The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
Case No.: 1:23-cv-20581-PAS
ADEL JOSE SABBAGH SOTERANO
Petitioner,
v.
LUISELENA OROPEZA APONTE
Respondent.
ee
ORDER ON PETITION FOR RETURN PURSUANT
TO THE HAGUE CONVENTION
THIS MATTER is before the Court on a Verified Petition to Return Children to
Venezuela, pursuant to the Hague Convention of the Civil Aspects of International Child
Abduction (“the Convention”), and the International Child Abduction Remedies Act
(ICARA”), 22 U.S.C. § 9001 et seq. Petitioner, Adel Jose Sabbagh Soterano, (“the Father”)
seeks the return of his son A.S.O. and his daughter R.S.O (collectively “the Children”) to
Venezuela. DE 1. The Father alleges that the Respondent Luiselena Oropeza Aponte (“the
Mother”) wrongfully removed the Children. Jd. The Father asserts that he was exercising
custodial parental rights under Venezuelan law and the Convention and ICARA mandate
the immediate return of his Children. Jd. The Mother argues one of the Hague Convention
exceptions apply, specifically that the Father was not exercising custodial rights, that the
Children would be at risk of harm if they were to return, or because the Father’s filing is
untimely, the Children are well-settled and object to returning to Venezuela. DE 17 at 4-7.
The Court conducted a three-day evidentiary hearing from April 10, 2023 and
through April 12, 2023. in which both sides presented testimony! and evidence, as well as
1 At the three-day evidentiary hearing, the Mother, the Father, Dr. Miguel Firpi, a qualified child
psychologist, and Dr. William Rafael Medina, a Venezuelan legal expert, testified.
in camera discussion? with the Children. The Court also conducted a status conference on
April 19, 2023 following the Mother’s April 18, 2023 immigration hearing. The Court
considered the parties’ pleadings, exhibits, testimony, arguments, proposed findings of facts
and conclusions of law [DE 46; DE 47], the in camera discussion with the Children, and the
parties’ joint expert’s evaluation of the Children. The expert’s evaluation of the Children
was stipulated to and submitted into evidence as Exhibit S.
I. FINDINGS OF FACT
a. The Parents’ Relationship
The Children in this matter are the result of the Father’s extramarital affair and
have never lived with their parents as a family. The Father and Mother are both from
Barquisimeto, Venezuela and have known each other for more than twenty years. DE 42 at
104:15; DE 43 at 92:11-13. The Father is fourteen years the Mother’s senior. DE 43 at
92:15. The Father is a businessman,? and the Mother worked in her father’s business in
Venezuela. Ex. S at 3. The Father and Mother began an intimate relationship in 2004
which lasted about a year when the Mother was about twenty-one years old. DE 42 at □
104:18; DE 43 at 93:14 — 94:4-5. The Father does not have children with his wife with
whom he has been in a relationship with for about thirty-five years and married in 2008 or
2009. DE 42 at 104:20-22; DE 43 at 94:15. Despite the Father’s marriage, the Mother and
Father began a more “formal” relationship in 2010. DE 43 at 94:10. The parents never
2 Dr. Firpi was present at the in camera discussion. A.S.O. is very comfortable speaking in English.
A Spanish interpreter assisted the Court when communicating with R.S.O., who is more shy about
speaking in English. However, R.S.O. became more comfortable as the discussion continued.
3 The Father testified that he used to have a furniture and household appliance store which he had
to close down. DE 42 at 125:23 — 126:5. The Father testified that he is currently self-employed in the
same line of work. Id. However, it is unclear from the record what exactly the Father does currently,
because he only testified to what he used to do for work, specifically buy home appliances from
Miami, Florida that he would ship to Venezuela. Id. at 126:12-22. The Father does not frequently
travel to the United States anymore. Id.
lived together when they both resided in Venezuela. Ex. S at 3. The Mother always lived
with her parents. Ex. § at 3; DE 43 at 96:22-23.
Their first child, R.S.O., was born in 2014. DE 31 at 6. Their second child, A.S.O.,
was born in 2016. Id. There is no dispute that they are the natural parents of the Children.
Id. at 4. Under Venezuelan law, unmarried parents living in separate households have
equal parental rights and responsibilities. DE 43 at 78:11-14.
