HORACIUS v. RICHARD (2024)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

THIS CAUSE came before the Court following a bench trial held on January 16, 2024 through January 17, 2024. (ECF Nos. 41, 42); Transcripts of Bench Trial (ECF Nos. 52-1, 52-2).¹ On November 10, 2023, Petitioner Eric John Horacius (“Petitioner”) filed a Verified Petition for Return of Minor Child to Canada. (“Pet.”) (ECF No. 1). Therein, Petitioner seeks the return of his minor child, A.H.,² to Canada pursuant to the Convention on the Civil Aspects of International Child Abduction, done at the Hague on October 25, 1980 (the “Hague Convention”), and the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. §§ 9001–9011. Petitioner contends that A.H.’s mother, Anne Catherine Richard (“Respondent”), brought A.H. from Canada to the United States under false pretenses and has wrongfully retained the child therein in violation of Petitioner's custody rights. Pet. ¶ 3.

On December 11, 2023, Respondent filed her Answer and Affirmative Defenses. (“Answer”) (ECF No. 19). At the bench trial, Petitioner and Respondent each testified on their own behalf. See generally Day One Trial Tr.; Day Two Trial Tr. Following the bench trial, the Parties submitted post-trial proposed findings of fact and conclusions of law. See generally Petitioner's Proposed Findings of Fact and Conclusions of Law (“Pet'r’s Proposed Findings”) (ECF No. 54); Respondent's Proposed Findings of Fact and Conclusions of Law (“Resp't’s Proposed Findings”) (ECF No. 53).

Having reviewed the pleadings, examined the evidence, observed the witnesses, and considered the arguments of counsel as well as the remainder of the record, the Court now enters its Findings of Fact and Conclusions of Law pursuant to Federal Rule of Civil Procedure 52(a).³ For the reasons set forth below, the Petition is GRANTED.

I. FINDINGS OF FACT 4

A. A.H.’s Family Background

A.H. was born in Canada in 2020. Day One Trial Tr. 23:5–12. Due to a medical condition with her chin, A.H. required medical treatment shortly after her birth to address breastfeeding and breathing issues. Id. 25:23–25, 26:1–2. A.H.’s father, Petitioner, resides in Canada and is both a Canadian and United States citizen. Id. 18:20, 38:14. A.H.’s mother, Respondent, is a Canadian citizen. Id. 20:18. Petitioner and Respondent began their relationship in 2016 and were married in Canada in 2018. Id. 22:2–4. Petitioner has two other children and Respondent has one other child from previous marriages. Pet'r’s Proposed Findings at 2.

B. A.H.’s Journey from Canada to the United States

On December 15, 2020, when A.H. was nine months old, A.H. and her parents left Canada on a trip to the Dominican Republic. Day One Trial Tr. 195:6–15; Day Two Trial Tr. 61:3–4. Respondent had informed Petitioner that she wanted the family to visit her parents because her father was gravely ill. Day One Trial Tr. 28:10–16. A.H. and her parents did not return to Canada from the Dominican Republic. Respondent testified that while they were in the Dominican Republic, she and Petitioner both decided to permanently move to Florida with A.H. and A.H.’s stepbrother, Respondent's son from a previous relationship. Id. 195:6–9. Petitioner testified that the family had always intended to return to Canada from the Dominican Republic, but Respondent convinced him to extend their vacation and go to Florida to spend more time with Respondent's family. Id. 29:18–25, 30:1–13. On February 15, 2021, the family traveled from the Dominican Republic to Florida with just a few pieces of luggage. Id. 30:9, 194:3–6. Upon arrival to the United States, Petitioner and Respondent represented to the U.S. Customs agent that the purpose of their trip was to visit family members. Id. 31:6–9. Respondent, A.H., and A.H.’s stepbrother were granted B2 visas and were allowed to enter the United States for six months. Id. 31:12; Pet'r’s Ex. 4.

