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Mendez v. May

United States Court of Appeals, First Circuit

February 13, 2015

FEDERICO MENDEZ, Petitioner, Appellee,
v.
MAYA K. MAY, Respondent, Appellant

Page 338

[Copyrighted Material Omitted]

Page 339

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. Leo T. Sorokin, U.S. District Judge.

David H. Chen, with whom John A. Sten and McDermott Will & Emery LLP were on brief, for appellant.

Amber R. Cohen, with whom Cohen Cleary, P.C. was on brief, for appellee.

Before Lynch, Chief Judge, Souter, Associate Justice,[*] and Stahl, Circuit Judge.

OPINION

Page 340

STAHL, Circuit Judge.

Petitioner-Appellee Federico Mendez filed a petition pursuant to the Hague Convention on the Civil Aspects of Child Abduction (" the Convention" ), as implemented by the International Child Abduction Remedies Act, 22 U.S.C. § 9001 et seq., to return his seven-year-old son C.F.F.M. to Argentina. Petitioner claims that Respondent-Appellant Maya K. May, the child's mother, wrongfully removed the child to the United States in February 2014. After a three-day bench trial, the district court granted the father's petition and ordered the child's return, reasoning that, inter alia, C.F.F.M.'s habitual residence lay in Argentina because Petitioner never fully agreed to allow C.F.F.M. to move to the United States. We disagree, and reverse the district court's grant of the petition and order returning the child to Argentina.

I. Background

Petitioner is a citizen of Argentina who resides in Buenos Aires. Respondent is a U.S. citizen and permanent resident of Argentina. The two began dating in 2005 and lived in the U.S. for a brief period of time before settling in Buenos Aires in 2006. Respondent gave birth to their child, C.F.F.M., in Buenos Aires on December 3, 2007. C.F.F.M. is a citizen of both Argentina and the United States. He attended school in Buenos Aires from 2010 through the end of the Argentine school year in December 2013.

Though Petitioner and Respondent never married, the family lived together until 2009, when the couple's romantic relationship deteriorated and Petitioner moved out.[1] That summer, the parties reached a child custody agreement which provided that C.F.F.M. would reside with his mother and granted the father visitation from Thursday evenings until Sunday nights. Per the 2009 agreement, Respondent could travel outside Argentina with C.F.F.M. for fifteen days in the Argentine winter and up to forty-five days during the Argentine summer; the agreement required Petitioner to authorize Respondent's travel with C.F.F.M. in accordance with that plan.

Page 341

Respondent took C.F.F.M. on multiple trips to the United States in accordance with this plan.

The parties experienced difficulties in their parenting relationship after they ceased cohabiting. In 2011, they argued outside Respondent's apartment the day she returned from a forty-five day trip to the United States with C.F.F.M. Although he was not entitled to visitation that day, Petitioner asked to see the child, and Respondent told him it was not a good time. Petitioner forced his way into her apartment and pushed her to the ground in the process. Later that year, the two engaged in a yelling match in C.F.F.M.'s presence during a car ride. Petitioner called Respondent " trash" and locked her out of the car, driving away with the child. After that argument, Respondent denied Petitioner visitation for four months. Petitioner sought judicial intervention and the Argentine family court restored his visitation rights. Additionally, the parties filed domestic violence complaints against each other. After an investigation, an Argentine board issued a report finding that Respondent was the victim of Petitioner's physical and psychological violence and that C.F.F.M. was a victim insofar as he witnessed the fight in the car.

In December 2012, the parties negotiated and executed a new coparenting agreement. Respondent retained custody and the agreement reduced Petitioner's visitation. The 2012 agreement permitted Respondent to travel abroad with the child for up to forty-five days each ...


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