The parents’ relationship experienced many ebbs and flows. There is no evidence to
suggest that the parents’ relationship status impacted the Father's time or contact with the
Children. However, if the Father was “unhappy” with the Mother, he would refrain from
bringing groceries and other items to the Children. DE 43 at 101:23-25. The relationship
between the two became increasingly more tense and the Father became verbally abusive
with the Mother. DE 44 at 75:17. The maternal grandmother forbade the Father from
entering their home in Barquisimeto because of how poorly the Father treated the Mother.
Ex. S at 7. The Father installed a GPS tracking device on the Mother’s car in 2012 without
her knowledge. DE 43 at 9:2-5. The Father testified that the tracking device was for
“safety.” DE 42 at 174:20-21. However, the Mother believed it was the Father's attempt at
controlling her whereabouts. Ex. S at 8. The Father would appear at locations where the
Mother already was and would ask who she was with. DE 44 at 10:20-22. At one point, the
Father sent the Mother a picture of various guns, and told the Mother he understood why a
man would kill his partner. Jd. at 17:8-10; 91:5-8. The Mother became fearful that the
Father would kill her. Id. at 91:7-8. A few months before the Mother and Children left
Venezuela, she and the Father were no longer in a relationship. Id. at 91:15.
b. Children’s Life in Venezuela from 2014 to 2021
The Children were both born in Barquisimeto, Venezuela and lived there until
around July 8, 2021. DE 31 at 6; DE 46 at § 3; DE 47 at 2. In Venezuela, the Children
always lived with their Mother and their maternal grandparents. DE 43 at 102:21-23. The
Father materially supported the children by paying for food, clothing, school, health
insurance, and after school activities. DE 46 at { 5. The Children saw their Father
frequently. The Father took A.S.O. to baseball practice a few times. DE 42 at 60:7-11. The
Mother took A.S.O. to baseball practice most of the time. Ex. S at 6. The Father took the
Children horseback riding once. DE 42 at 60:7-11. The Children were too young to
participate in other extracurricular activities. Id. at 124:20-22. The COVID-19 pandemic
also limited the types of activities the Children could participate in. Id. at 41:3-10.
The Mother dropped off the Children at school every day. DE 44 at 7:2-4. The Father
would pick the Children up from school, but not every day. DE 42 at 125:17. When the
Children spent time with their Father after school, it was usually spent at the Father's
apartment or their paternal grandmother’s home. Jd. at 109:25-120:2. When the Children
were with their Father, he cooked for them, bathed them, and spent quality time with
them. DE 44 at 65:24. The Father did not help the Children with their homework. Ex. S at
23. The Children always returned to their Mother’s house around 8:00 or 9:00 p.m. DE 42
at 171:18. The Children stayed with their paternal grandmother for one week when the
Mother went to Caracas, Venezuela, and in that timeframe the Father only spent two □
nights with the Children. Ex. S at 6. Other than that occasion, the Children never spent an
overnight with their Father. Id. The Father never sought to formalize a custody
arrangement with the Mother, and was in agreement with the way the time was spent
when the Children were in Barquisimeto. DE 42 at 172:6-16.
The Father’s apartment where he spent time with the Children is not his home
where he lives with his wife. Id. at 167:6. The Children did not have any personal
belongings in the Father’s home. Id. The Children have never stepped foot inside their
Father’s marital home. DE 46 at 4 11. The Children have never met their Father’s wife—
not in Venezuela, nor during the three-day evidentiary hearing in Miami, Florida, although
the Father’s wife travelled to Florida during the pendency of this matter. Instead, the wife
went to Orlando, Florida to be with her family. DE 42 at 156:19-25. The Father explicitly
asked his wife not to attend the in-court hearings “to avoid any sort of issues.” Id. at 157:4-
6. The Father recognizes that his Children do not have a relationship with his wife. Id. at
160:6-11. The Father never entertained divorcing his wife. DE 45 at 6:13-16. In fact, the
Father believes that the Mother removed the Children from Venezuela because he refused
to divorce his wife. Ex. S at 4. The Father, however, disallowed the Mother from pursuing
romantic relationships outside of their relationship, “because she was in a relationship with
me.”4 DE 42 at 181:2-19. The Mother admitted that she wanted the Father, the Children
and herself to live together as a family. DE 44 at 69:18-24.