In Florida, Petitioner, Respondent, A.H., and A.H.’s stepbrother moved in with Respondent's relatives in Respondent's sister's rented house in Miramar, Florida. Day One Trial Tr. 33:3–10. After a new owner bought the condominium that they had been renting in Canada, Petitioner and Respondent negotiated an early termination on their joint lease, which allowed them to save money and afford living in Florida. Id. 48:18–25. Following the lease termination, Respondent began renting a storage unit in Canada in March 2021 to store the family's belongings. Id. 219:17–23. She testified that she continues to pay for the storage unit and has not moved any belongings to Florida. Id. 220:1–14.

Petitioner also began the paperwork to sponsor Respondent's application to secure U.S. citizenship, in the hope that they could submit the application before Respondent's visa expired on August 15, 2021. Id. 35:17–23. Petitioner testified that every time he asked Respondent to help him with the paperwork, she found ways to delay the process by saying the application was not a priority and suggesting that they do something else instead of the paperwork. Id. 35:4–13. Respondent's application was ultimately received by Immigration Services on October 28, 2021. Id. 35: 21–23.

On January 16, 2022, Petitioner discussed the immigration application with Respondent and suggested that they cancel his sponsorship application, return to Canada, and resubmit the application there. Id. 50:15–22. He felt that this was the best option because while the application was being processed, Respondent and A.H. were not allowed to leave the United States and they had already overstayed their visas at that point. Id. 51:1–5. During this conversation, Respondent told Petitioner that the application was in its final stages, but that if the application was not processed by February or March 2022, they would cancel it and return to Canada. Id. 138:16–19.

On January 28, 2022, Petitioner told Respondent that he had withdrawn his sponsorship application due to the financial burden of the application process and the expenses of living in Florida. Id. 57:17–23. Respondent proceeded to kick Petitioner out of her sister's house. Id. 57:4–8. Petitioner returned to Canada without being given a chance to say goodbye to A.H. Id. 57:22–25, 58:1.

C. Respondent Files for Divorce and Continues Immigration Proceedings On Her Own

Respondent filed for divorce on February 7, 2022. Resp't’s Ex. 20. On February 11, 2022, Petitioner sent airplane tickets for Respondent, A.H., and A.H.’s stepbrother to return to Canada on March 1, 2022. Day One Trial Tr. 59:1–4. At that point, Petitioner had not yet received Respondent's divorce petition and despite their fight, he believed that the plan was still for the family to return to Canada and restart immigration proceedings from there, as previously discussed with Respondent. Id. At trial, Respondent admitted that the divorce petition contained incorrect allegations—for example, Respondent requested sole parental responsibility of A.H. because Petitioner had not had any recent contact with A.H.; he had, in fact, been with A.H. until he left Respondent's sister's house on January 28. Id. 223:21–23. Petitioner received the divorce petition on February 14, 2022. Id. 59:7–9. While the couple proceeded with the divorce, Petitioner was in Canada and attempted to maintain contact with A.H. in Florida. Id. 62:2–4 (“I had requested not only to see A.H., but to have implemented a daily video call on a daily basis. But, it never worked out. The mother didn't allow it.”).

During this time, Respondent attempted to find other legal avenues to remain in the United States. At trial, she testified that without Petitioner's sponsorship, she knew it was only a matter of time before her immigration application was rejected. Id. 231:1–4. Thus, she found an immigration lawyer, who advised her to apply for permanent residency status under the Violence Against Women's Act (VAWA). Id. 236:6–8. Respondent filed the application for permanent residency status under VAWA in April 2022. See generally Pet.’r's Ex. 36. This application is still pending. Respondent testified that if her application is ultimately denied and she is ordered to leave the United States, she would return to Canada. Day Two Trial Tr. 58: 6–17.

