Case Update (2020): Romero v. Bahamonde; Hague Abduction; mature child, burden to prove exceptions on Respondent

On November 19, 2020, the US District Court for the M.D. of Georgia issued its opinion, denying Mr. Romero's request to return his two children to Chile.  In December 2017, Mr. Romero brought the parties' 2 children to Florida to see his mother, with the intention of remaining until March 2018.  Ms. Bahamonde alleged, however, that in January 2018, Mr. Romero advised her that he and the children would not be returning.  In February 2018, she moved to Florida, first living with Mr. Romero's mother, and then moving out on her own.  Eventually, both children began residing with Ms. Bahamonde.  The parties had an acrimonious relationship both in Chile and in Florida.  Ms. Bahamonde had filed several requests for protective orders, and a hearing was scheduled for September 20, 2018, then re-scheduled to December 13, 2018.  She ultimately dismissed the case, however, learning that Mr. Romero had returned, with both children's passports, to Chile on September 15, 2018.  Ms. Bahamonde subsequently left Florida and moved to Georgia, where she resides with her fiance' and the children.  She is not able to leave the United States since she has no passports for the children.  She and the children have overstayed their visas, and do not have legal status in the United States.  Her immigration attorney testified that there are challenges to obtaining legal status, but there is no immediate threat of their removal.

Using the totality-of-the-circumstances standard, the Court found that the habitual residence was Chile.  The parents had not shared an intent to abandon Chile, they are all Chilean citizens, the initial intent was for a temporary stay in Florida, the father took a leave of absence until October 2018 from his job in Chile, the father did not change his banking or credit accounts to the U.S., and the first place the family lived in Florida was with the father's mother, who intended and did return to Chile in August 2018. 

The court concluded that the Respondent then met her burden to prove the children are now settled, there would be a grave risk of harm to return them, and that the oldest child objected to being returned.  This blog will focus on the last of these three.

The oldest child (age 14) was interviewed in camera and described her desire to live in the United States, where she felt "safe" and elaborated on her life in Chile where she "did not have enough money, frequently had to change residences, and constantly lived in fear that Petitioner would break into where they were living and hurt Respondent." The court applied its 3 prong test in reaching its conclusion: 1) the child is mature, 2) the child has a particularized objection to repatriation, and 3) the objection is not the product of undue influence. "When determining whether the child's objection is the result of undue influence, district courts consider whether the objection is derived from the child's own independent thought, whether the child displayed honesty and fairness when describing her parents, whether the objection is based on the child's personal experiences, and whether the child provides specific reasons underlying her objections."

As a side note, the court also found the father to have effectively consented to the children remaining in the United States when he left, took their passports, and then refused to send the mother their passports when she said she needed them to purchase return plane tickets to Chile.  However, the court concluded that the mother did not rely on any evidence or this rationale, and since it is her burden, the Court did not resolve this case on this exception and relied on the three exceptions the mother did prove.

Mr. Romero appealed this case in February 2021.