c. The Mother and Children go to the United States
On June 17, 2021, the Mother purchased airline tickets for herself and the Children
to fly to Mexico through Panama for the stated reason of going on vacation from July 8,
2021 until July 23, 2021. DE 44 at 24:7-10; DE 46 at § 12. The Mother needed an executed
and court-approved travel authorization permit to take the Children to Mexico. DE 44 at
24:18. Under Venezuelan law, both parents must consent to their children’s travel outside
of Venezuela. DE 43 at 67:14-15. The Mother did not speak to the Father regarding the
travel authorization permit, nor did she tell the Father about the upcoming travel. DE 44 at
30:12; 57:10-17. The Mother hired an attorney to prepare the travel documents. Id. at
24:21-22. The Mother provided the attorney with the Father’s information, the dates of
travel, the Children’s birth certificates, her identification, and the Father’s identification to
prepare the travel authorization permit. Id. at 25:14 — 26:25. The Mother picked up the
4 The Father further testified, “If [the Mother] has a relationship with me, I’m going to allow her to
go out with another guy? How would that work?” DE 42 at 180:22-23.
executed travel authorization permit at the attorneys’ office. Id. at 27:16. The executed
travel authorization permit was filed with a Venezuelan court on June 22, 2021. DE 1-8;
DE 42 at 133 at 18-19. The Father denies signing any travel documents authorizing the
travel. DE 42 at 184:14.
The Mother left her home in Barquisimeto on July 6, 2021 after her home was shot
at and graffitied with a threatening message due to her political activities. DE 44 at 33:10-
15. The Mother took the Children to her brother-in-law’s home out of fear of retaliation. Id.
at 33:12-14. The Mother returned briefly to her home to retrieve some clothing. Jd. at 33:18.
As such, the Children’s last day in their Barquisimeto home was July 6, 2021. The Mother
did not tell her own mother that she was leaving Venezuela. Ex. S at 9.
The Mother and Children did, in fact, leave Barquisimeto to travel to Mexico
through Panama on July 8, 2021. DE 44 at 34:16-22. While in Mexico, the Mother decided
to cross the border into the United States of America with the Children. DE 44 at 34:23 —
35:2. The Mother and the Children entered the United States by crossing the Rio Grande
through Texas on July 11, 2021. Id. at 35:16; 114:10-11. The Mother lost her phone during
the crossing. Id. at 37:5-10. They spent two nights at a United States’ border patrol shelter
before being transported to a family shelter in Texas. Id. at 35:18-25. They were in the
family shelter for twelve days, when the United States Citizenship and Immigration
Services contacted the Mothevr’s sister, who purchased the tickets for the Mother and
Children to fly to Miami, Florida. Id. at 36:11-14. The Mother and Children arrived in
Miami on July 23, 2021. Id. at 36:17. The Children communicated with their Father a few
days after arriving in Miami. Id. at 38:25. The Children have maintained contact with
5 The Mother testified to being affiliated with a political group that opposes the Venezuelan
government. DE 44 at 19:22 — 21:6. As “an opposition member,” the Mother attended demonstrations
and worked at the local voting center. Id.
their Father since arriving in Miami. DE 42 at 42:8-11. There is no evidence to suggest the
Mother has attempted to conceal the Children’s location, nor has she inhibited
communication between the Father and the Children.®
d. The Father’s Actions after the Children’s Removal
The last day the Father saw his Children was on July 4, 2021, when they celebrated
R.S.0.’s seventh birthday. DE 42 at 127:23-25. The Mother did not speak to the Father
regarding the travel at the birthday party. DE 44 at 57:10-17. On July 7, 2021, the
maternal great-grandmother called the Father asking where the Mother and Children
were. Id. at 129:10-16. It was at that moment that the Father learned that his Children
left Barquisimeto. Id. In the days after the Mother and the Children left, the Father spoke
on the phone with A.S.O., who said they would return “Monday.” Id. at 129:21-23. On J uly
14, 2021, after the Children did not return “on Monday,” the Father initiated legal
proceedings in Venezuela against the Mother, accusing her of falsifying the travel
authorization permit. DE 1-9 at 4; DE 42 at 132:15-25. After an investigation, the
Venezuelan court determined the travel authorization permit was forged and instituted
criminal proceedings against the attorney who prepared the travel authorization permit.
DE 1-9 at 6, 23. As a result of this incident, the guidelines in Venezuela have changed so
now the judges issuing a minor child’s exit visa must personally identify the parents. DE
43 at 67:8-11. After receiving the results of the investigation, the Father immediately
began working with an attorney to understand what he had to do to see his Children again.