In support of her application, Respondent wrote and submitted a letter explaining why she should be granted permanent residency status. During trial, it became clear that Respondent's VAWA immigration application and supporting letter contained multiple false allegations, or at least, there are significant inconsistencies between the application and Respondent's trial testimony. For example, Respondent wrote that Petitioner had never sent her money, when in fact Respondent sent money every month to support her and A.H. Day One Trial Tr. 241:21–25, 242:1–6. Respondent's application also contained allegations of sexual violence. Indeed, her application and supporting documentation contain allegations that Petitioner raped her on September 5, 2021. Id. 258:23–24. These allegations, like those about whether Petitioner supported her and A.H. financially, also contradicted her trial testimony. Despite raising sexual assault allegations in her application, she testified that she texted Petitioner on September 20, 2021, fifteen days after the alleged rape, “You are perfectly aware that we haven't had sex for almost two years now.” Id. 259:1–13. The Court will not opine on the merits of Respondent's pending immigration application but finds that the inconsistencies in Respondent's testimony strike a serious blow to her credibility.

D. State Court Proceedings

Once Petitioner realized that Respondent did not intend to return to Canada with A.H. or A.H.’s stepbrother, Petitioner contacted the Canadian Central Authority and submitted an application under the Hague Convention for the return of A.H. on December 2, 2022. Id. 72:9–19. The Canadian authorities subsequently transmitted the application to the U.S. State Department. Pet. ¶ 51. On April 20, 2023, the U.S. State Department advised the Chief Judge of the Seventeenth Circuit Court of Florida of Petitioner's application and informed the Chief Judge that a Petition for Return might be filed. Id. ¶ 53. The state court mistook this notice to mean that a Petition for Return had actually been filed. Id. Consequently, the state court assigned a judge to resolve the Hague Convention Petition for Return, even though no Petition for Return had been filed at that point. Id. The state court judge held a bench trial and ultimately denied Petitioner's purported Petition for Return on June 29, 2023. Id. ¶ 55. To appeal the state court decision, Petitioner found new legal representation. Id. ¶ 56. When preparing for the appeal, Petitioner's new counsel realized that Petitioner had never properly filed a Petition for Return in the first place, so Petitioner filed a motion seeking to vacate the state court's June 29 order as void for lack of subject matter jurisdiction. Id. ¶¶ 57–59. Ultimately, on September 26, 2023, the state court order was vacated. See Pet'r’s Ex. 26. Petitioner then proceeded to file the instant Petition before this Court. See generally Pet.

II. CONCLUSIONS OF LAW

A. The Hague Convention and ICARA

“To address ‘the problem of international child abductions during domestic disputes,’ in 1980 the Hague Conference on Private International Law adopted the [Hague Convention].” Lozano v. Montoya Alvarez, 572 U.S. 1, 4, 134 S.Ct. 1224, 188 L.Ed.2d 200 (2014) (quoting Abbott v. Abbott, 560 U.S. 1, 8, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010)). Subsequently, Congress “implemented the Convention's terms through the International Child Abduction Remedies Act of 1988 (“ICARA”), 22 U.S.C. §§ 9001–9011.” Gomez v. Fuenmayor, 812 F.3d 1005, 1010 (11th Cir. 2016) (citation omitted). The Hague Convention is designed “to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.” Hanley v. Roy, 485 F.3d 641, 644 (11th Cir. 2007) (quoting Hague Convention, pmbl.) (internal quotation marks omitted).

“Children who are wrongfully removed or retained within the meaning of the Convention are to be promptly returned unless one of the narrow exceptions set forth in the Convention applies.” § 9001(a)(4); see also Abbott, 560 U.S. at 22, 130 S.Ct. 1983 (“Return is not required if the abducting parent can establish that a Convention exception applies.”). However, “[e]ven if an exception is established, the Court has discretion to order the return of a child if return would further the aims of the Hague Convention.” Marquez v. Castillo, 72 F. Supp. 3d 1280, 1284 (M.D. Fla. 2014) (citation omitted). Certainly, any affirmative defenses or “exceptions,” are to be construed narrowly. See Ermini v. Vittori, 758 F.3d 153, 161 (2d Cir. 2014) (citation omitted); see also Gomez, 812 F.3d at 1011 (“As the Convention's official commentary has noted, narrow interpretations of the exceptions are necessary to prevent them from swallowing the rule and rendering the Convention ‘a dead letter.’ ”) (citation omitted). Ultimately, ICARA's limited scope of inquiry mandates that courts must not “become mired in inquiries of who is the better parent or who occupies the nicer home.” Pacheco Mendoza v. Moreno Pascual, No. CV 615-40, 2016 WL 320951, at *1 (S.D. Ga. Jan. 26, 2016); see also Ruiz v. Tenorio, 392 F.3d 1247, 1250 (11th Cir. 2004) (“The court's inquiry is limited to the merits of the abduction claim and not the merits of the underlying custody battle.”) (citation omitted).

