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Mauvais v. Herisse

United States Court of Appeals, First Circuit

November 5, 2014

MANEL MAUVAIS, Petitioner, Appellee,
v.
NATHALIE HERISSE, Respondent, Appellant

Page 7

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. George A. O'Toole, U.S. District Judge.

Allison Flood, with whom James Verner Moore and Harvard Legal Aid Bureau, were on brief for appellant.

Matthew P. Barach, for appellee.

Before Torruella, Dyk,[*] and Kayatta, Circuit Judges.

OPINION

Page 8

TORRUELLA, Circuit Judge.

Petitioner-Appellee Manel Mauvais (the " father" ) filed a petition for the return of his two minor children, M.M. and R.M., to Canada pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89 (the " Hague Convention" or the " Convention" ), as implemented by the International Child Abduction Remedies Act, 22 U.S.C. § 9001 et seq. (" ICARA" ). In September 2013, Respondent-Appellant Nathalie Herisse (the " mother" ) took the children from Canada, where the parents and children had lived for approximately three-and-a-half years, and relocated them to the United States, where the entire family had never lived together.

After a bench trial and consideration of the parties' submissions, the United States District Court for the District of Massachusetts granted the father's petition, determining that Canada was the children's country of habitual residence and that there was no grave risk that returning the children to Canada would expose them to physical or psychological harm. After careful consideration of the evidence and the parties' arguments, we affirm.

I. Background

A. Family History

The mother and father are both citizens of Haiti, where they met and began a romantic relationship in 2002. The parties disagree on whether they were formally married, but the father attests that he obtained a divorce from the mother in Haiti in November 2012 and that he remarried

Page 9

in 2013. Currently, the father lives in Canada and the mother lives in Boston, Massachusetts.

Together, they have two female children: M.M. was born in France in December 2005, and is now nearly nine years old; and R.M. was born in the United States in November 2009, and is approximately five years old. The father also has three other children, including twins -- B.M. (male) and S.M. (female), who are now between nine and ten years old -- from a previous relationship.[1]

During the course of their approximately ten-year relationship, the parties intermittently lived together, principally in Haiti and Canada. They lived separately in Haiti from 2002 to 2005. From some point in 2005 until 2007, the father lived in St. Maarten and the mother lived in France, where she gave birth to their daughter, M.M. After this period abroad, the parties both moved back to Haiti, where they lived together from 2007 until 2009.

In September 2009, the mother moved from Haiti to live with her aunt in Massachusetts, where R.M. was born two months later. Meanwhile, M.M. remained with her father in Haiti. The mother did not return to live in Haiti.

In January 2010, less than two months after R.M.'s birth, a catastrophic earthquake devastated the parties' community in Haiti. Following the earthquake, in February 2010, the father and M.M. moved to Qué bec, Canada, where members of the father's family lived. The mother testified that she asked the father to bring M.M. to Massachusetts, but he refused and urged her to join him in Canada instead. She further testified that he threatened to harm or kill M.M. if she refused to join him, so she reluctantly took R.M. and moved to Canada in March 2010. The father denies the allegations that he threatened any physical harm.

At first, the family lived in Montré al, Qué bec, with the father's sister and her family. In July 2010, the parents moved into their own apartment, along with their two daughters and the father's twin children. In January 2011, the mother moved out, taking M.M. and R.M. with her, and leaving behind the father and his older twins. At first the mother and her daughters briefly lived with the mother's relatives in the area, before they moved to a separate apartment in Montré al.

Over one year later, in February or March 2012, the father prevailed upon the mother to allow him to rejoin her, and he and his other children moved into her apartment. The parties lived together for some time thereafter.

During the family's time in Qué bec, M.M. and R.M. visited regularly with relatives on both sides of the family, attended church and Sunday school, and developed Qué bé cois (French Canadian) accents. M.M. attended a Qué bec primary school during the 2011-2012 and 2012-2013 school years, and was pre-enrolled in the same school for the 2013-2014 school year. R.M. was enrolled in a full-time day care program from the end of April 2013 until late August 2013.

In the fall of 2012, R.M. began to exhibit health problems, including frequent nosebleeds and weight loss. The mother decided that R.M., as a U.S. citizen, should return to the United States to receive medical care. For that reason, the father and mother agreed that the mother's aunt could bring R.M. to the United States for

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medical care; the parties' written agreement provided that R.M. would be returned to Canada around September 20, 2013. In the fall of 2013, R.M. was examined and treated for eczema, a tendency to experience nosebleeds, and mild anemia, for which she was prescribed an iron supplement.

R.M. was not returned to Canada as agreed. Instead, on September 13, 2013, the mother left Canada with M.M. and traveled to her aunt's home in Massachusetts, where the mother and the two children remained through oral argument in this case.

B. Procedural History

On November, 26, 2013, the father filed a petition in the United States District Court for the District of Massachusetts, seeking a court order for the return of M.M. and R.M. to Canada, pursuant to the Hague Convention and its implementing statute, ICARA. After a bench trial, the district court concluded that the father's petition should be granted and the children be returned to Canada.

In support of that determination, the district court made several findings of fact and conclusions of law. Among those facts, the district court found that the parties' actions demonstrated that they " both were content" for the children to live in Canada for at least two years immediately prior to the children's removal to Massachusetts. The court found that even after the mother stopped living with the father, she chose to remain in Canada in her own household with the children. During this time, the children led " settled" and " acclimatized" lives in Canada, where they attended school and participated in social activities. The court thus concluded that Canada was the children's habitual country of residence at the time of their removal, and they were wrongfully removed or retained for purposes of the Hague Convention.

The district court further found that returning the children to Canada would not involve a grave risk of physical or psychological harm. The court noted that the mother admitted that the father has never harmed or attempted to harm M.M. or R.M. It further found it " telling" that even after the mother moved out, she took no steps to prevent the father from having contact with the children. Therefore, the court granted the father's petition for the return of M.M. and R.M. to Canada. This appeal followed.

II. Discussion

" The Hague Convention is a multilateral treaty designed to address 'the problem of international child abductions during domestic disputes.'" Neergaard-Colón v. Neergaard, 752 F.3d 526, 529-30 (1st Cir. 2014) (quoting Abbott v. Abbott, 560 U.S. 1, 8, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010)). To effect this goal, " [t]he Convention seeks 'to secure the prompt return of children wrongfully removed to or retained in any Contracting State,' and 'to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.'" Abbott, 560 U.S. at 8 (quoting Hague Convention, art. 1).

The " return remedy" is the " central operating feature" of the Convention, id. at 9, and " lays venue for the ultimate custody determination in the child's country of habitual residence rather than the country to which the child is abducted," Lozano v. Montoya Alvarez, 134 S.Ct. 1224, 1228, 188 L.Ed.2d 200 (2014); see also Abbott, 560 U.S. at 20 ( " The Convention is based on the principle that the best interests of the child are well served when decisions regarding custody rights are

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made in the country of habitual residence." ). Rather than " alter[ing] the existing allocation of custody rights," the return remedy instead " allow[s] the courts of the home country to decide what is in the child's best interests." Abbott, 560 U.S. at 20. " It is the Convention's premise that courts in contracting states will make ...


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