6 The Mother’s family, however, clearly does not foster the Children’s relationship with the Father.
During the three-day evidentiary hearing, there was an altercation between the Father and the
maternal aunt, who reportedly was attempting to listen in on the Father’s conversation with R.S.O.
DE 48 at 53:1-21. This incident upset R.S.O. Id. After this point, the Court directed that the
extended family members abstain from attending the remainder of the evidentiary hearing. Id. at
- 86:2. Thereafter, the Father was able to happily spend time with his Children in Miami.
DE 42 at 141:16-21. The criminal proceedings against the Mother are pending because she
has not been served. DE 43 at 72:20-22.
On November 21, 2021, the Father filed his Petition for Return with the Venezuelan
Central Authority. DE 1-10; DE 46 at § 18. His Petition was not transmitted to the United
States Department of State until March 2022. DE 46 at { 20. On November 17, 2022, the
United States Department of State sent a letter to the Mother, putting her on notice of the
proceedings. DE 1-11. On February 13, 2023, the Father filed the instant action, seeking
the return of the Children to Venezuela.
e. The Mother and Children’s Life in Miami, Florida
Since their arrival in Florida, the Children have been enrolled in a charter school.
DE 46 at § 27. The Children are doing well in school. DE 44 at 39:9 — 42:16. The Children
are learning English. They both participate in extracurricular activities. B.S.O. attends
dance classes, and A.S.O. attends jiu-jitsu and breakdancing classes. DE 46 at { 26. The
Mother pays for the Children’s extracurricular activities. DE 44 at 45:4-5. The Children
see doctors regularly and have health insurance. Id. at 49:3-9.
The Children live with their Mother and five other family members’ in a three-
bedroom house with an attached garage. DE 46 at { 25. The Mother and R.8.0O. live in the
converted garage and A.S.O. shares a room with his adult uncle who is developmentally
delayed. DE 44 at 60:17-19; Ex. S at 5. The Mother's sister is pregnant, and when she gives
birth the Mother and the Children will have to find housing elsewhere. DE 44 at 60:15-25.
The Mother works at a cookie factory in the packaging department, where she makes
approximately $1,600 to $1,700 every two weeks. Id. at 57:21; 59:13. The Father has not
provided any financial support since the Children’s arrival in the United States and
7'The Mother and Children live with a maternal aunt, her husband, their two young children, and a
maternal uncle. Ex. § at 11.
testified that he has not done so because of his disagreement with the Mother’s actions. DE
42 at 140:5-11. Neither the Children nor the Mother have asked the Father for financial
support while in Florida. Jd. at 150:12-15. The Mother has applied for political asylum. DE
44 at 51:2-6. She currently has a work permit. DE 42 at 45:18-19. The Mothev’s initial
hearing date of April 13, 2023 was continued until June 18, 2024. DE 45 at 4:17.
The Mother has no intention of going back to Venezuela. First, the Mother fears
political persecution due to her affiliation with the political party that opposes the
Venezuelan government. DE 44 at 121:11-16. Second, the Mother cannot return to
Venezuela due to her pending asylum proceedings. Jd. at 51:2-6. Third, the Mother is afraid
of going back to Venezuela because of the pending criminal proceeding against her which
the Father initiated. Jd. at 121:11-16. Lastly, the Mother does not want to go back to
Venezuela because she is fearful of the Father’s possessiveness, who admitted that he does
not allow the Mother to pursue another romantic relationship. DE 42 at 181:2-11; DE 44 at
91:9-12.
f. The Children’s Emotional Connection with Their Parents
The parties mutually agreed to have the Children evaluated by a qualified
psychologist, Dr. Miguel Firpi. To prepare his report, Exhibit S, Dr. Firpi interviewed the
Mother, the Father, the Father’s wife, and visited the Children’s home in Miami. DE 42 at
37:5-39:16. Dr. Firpi also spoke to the Children’s teachers and coaches. Jd. at 55:16-17. Dr.
Firpi’s evaluation focused on whether the Children are well-settled in their new
environment, whether they would suffer psychological or physical harm if returned to the
Venezuela, and whether the Children are mature enough to express objections to return.