B. Discussion

As a threshold matter, the Parties dispute whether Petitioner met his burden of presenting a prima facie case of wrongful retention under the Convention. The Court first discusses Petitioner's prima facie case, and next turns to Respondent's affirmative defense that A.H. is well-settled in the United States.

i. Petitioner Has Presented a Prima Facie Case of Wrongful Retention

Petitioner argues that he has proven his prima facie case for Respondent's wrongful retention of A.H. Pet'r’s Proposed Findings at 19–25. To do so, he must prove by a preponderance of the evidence that (1) A.H. has been kept outside her country of habitual residence to establish that a “retention” has occurred; and (2) the retention violates the “rights of custody” afforded Petitioner under the laws of A.H.’s pre-retention country of habitual residence, Hague Convention art. 3(a), which rights Petitioner was “actually exercis[ing]” at the time of the retention or “would have been so exercis[ing] but for the removal or retention.” Id. art. 3(b); see also Pielage v. McConnell, 516 F.3d 1282, 1288–89 (11th Cir. 2008). Respondent argues that Petitioner failed to prove a prima facie case of wrongful retention because Petitioner never lost his custody rights over A.H. Resp't’s Proposed Findings at 22.

a. A.H.’s Habitual Residence Was Canada

The habitual residence is determined at the point in time “immediately before the removal or retention.” Hague Convention art. 3(a). Petitioner argues that Canada was A.H.’s habitual residence at the time of A.H.’s wrongful retention by Respondent on March 1, 2022, when Respondent refused to return to Canada with A.H. on the flight that Petitioner purchased for them. Pet'r’s Proposed Findings at 19. Respondent argues that Canada was not A.H.’s habitual residence because (1) Petitioner and Respondent “actively took steps to establish the United States as the ․ child's habitual residence”; and (2) based on a totality of the circumstances from A.H.’s perspective, her habitual residence is the United States. Resp't’s Proposed Findings at 6–18.

Neither the Hague Convention nor ICARA specifically defines habitual residence. Calixto v. Lesmes, 909 F.3d 1079, 1084 (11th Cir. 2018). When analyzing whether a child's habitual residence has changed from one country to another, the Eleventh Circuit has held that “the first step toward acquiring a new habitual residence is forming a settled intention to abandon the one left behind.” Id. (quoting Ruiz, 392 F.3d at 1252) (internal quotation marks omitted). “Although the settled intention of the parents is a crucial factor, it cannot alone transform the habitual residence.” Id. (quoting Ruiz, 392 F.3d at 1253) (internal quotation marks omitted). “There must also be an actual change in geography and the passage of a sufficient length of time for the child to have become acclimatized.” Id. (citation and internal quotation marks omitted). Where the parents do not have a shared settled intention, “[t]he evidence required to show acclimatization becomes greater.” Id. (citing Chafin v. Chafin, 742 F.3d 934, 938 (11th Cir. 2013)).

Here, the parents did not have a shared settled intention to change A.H.’s habitual residence from Canada to the United States. Both parents clearly had a shared intent to come to the United States for some period of time, but now disagree as to the permanency of the move. At minimum, there was an agreement to stay for the duration of Respondent's initial immigration application in the United States, until Petitioner withdrew his sponsorship of Respondent's application in January 2022. The Court does not find Respondent's testimony regarding their agreement to reside permanently in the United States to be credible. Respondent testified that she and Petitioner had already decided to move permanently to the United States before arriving in Florida but told immigration officers they were only there to visit family. Day Two Trial Tr. 27:20–25, 27:1–3. In Florida, Respondent told Petitioner that they would go back to Canada once the immigration application was processed. As discussed supra, not only did Respondent delay filing the application in the first instance but when Petitioner later withdrew his sponsorship, Respondent almost immediately filed for divorce and found a lawyer to file another immigration application. Day One Trial Tr. 45:2–5, 220:24–25, 221:1–2. The record in this case demonstrates Respondent's desire to take whatever action necessary to remain in the United States instead of returning to Canada.

