Case Update (2021): Minkiewitz v. Becker; habitual residence, no clear error

On February 11, 2021, in the unpublished opinion of Minkiewitz v. Becker, the Court of Appeal of California affirmed the return of a minor child to Mexico under the Hague Abduction Convention.  

The parties are parents to a 7-year-old son, all are U.S. citizens, and were living on their boat docked in Marina del Rey, California.  In December 2016, the family set sail for Mexico, and by January 2017, the family had set up residency in Mexico, where they moored their boat. They enrolled their son in school, he was learning Spanish, but they continued to drive back to Los Angeles for his medical care, so they maintained insurance for cars registered in the United States. The parents acquired the necessary permits and visas to reside in Mexico indefinitely, and while the visas were only temporary, they continued to renew them, and the father applied for permanent residency.  The father had bank accounts in both countries, and the family enjoyed entertainment and socialization in Ensenada, until February 2018, when the mother left Mexico with the child and returned to California, without the father's consent.  She filed for a domestic violence restraining order in California, which was denied due to lack of personal jurisdiction.  In October 2018, the father petitioned the trial court for the return of his son under the Hague Abduction Convention.  The trial court concluded, after a several day trial, that Mexico was the child's habitual residence, and not merely a temporary stop on a longer trip to sail around the world.  

The trial court did not have the benefit of Monasky in conducting its habitual residence analysis.  The trial court, however, did examine all of the facts, and simply disagreed with the mother's argument that the family maintained ties to the United States.  The court found any ties to be common practices among expatriates.  Furthermore, the family, while perhaps previously having an intent to sail the globe, abandoned that intention when they moored in Ensenada.  The trial court's findings were supported by the record.  There is no clear error warranting the Court of Appeal to overturn the trial judge's findings. Even though the trial judge did not have the benefit of Monasky, there is nothing in the record that suggests the trial judge, if remanded, would reach a different decision.