Id. at 54:20-25. To determine whether the Children are well-settled, Dr. Firpi evaluated
whether the Children have support, structure, routine, and their level of engagement in the
community or school. Jd. at 55:14-22. Dr. Firpi observed the Children with the Mother's
large family. Id. at 29:1-3. Dr. Firpi described the Mother's extended family as a “tribe,” and
noted that the extended family members are very close with the Children and involved in
their lives. Id. at 56:9-19. In addition to their family in Miami, the Children have extended
family members in Orlando, Florida; Boston, Massachusetts; and North Carolina. Id. Based
upon his interviews, review of the records, research and expertise, Dr. Firpi concluded that
the Children are very happy and well-adjusted in Miami. Id. at 56:4-8.
Dr. Firpi does not believe there is a “secure attachment” with their Faither. Id. at
48:21-23. Dr. Firpi testified that he observed a phone conversation between the Father and
the Children. Id. at 64:11-13. The Father’s interactions with the Children were more
“parent-centric” than “child-centric,” meaning the Father focused more on how this matter
has affected him instead of trying to emotionally connect with the Children. Id. at 63:2-25.
Dr. Firpi testified that the Father is not “emotionally attuned” to the Children. Id. at
52:10-18. The Children say they do not want to talk to their father because “it’s always the
same thing.” Id. at 64:1. Dr. Firpi noted that although the Father complains that the
Children do not respond when he calls, the Children likewise complain that at times, the
Father does not respond when they call. Id. at 42:4-7,.
Dr. Firpi testified that the Mother is emotionally bonded with the Children. Id. at
46:19-23. Dr. Firpi determined the Mother was nurturing and attentive. Ex. S at 19. Dr.
Firpi also observed that the Children were affectionate with the Mother and listened to her
instructions. Id. The Mother is aware of the Children’s needs. For example, the Mother
expressed to Dr. Firpi that A.S.O. can be hyperactive and asked him for guidance on how to
manage the hyperactivity. DE 42 at 85:14-17. Dr. Firpi concluded that for the Children to
leave the Mother to be with the Father and his wife would be a “severe adjustment” for the
Children. Jd. 79:5-10.
10
Dr. Firpi’s report, in conjunction with the record evidence, indicates that the
Children do not have an emotional connection whatsoever with the Father’s wife because
they have not met her. Ex. S at 23. The parents disagree on why the Children have not met
the Father’s wife— either the Mother or the wife forbade the Children from entering the
Father’s home. Id. at 7. The wife told Dr. Firpi that she had “no objection” to welcoming the
Children into her home. Id. Likewise, the Father testified that the wife would welcome the
Children. DE 45 at 14:8-14. The wife admitted to Dr. Firpi that the situation amongst the
Mother, the Father, and the Children was “extremely difficult” but that she has “found God
and acceptance.” Ex. S at 7.
There is no dispute that the Mother is the primary caretaker. DE 42 at 64:2. The
Children have essentially never been apart from their Mother. The Father does not want to
separate the Children from their Mother and the Children, and understands the Children
would not be happy if separated from their Mother. Jd. at 160:20-21. However, other than to
say he has room in his marital home, and that the Children will be able to participate in
activities similar to the ones they are currently participating in, he has not provided a
concreate plan to integrate the Children into his life in Venezuela, if they were to be
returned. DE 42 at 159:19 — 160:5; DE 45 at 16:16 — 20:12.
In Dr. Firpi’s discussion’s with R.S.O., he observed a depth of thought that is not
characteristic of an eight-year old. DE 42 at 81:7-9. For example, Dr. Firpi noted how
focused she is on continuing her dance, and she recognizes that pursuing her passion
depends on her behavior. Jd. at 80:15. R.S.O. is self-aware and understands her difficulty
with English is because of her shyness, but she expresses an intent to work on it. Id. at
80:15-17.
R.S.O. expressed that she does not want to return to Venezuela because she will not
have the same opportunities. DE 43 at 45:20 — 46:7. R.S.O. expressed that she feels “better
11
with [the Mother],” and “not as well with [her Father.]” Id. at 52:4 — 6. A.S.O. also
expressed an objection to returning to Venezuela. Id. at 22:24 — 23:6. A.S.O. stated that his
favorite thing to do outside of school is “live with [the Mother.]” Id. at 8:5.
