Posted by Nydia Streets of Streets Law in Florida Child Custody

The Hague Convention applies to international child custody cases in which an accusation of parental abduction or interference with a child custody right is at issue. As stated in the case Cruz de Carvalho v. Carvalho Pereira, 1D20-523 (Fla. 1st DCA November 16, 2020): “The Convention’s central operating feature is the return remedy. When a child under the age of 16 has been wrongfully removed or retained, the country to which the child has been brought must ‘order the return of the child forthwith,’ unless certain exceptions apply.”

The parties were married in 2010 in Brazil. Their first child was born in 2012. In 2015 the mother became pregnant and the parties agreed for the family to move to the United States for two reasons: (1) to give birth to their second child so that that child would be a U.S. citizen and (2) for the father to complete a medical fellowship. The parties’ second child was born as planned in the U.S., but the father’s medical fellowship fell through. Accordingly, he returned to Brazil alone to reestablish his prior employment and to set up the family’s living situation, including the children’s schooling and living arrangements. The father purchased tickets for the family’s return to Brazil, but the mother refused to return. A trial court in Florida eventually granted the father’s petition for return of the children to Brazil under the Hague convention and the mother appealed.

The appellate court noted “To establish a case for wrongful retention under the Hague Convention in this case, the Father was required to prove by a preponderance of the evidence that: 1) the children were habitual residents of Brazil at the time they were retained by the Mother in the United States; 2) the retention of the children by the Mother was in violation of the Father’s custody rights under Brazilian law; and 3) the Father had been exercising those custody rights at the time of the retention.” On the trial level, the parties stipulated to requirements 2 and 3. Thus the dispute centered around whether or not the children were habitual residents of Brazil at the time they were retained by the mother in the united states.

The appellate court upheld the trial court’s decision, holding “The Mother fails to show clear error in the trial court’s finding Brazil to be the habitual residence of these children as of April 2016. ‘Because children, especially those too young or otherwise unable to acclimate, depend on their parents as caregivers, the intentions and circumstances of caregiving parents are relevant considerations.’ [internal citation omitted]. In cases involving infants born in a country during a temporary visit by the parents, the Supreme Court has noted that an ‘infant’s ‘mere physical presence,’ we agree, is not a dispositive indicator of an infant’s habitual residence.’ In such cases, ‘a wide range of facts other than an actual agreement, including facts indicating that the parents have made their home in a particular place, can enable a trier to determine whether an infant’s residence in that place has the quality of being ‘habitual.’” The court went on to hold “The trial court’s finding that, despite the passage of time, these young children were not settled to such a degree that return would be detrimental was not an abuse of discretion. The court discussed the evidence presented about the children’s lives in their various residences in the United States, their relatives in both the United States and Brazil, and lack of ties to the community due to their young ages. The possibility that we could have ‘gone the other way had it been our call’ does not constitute a clear error of judgment by the trial court.”

Hague Convention cases involve complicated issues which require the assistance of counsel. Schedule a consultation with a Miami child custody lawyer to understand how the law may apply to your case.