Case Update: Hague Abduction Convention, burden of proof, consent exception

Shortly before the entire world came to a halt because of the coronavirus, the Eleventh Circuit issued an opinion that should serve as a clear reminder on best practices when arguing a Hague Abduction matter.  

In Berenguela-Alvarado v. Castanos-I, the parties’ minor child, who had lived her entire life in Chile with her mother, traveled to Florida in early 2019 to spend approximately 2 months with her father.  The parties had a return ticket purchased for the child.  Before the child’s return date, the Father tried to secure the Mother’s agreement to let the child remain in Florida.  He, in fact, had a friend in Florida draft and send a document to the Mother, which included language for her to give consent to the child’s permanent relocation.   The Mother scheduled 2 appointments at the U.S. consulate to sign the document before a notary but did not attend either appointment (which she later says was her delaying, trying to have the child returned as scheduled).  The Mother ultimately signed the consent form, took a photo of it and sent the photo to the Father.  At trial, she was the only party to testify about this consent document.  The Father actually objected to its admission on the basis of hearsay.  The Mother testified that she only signed the document because the Father threatened that she would never see the child again if she did not.  

A Taking Parent can argue certain exceptions under the Hague Abduction Convention to attempt to persuade a court to not return the child.  One of these exceptions is that the Left Behind Parent consented to the child's permanent relocation.   Under the U.S. implementing legislation, ICARA, the Taking Parent (Respondent) has the burden to prove that the Left Behind Parent’s subjective intent was to consent to the child's relocation.  In other words, in this case, it was the Father's burden to prove that the Mother intended to consent to the child's relocation to the United States.  However, at trial, the Father actually put forth no evidence and did not meet his burden to make out a consent exception.  The only evidence as to “consent” appeared to come from the Mother who showed the court the letter she signed and argued it was signed under duress, and that it was never her intent to allow the child to permanently relocate.  It was improper for the trial court to shift the burden back to the Mother to prove that her consent was given only under duress.

Therefore, on February 25, 2020, the U.S. Court of Appeals remanded.  On remand, the U.S. District Court concluded that the Father had not met his burden to prove the Mother consented.  The Father asked permission to present additional evidence on his exceptions, but his request was denied.   The Father appealed the return order and argued that the trial court should have reconsidered the child’s habitual residence using the new totality-of-the-circumstances test outlined by the U.S. Supreme Court in Monasky, which was handed down the exact same day as Berenguela-Alvarado-I, and that the court was wrong to not allow him to present additional evidence on the "consent" exception.

The Father only brought forth his Monasky-argument on this second appeal, and the Court “will not address a claim that has been abandoned on appeal or one that is being raised for the first time on appeal, without any special conditions.”  Even if the Court should entertain the Father’s Monasky-argument, it concluded that the District Court already applied a-totality-of-the-circumstances test.  Therefore, the U.S. Court of Appeals, on July 7, 2020, affirmed the remanded-decision of the U.S. District Court to return the minor child to Chile. 

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