Accordingly, the Court finds that Petitioner established that Canada was A.H.’s habitual residence from her birth until immediately prior to the alleged wrongful retention in the United States. The relevant objective facts support Petitioner's burden of establishing Canada as A.H.’s habitual residence by a preponderance of the evidence. A.H. was born in Canada and only left Canada on a temporary trip to the Dominican Republic. Respondent never moved the family's belongings from the storage unit in Canada and presently continues to pay for storage. Respondent's and A.H.’s immigration status in the United States was temporary. The fact that at this point, A.H. has lived in the United States for longer than she ever lived in Canada does not disturb this analysis. See De Carvalho v. Carvalho Pereira, 308 So. 3d 1078, 1085 (Fla. Dist. Ct. App. 2020) (citing Kijowska v. Haines, 463 F.3d 583, 587 (7th Cir. 2006)) (holding that since a parent cannot create a habitual residence by wrongful retention of the child, “[t]he length of the child's residence in the country of one of the parents cannot be decisive”). Respondent's retention of A.H. in Florida does not suffice to create a new habitual residence therein.

b. Respondent's Conduct Constituted a Wrongful Retention of A.H. Because It Violated Petitioner's Rights of Custody

Next, Petitioner must establish that there has been a retention within the meaning of the Hague Convention. Pielage, 516 F.3d at 1287. Retention “is meant to cover the circumstances where a child has been prevented from returning to [her] usual family and social environment.” Id. at 1288. It was Petitioner's understanding that the trip to the Dominican Republic and the subsequent trip to Florida were temporary trips. He purchased airplane tickets for Respondent, A.H., and A.H.’s stepbrother because he thought that they would return to Canada on March 1, 2022. Respondent may have changed her mind and wanted A.H. to reside permanently in the United States, but Petitioner always considered Canada to be A.H.’s habitual residence. At no point did Petitioner consent to the arrangement where A.H. would remain permanently in Florida. Thus, the Court finds that Respondent retained A.H. in the United States without the consent of Petitioner on or about March 1, 2022.

“Article 3 of the Hague Convention provides that the removal or retention of a child is wrongful where it violates the custody rights of another person that were actually being exercised at the time of the removal or retention ․” Lops v. Lops, 140 F.3d 927, 935 (11th Cir. 1998). “The intention of the [Hague] Convention is ‘to protect all the ways in which custody of children can be exercised, and the Convention favors a flexible interpretation of the terms used, which allows the greatest number of cases to be brought into consideration.’ ” Gatica v. Martinez, No. 10-21750-CIV, 2010 WL 6744790, at *4 (S.D. Fla. Oct. 13, 2010), report and recommendation adopted, 2011 WL 2110291 (S.D. Fla. May 25, 2011) (quoting Furnes v. Reeves, 362 F.3d 702, 716 n.12 (11th Cir. 2004), abrogated on other grounds by Lozano v. Montoya Alvarez, 572 U.S. 1, 134 S.Ct. 1224, 188 L.Ed.2d 200 (2014)). A parent “need only have one right of custody” to bring an action pursuant to the Hague Convention and ICARA. Furnes, 362 F.3d at 714.

