in Ecuador. Sinchi lived in Queens, New York. He as born in Ecuador and, since 2004, had been a dual citizen of Ecuador and the United States. He had no children other than James. Bonilla and Sinchi met in Ecuador in 2001 and became romantically involved. Abouta month later, Sinchi left Ecuador for the United States. Bonilla came to the United States illegally to live with Sinchi in April of 2002. James was born in the United States on January 6, 2006. At some point during the first part of 2006, Bonilla heard that her two elder sons were being mistreated by their stepmother in Ecuador. Therefore, in August 2006, when James was eight months old, Bonilla and Sinchi, along with James, traveled together to Ecuador to attend to Bonilla's two elder sons. Bonilla and Sinchi also intended to marry while in Ecuador so that Sinchi could sponsor Bonilla and her two elder sons for American citizenship. When they left Queens, they brought with them only two pieces of luggage per person; the remainder of the family's belongings, including James's belongings, was stored in their landlord's garage. About two weeks after their arrival in Ecuador, Bonilla and Sinchi were married. On September 26, 2006, Sinchi returned alone to the United States; Bonilla remained in Ecuador with James, pursuing custody of her two elder sons and waiting for Sinchi to sponsor her and her two elder sons' citizenship applications. On November 17, 2006, while in the United States, Sinchi initiated the citizenship applications. In December 2006, Sinchi briefly returned to Ecuador and, in January 2007, with Bonilla's consent, took James, then one year old, back to the United States. Eight months later, in September 2007, Sinchi and James returned to Ecuador. Shortly after Sinchi arrived, he learned that Bonilla had been unfaithful to him and their relationship grew sour. Before then, Sinchi had intended to process the citizenship applications with dispatch; afterwards, he lost interest in doing that. On October 17, 2007, Bonilla was granted full Ecuadorian custody of her two elder sons. Four days later, on October 21, 2007, Sinchi and James returned to New York; James remained here ever since. In November 2007, Bonilla's sister Gloria left Ecuador and entered the United States illegally; soon thereafter, Gloria and Sinchi became romantically involved. At some point toward the end of 2007, Bonilla realized that Sinchi could not be relied upon to process and support the citizenship applications for her and her two elder sons. In or about February 2008, Bonilla filed a court proceeding in Ecuador against Sinchi and on March 11, 2008, secured an Ecuadorian judgment ordering Sinchi to "turn over [James] forthwith. On April 15, 2009, she filed this action.

The only element of Bonilla's Hague Convention burden at issue was whether James "was habitually resident in [Ecuador]" at the time he was removed to the United States on October 21, 2007. The court noted that although neither the Hague Convention nor its implementing legislation defines 'habitual residence.' " Villegas Duran v. Arribada Beaumont, 534 F.3d 142, 147 (2d Cir.2008) the Second Circuit has counseled as follows: "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 [a] new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents' latest shared intent. Villegas Duran, 534 F.3d at 147 (quoting Gitter, 396 F.3d at 134). The parties' intent is "a question of fact in which the findings of the district court are entitled to deference...." Gitter, 396 F.3d at 133. It was undisputed that before Sinchi and Bonilla heard in 2006 that Bonilla's two elder children in Ecuador were being mistreated, both parties intended that James live permanently and be raised in the United States. Sinchi argued that he never changed this intention and, therefore, that the parties' last shared intent was that James live and be raised in the United States. By contrast, Bonilla argued that the parties' last shared intent was conditional--i.e., that once she and Sinchi decided to travel to Ecuador in August 2006, they "agreed that [James] would stay in Ecuador [unless and ] until [Bonilla] and her two [elder] sons could come to and live in the United States legally." According to Bonilla, Sinchi's securing American citizenship for Bonilla and her two elder sons was an agreed-upon "condition precedent to [James's] living in the United States." Since this condition never came to pass, Bonilla argued that the parties' conditional intent that James be raised in the United States was never triggered and that, under these circumstances, Ecuador was the residence of last shared intent.  