Il. LEGAL STANDARD
The Convention’s purpose is to “address the problem of international child
abductions during domestic disputes.” Lozano v. Montoya Alvarez, 572 U.S. 1, 4 (2014)
(quotations omitted). The Convention does not empower the Court to make any
determination regarding the underlying custody dispute. 22 U.S.C. § 9001(b)(4). The
Convention’s two primary objectives are first, to secure the prompt return of children
wrongfully removed, and second, to respect a Contracting States’ custody rights laws in
another Contracting State’s territory. Id. (quoting Hague Convention, Oct. 25, 1980, art. 1,
T.I.A.S. No. 11,670, 19 I.L.M. 1501). The Convention requires the prompt return of a child
wrongfully removed or retained away from the country in which he or she habitually
resides. Monasky v. Taglieri, 140 S. Ct. 719, 728 (2020). However, the Convention also
recognizes certain narrow exceptions to return. Id.
When a petition under the Convention is filed, the first question a court must
address is whether the removal or retention was wrongful. The removal or retention is
wrongful if it: (i) violates one of the parent’s custody rights provided by the laws of the
child’s country of habitual residence; and (ii) the parent was actually exercising those
custody rights at the time of removal or retention, or would have been exercising them, but
for the removal or retention. Hague Convention, art. 3. If the petitioner shows by a
preponderance of evidence that the removal or retention was wrongful, the burden shifts to
the respondent to prove by a preponderance of the evidence that an affirmative defense
applies. 22 U.S.C. § 9003(e). If a respondent is asserting the affirmative defense that a child
is at grave risk of harm if they are to return to their country of habitual residence, the
12
evidence must be clear and convincing. Golan v. Saada, 142 S. Ct. 1880, 1888 (2022). Even
if an affirmative defense applies, a court may exercise its discretion when deciding on a
child’s return. Fuentes-Rangel v. Woodman, 617 F. App’x 920, 922-23 (11th Cir. 2015)
(quoting Friedrich v. Friedrich, 78 F.3d 1060, 1067 (6th Cir. 1996)).
II. CONCLUSIONS OF LAW®
a. The Father Established a Prima Facie Case Under the Convention
Given the record, the Father has established by a preponderance of the evidence
that he was exercising his custodial rights under Venezuelan law® at the time of the
Children’s removal. The Mother did not present any evidence to the contrary. Under
Venezuelan law, parents of minor children, regardless of their relationship status, share
equal parental rights and responsibilities. DE 34 at 6. It is clear from the evidence that
Barquisimeto, Venezuela was the Children’s habitual residence prior to their removal. The
Father’s name is on the Children’s birth certificates. DE 42 at 105:18-106:18. The Mother □□
does not dispute that he is the natural father of the Children, nor does she dispute that he
was involved in the Children’s lives while they lived in Venezuela. Although there is no
judicial or written formal custody agreement between the Parents in this matter, neither
side disputes that the Father was acting as a father to the Children— he supported them
financially, spent time with them, spoke to them on the phone, and genuinely loves them.
In this way, the Father was exercising his custody rights at the time of the Children left
Venezuela. The Father did not approve, consent to, or in any way authorize his Children’s
8 The parties have stipulated to, and the Court agrees, that this Court has jurisdiction over this case
under 22 U.S.C. § 9003(b) and 28 U.S.C. § 1331 and that venue is proper in the Southern District of
Florida because the Children are currently in Miami, Florida. DE 31 at 6. Additionally, there is no
dispute that the United States and Venezuela are signatories to the Convention, and that the
Children are under the age of sixteen.
9 The parties stipulated to the statements in the Father’s Venezuelan legal expert’s affidavit
regarding Venezuelan law on parental rights and responsibilities. DE 34; DE 42 at 93:18-21.
13
travel to Panama, Mexico, and much less the United States. As such, when the Mother left
Barquisimeto with her Children without the Father’s consent, she wrongfully removed
them from their habitual residence in violation of the Father’s rights.
b. The Father Filed the Petition More Than One Year After the
Children’s Removal
If a petition is filed more than a year after a child’s removal, a respondent who
asserts the well-settled defense to return under Article 12 must show by a preponderance of
the evidence that the child is now well-settled. Fernandez v. Bailey, 909 F.3d 353, 359 (11th
Cir. 2018). Here, it is clear from the evidence that the Father’s petition is filed more than
one year after the Children’s removal. The Father filed his petition for the return of his
Children with the appropriate Venezuelan authority approximately four months after the
Children were removed. However, due to administrative delays exacerbated by the
coronavirus pandemic, his petition was not forwarded and subsequently processed by the
United States Department of State until October 2022. The instant Petition for Return was
filed in February 2023, approximately a year and a half following the Children’s removal.