Petitioner argues that he was exercising his custody rights under Canadian law, pursuant to Article Four, Section 599 of the Civil Code of Quebec, at the time of A.H.’s retention. Pet. ¶ 5; Pet'r’s Proposed Findings at 22–23. Respondent does not dispute that Petitioner had custody rights but argues that those rights were never breached because Petitioner has been an active participant in custody proceedings pending in Florida state court. Resp't’s Proposed Findings at 19–20. The Court is not convinced that Petitioner's active participation in state court custody proceedings indicates that none of his custody rights, as defined by the Hague Convention, were violated. Under the Hague Convention, rights of custody include “rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence.” Hague Convention art. 5(a). The Court finds that at the time of Respondent's retention of A.H. in the United States, Petitioner was exercising his rights of custody within the meaning of the Hague Convention: Petitioner lived with A.H. in Respondent's relative's house until he was forcibly removed in January 2022, he supported A.H. and Respondent financially, and he attempted to stay in regular contact either through in-person visits or phone calls after he returned to Canada. Petitioner continued to exercise his rights of custody even after Respondent unilaterally decided to keep A.H. in the United States and refused to return to Canada with her. Indeed, “if a person has valid custody rights to a child under the law of the country of the child's habitual residence, that person cannot fail to ‘exercise’ those custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child.” De La Riva v. Soto, 183 F. Supp. 3d 1182, 1197 (M.D. Fla. 2016) (citing Friedrich v. Friedrich, 78 F.3d 1060, 1066 (6th Cir. 1996)). Here, the Court finds no evidence showing Petitioner ever abandoned A.H.

Accordingly, the Court finds that Petitioner met his burden of showing that Respondent's retention of A.H. in the United States breached Petitioner's custody rights, which he was exercising at the time of A.H.’s retention.

ii. Respondent Has Not Shown that A.H. Is Well-Settled in the United States

Having found that A.H. was wrongfully retained in the United States, the Court must grant the Petition unless Respondent has satisfied her burden of establishing an affirmative defense under the Hague Convention. In her Answer and at trial, Respondent asserted the affirmative defense that A.H. is well-settled in Miami. See Answer at 14–16. As discussed in more detail below, the Court finds that Respondent has not established, by a preponderance of the evidence, that A.H. is well-settled in the United States.

“The Convention treats petitions filed in the first year differently from those filed more than one year after a child is removed: if the petition is filed within one year of the abduction, the signatory country where the child is located ‘shall order the return of the child forthwith’; but when a parent petitions for return more than a year after a child has been removed, the signatory country ‘shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.’ ” Fernandez v. Bailey, 909 F.3d 353, 359 (11th Cir. 2018) (quoting Hague Convention art. 12). The Eleventh Circuit has instructed that “a child is settled within the meaning of ICARA and the Convention when a preponderance of the evidence shows that the child has significant connections to their new home that indicate that the child has developed a stable, permanent, and nontransitory life in their new country to such a degree that return would be to the child's detriment.” Id. at 361 (citing Hernandez v. Garcia Pena, 820 F.3d 782, 787 (5th Cir. 2016); Lozano v. Alvarez, 697 F.3d 41, 56 (2d Cir. 2012), aff'd sub nom. Lozano v. Montoya Alvarez, 572 U.S. 1, 134 S.Ct. 1224, 188 L.Ed.2d 200 (2014)). “[T]he ‘settled’ inquiry requires courts to carefully consider the totality of the circumstances.” Id. Courts may consider a number of factors in analyzing the well-settled exception, including the child's living environment, parental involvement, measures taken to conceal a child's whereabouts, the child's age, the child and parent's immigration status, residential stability, the child's attendance at school or church, the parent's employment and financial stability, the presence of friends or relatives in the area, and the extent to which the child maintains ties with the country of habitual residence. See Taylor v. Taylor, No. 10-61287, 2011 WL 13175008, at *7 (S.D. Fla. Dec. 13, 2011).

As an initial matter, Petitioner did not properly seek relief under the Hague Convention until bringing the instant Petition before this Court on November 10, 2023, nearly twenty months after A.H.’s wrongful retention in the United States began. See (ECF No. 1). And, as the United States Supreme Court held in Lozano, equitable tolling does not apply to extend time limitations under the Hague Convention. Lozano, 572 U.S. 1, 18, 134 S.Ct. 1224, 188 L.Ed.2d 200 (2014). Accordingly, Respondent properly raises the affirmative defense that A.H. is well-settled in the United States.