In examining the "shared intent ... to fix the child's residence," a court should consider "whether the child's presence at a[new] location is intended to be temporary, rather than permanent." Gitter, 396 F.3d at 132. As now-Chief Judge Kozinski of the Ninth Circuit has noted, the mere fact that both parents intended their child to be in a particular place for a period of time does not make that place the child's "habitual residence". Mozes v. Mozes, 239 F.3d 1067, 1075 (9th Cir.2001). The Court credited Sinchi's trial testimony and accepted the first interpretation of his deposition testimony--that he intended James's sojourn in Ecuador to be temporary, and never intended that James would abandon the United States as his habitual residence. Because of her inconsistent testimony, the Court found Bonilla not credible on the matter of her contemporaneous intent. The Court found that when the parties left for Ecuador both agreed that James would stay in Ecuador temporarily for a period of time reasonably necessary for Bonilla to gain custody of her elder two sons and for Sinchi to pursue their United States citizenship. Neither party envisioned James remaining in Ecuador permanently under any conditions; rather, both parties intended that, after this reasonable period of time had elapsed, James would return to the United States to be raised, and that the entire family would also come to the United States to live--legally if possible, but illegally if necessary. At some subsequent time, the parties' marriage fell apart, and Bonilla changed her mind. This change may well have been justified--but the Hague Convention analysis does not turn on why the parties' intentions diverged. Determining the parties' last shared intent is not always the end of the habitual-residence analysis, as "the child [may become] acclimatized to [the] new location and thus ... acquire[ ] a new habitual residence, notwithstanding any conflict with the parents' latest shared intent." Villegas Duran, 534 F.3d at 147; see Gitter, 396 F.3d at 134 ("Even when there is no [shared] intent on the part of the parents to abandon the child's prior habitual residence, courts should find a change in habitual residence if the objective facts point unequivocally to a person's ordinary or habitual residence being in a particular place." (quoting Mozes, 239 F.3d at 1081). However, "courts should be 'slow to infer' that the child's acclimatization trumps the parents' shared intent," lest they "open children to harmful manipulation when one parent seeks to foster residential attachments during what was intended to be a temporary visit." Id. (quoting Mozes, 239 F.3d at 1079). "The question ... is not simply whether the child's life in the new country shows some minimal degree of settled purpose, but whether we can say with confidence that the child's relative attachments to the two countries have changed to the point where requiring [the child to live in the place of last shared intent] would now be tantamount to taking the child out of the family and social environment in which its life has developed." Id. (quoting Mozes, 239 F.3d at 1081) (internal quotation marks omitted); see also Holder v. Holder, 392 F.3d 1009, 1019 (9th Cir.2004) ("[T]he inquiry is ... whether the children's lives have become firmly rooted in[the country that is not the place of last shared intent]."). Thus, acclimatization may only trump shared intent "[i]n [the] relatively rare circumstances ... [where] the child's acclimatization to the location abroad [is] so complete that serious harm to the child can be expected to result" if the child were to live in the place of last shared intent. Gitter, 396 F.3d at 134. Here, James had spent sixteen months in the United States at the time Sinchi brought him back to the United States permanently in October 2007; by contrast, James had spent only eight months in Ecuador at that time. Moreover, James was less than two years old at the time he was removed to the United States; on account of his tender age, he was presumed not to have formed any strong attachments to Ecuador. See Whiting v. Krassner, 391 F.3d 540, 548 (3d Cir.2004) ("[W]here a child is very young it would, under ordinary circumstances, be very difficult for him ... to have the capability or intention to acquire a separate habitual residence ."); Holder, 392 F.3d at 1020-21 (noting that the "age [of the child] is relevant to the acclimatization analysis" and finding that the "infant's limited time in Germany [did not] so firmly embed[ ] his life there that his habitual residence shifted overseas despite the lack of shared parental intent"). The Court could not find that James had become acclimatized to life in Ecuador "so complete[ly] that serious harm ... can be expected to result" if James continues to live in the place of the parties' last mutual intent--i.e., the United States. Unlike a state court, however, this Court had no warrant to award Bonilla custody or visitation rights. Its only role was to determine James's habitual residence. Having determined that to be the United States, the Court denied Bonilla's petition to return James to Ecuador.