The one year-period begins from the date of the child’s wrongful removal, and equitable
tolling is not available under the treaty. Lozano, 572 U.S. at 15-17.
ec. The Children Are Well-settled
A respondent satisfies the well-settled exception under the Convention if he or she
can show by a preponderance of the evidence that the child has developed a “stable,
permanent, and non-transitory life” in their new environment. Fernandez, 909 F.3d at 361.
The Mother has a steady job. Her family provides emotional and financial support, as well
as stable housing. The Children are enrolled in school and extracurricular activities about
which they are passionate. They are learning English quickly. During the Court’s in camera
discussion, A.§.O. was very comfortable speaking in English. R.S.O. was shy, however she
14
eventually became more comfortable and tried her best to communicate in English. Based
on the in camera discussion, the Court can see that the Children are bright and aware of
the tension between their parents.
The Children have experienced instability in their lives, by way of leaving their town
in Venezuela, crossing into the United States, and spending time at a border shelter. DE 44
at 35:16-25. However, there has been one constant in their lives— their Mother. The
Children have never been separated from their Mother. In Venezuela, they lived with and
spent every night with their Mother, except for the one week they spent with their paternal
grandmother when the mother was in Caracas. Ex. S at 6. In the United States, the
Children live with and are cared for by their Mother. If the Children were to return to
Venezuela, they would return to a familiar town but to a foreign living situation— a house
they have never lived in with a stepmother they have never met while physically separated
from their Mother.
The Father, who successfully kept his worlds separate when the Children lived in
Venezuela, would assume full-time custodial parenting responsibilities, something he has
never done. Much, if not all, of the care of the Children was delegated to two women inhis |
life— the Mother and his mother. Although the Father can provide for his Children
financially, the undisputed record evidence shows that he is not skilled at emotionally
connecting with the Children. The Father is only accustomed to acting as a parent ina
compartmentalized structure. Granting the Father’s Petition would not restore the status
quo for the Children, as is intended by the Convention. Lops v. Lops, 140 F.3d 927, 937
(11th Cir. 1998) (citing Friedrich v. Friedrich, 78 F.3d 1060, 1067 (6th Cir. 1996)). In fact, it
would result in exactly the opposite. The Father wishes for things to return as they once
were— the Mother providing primary care supplemented by the Children’s grandparents in
Venezuela. However, it is clear from the record that because the Mother’s asylum
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proceedings, the open criminal case against her, and her strained relationship with the
Father, the Children’s living situation will not return to what it once was. The Mother is
adamant that she will not return to Venezuela.
d. The Mother’s Additional Affirmative Defenses
The Mother asserts two additional affirmative defenses— first, that the Father was
not exercising his custodial rights, and second, that the Children will be exposed to grave
psychological harm if returned to Venezuela. The first affirmative defense is without merit.
The parties stipulated to what the Venezuelan law is regarding parental rights of
unmarried parents and based on the evidence presented, the Father was exercising his
custodial rights. Because the Children are well-settled in their new environment, it is not
necessary to determine whether the Mother met the high burden of showing that the
Children would be exposed to grave psychological risk if returned.
IV. CONCLUSION
This is a distressing case. Given the undisputed opinion of the parties’ joint expert
witness, it is frustrating that two competent adults who obviously love their wonderful and
well-settled Children cannot work out a rational plan so that the Children can continue to
have a relationship with their Father while not separating them from their Mother, that
the Father insists that he does not want to do. Further, while it is unquestionable that
Venezuela is the appropriate forum to address the custody dispute between the parents,
neither party has made an effort to do so. This Court is not authorized to make that
determination. The parents’ refusal or inability to reach a custody resolution, even when
urged by the Court at the conclusion of the evidentiary hearing, reflects that the parents
cannot put their Children’s interests before their individual motivations.
The Father has established a prima facie case for return. However, because the
Father’s petition was not filed within a year of removal and the Mother has met her burden
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in showing that the Children are well-settled in their new environment and prefer to live
with their Mother, the Court must deny the Petition. Accordingly, it is
ORDERED THAT Petitioner’s Petition for Return is DENIED.
DONE and ORDERED in Miami, Florida on this A ~ day of June, 2023.
PATRICIA A. STZ
UNITED STATES SENIOR DISTRICT JUDGE
ce: Counsel of Record
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