Respondent argues that A.H. is well-settled after residing in Miami for most of her life, based on the following: (1) she attends daycare and church in Florida; (2) she has many family members in Florida; (3) Respondent is the process of applying for permanent resident status, so A.H. is not under threat of removal; and (4) Respondent has support from her family and stable employment as a paralegal in Florida. Answer at 15–16. Respondent further argues that A.H. has no friends in Canada, has no physical connections with Canada, and might be detrimentally affected if she were to be uprooted from her life in Florida and required to return to Canada. Resp't’s Proposed Findings at 26. Petitioner argues that A.H. is not well-settled because (1) A.H. is only a toddler, so she does not participate in significant extracurricular activities in her community; and (2) Respondent's “questionable immigration status further undercuts any stability they may presently enjoy in the United States.” Pet'r’s Proposed Findings at 27–28.

In evaluating the factors relevant to the well-settled defense, the Court finds that Respondent has failed to show by a preponderance of the evidence that A.H. is well-settled in Florida. Although A.H. has spent most of her life in Florida at this point, A.H. is only about four years old and does not participate in significant extracurricular activities in her community besides attending daycare for a few hours per day. Importantly, Respondent and A.H.’s future in the United States is unclear, as Respondent's stay in the United States may come to an abrupt end depending on the outcome of her pending immigration application pursuant to VAWA. While the Court will not attempt to predict the outcome of Respondent's immigration proceedings, Respondent's inconsistency-laden testimony did very little to convince the Court of her credibility. See In re Ahumada Cabrera, 323 F. Supp. 2d 1303, 1314 (S.D. Fla. 2004) (noting that the “uncertain immigration status of a parent ․ is a factor suggesting that a child is not settled”).

In light of A.H.’s young age, the fact that she has family in Canada, and Respondent's testimony that she would return to Canada if her immigration application is rejected, the Court finds that Respondent has not established that A.H. is well-settled in the United States by a preponderance of the evidence. Even if Respondent could show that A.H. is well-settled in the United States, the Court would still exercise its “equitable discretion under the Hague Convention” and order A.H.’s return to Canada. Lozano, 572 U.S. at 18, 134 S.Ct. 1224 (Alito, J., concurring); see also Hague Convention art. 18 (explaining that a court may “order the return of the child at any time”); Romanov v. Soto, No. 3:21-CV-779-MMH-MCR, 2022 WL 356205, at *11 (M.D. Fla. Feb. 7, 2022) (noting that a court should not create incentive for delaying Hague Convention proceedings and reward the ongoing wrongful retention of a child).

III. CONCLUSION

UPON CONSIDERATION of the foregoing, the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that the Petition (ECF No. 1) is GRANTED. It is FURTHER ORDERED that:

1. A.H. shall be returned to Canada in accordance with this Judgment, accompanied by her father, Eric John Horacius, within 10 days of this Order.

2. To the United States Marshal's Service and all other federal, state, and local law enforcement officers: The Petitioner, Eric John Horacius, has the authority and the lawful custody to remove A.H. from the United States of America in order to return her to Canada. The United States Marshal's Service may disclose A.H.’s full name and other identifying information to other federal, state, and local law enforcement officers in order to effectuate this Order.

3. Respondent is ordered to cooperate with Petitioner in returning A.H. to Canada and may accompany A.H. at Respondent's discretion.

4. Pursuant to 22 U.S.C. § 9007(b)(3), Petitioner is entitled to file a motion for attorneys’ fees and costs. The Court retains jurisdiction to determine the amount of attorneys’ fees and costs Petitioner is entitled to.

DONE AND ORDERED in Chambers at Miami, Florida, this 7th day of March, 2024.

FOOTNOTES

1.   References to the Bench Trial Transcripts are noted as “Day _ Trial Tr.”

2.   Pursuant to Federal Rule of Civil Procedure 5.2(a), the minor child's initials are used in lieu of her full name and only her year of birth is stated. See Fed. R. Civ. P. 5.2(a)

3.   To the extent that any finding of fact is more aptly characterized as a conclusion of law, or any conclusion of law is more aptly characterized as a finding of fact, the Court adopts it as such.

K. MICHAEL MOORE, UNITED STATES DISTRICT JUDGE