Opinion
Case No. 1:20-cv-24208-KMM
2021-03-15
Jose DE JESUS JOYA RUBIO, Petitioner, v. Yelaine Menendez ALVAREZ, Respondent.
Clayton Reed Kaeiser, Clayton R. Kaeiser, P.A., Miami, FL, for Petitioner. Anna Marie Gamez, Holland & Knight, Lawrence Sheldon Katz, Lawrence S. Katz, P.A., Miami, FL, Benjamin Anthony Taormina, Holland and Knight, Fort Lauderdale, FL, for Respondent.
Clayton Reed Kaeiser, Clayton R. Kaeiser, P.A., Miami, FL, for Petitioner.
Anna Marie Gamez, Holland & Knight, Lawrence Sheldon Katz, Lawrence S. Katz, P.A., Miami, FL, Benjamin Anthony Taormina, Holland and Knight, Fort Lauderdale, FL, for Respondent.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
K. MICHAEL MOORE, CHIEF UNITED STATES DISTRICT JUDGE
THIS CAUSE came before the Court following a bench trial held January 11, 2021 through January 14, 2021. (ECF Nos. 35, 36, 37, 41); Transcripts of Bench Trial (ECF Nos. 42, 43, 44, 45). On October 14, 2020, Petitioner Jose de Jesus Joya Rubio ("Petitioner") filed a Verified Petition for the Return of the Child Pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, Preliminary Injunction, and Monetary Damages. ("Pet.") (ECF No. 1). Therein, Petitioner seeks the return of his minor child, R.M.J.M., to Mexico 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 R.M.J.M.’s mother, Yelaine Menendez Alvarez ("Respondent"), wrongfully removed the Parties’ minor child, R.M.J.M., from Mexico to the United States under false pretenses and has wrongfully retained the child therein in violation of Petitioner's custody rights which he exercised at the time of removal. Pet. ¶ 5.
References to the Bench Trial Transcripts are noted as "Day ___ Trial Tr."
Pursuant to Federal Rule of Civil Procedure 5.2(a), the minor child's initials are used in lieu of his full name and only his year of birth is stated. See Fed. R. Civ. P. 5.2(a)
On November 2, 2020, Respondent filed her Answer and Affirmative Defenses. ("Answer") (ECF No. 9). On November 9, 2020, the Parties filed a Joint Scheduling Report wherein they requested that the Court rule on Respondent's Third Affirmative Defense prior to trial. (ECF Nos. 12, 13). On December 8, 2020, the Court entered an Order Striking Respondent's Third Affirmative Defense. (ECF No. 18). Following the bench trial, the Parties submitted post-trial proposed findings of fact and conclusions of law. See Petitioner's Proposed Findings of Fact and Conclusions of Law ("Pet'r's Proposed Findings") (ECF No. 48); Respondent's Proposed Findings of Fact and Conclusions of Law ("Resp't's Proposed Findings") (ECF No. 49).
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). For the reasons set forth below, the Petition is DENIED.
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.
I. FINDINGS OF FACT
At trial, the Parties painted different pictures of their relationship and the events that transpired. However, much of what the Parties dispute is immaterial to the narrow determinations under the Hague Convention. To the extent that the disputed testimony is relevant to the Court's inquiry under the Hague Convention, the Court resolves the credibility issues between Petitioner and Respondent as to each specific issue.
Petitioner testified on his own behalf and offered the testimony of Salvador Garcia Villa ("Salvador") and Fabiola Delgado Avila ("Fabiola"). Salvador was R.M.J.M.’s tennis coach in Mexico. Day One Trial Tr. 74:17–21. Fabiola is Salvador's wife and worked at the tennis club that R.M.J.M. attended. Id. 61:21–22, 62:1–2, 65:5–17.
Respondent testified on her own behalf and offered the testimony of Dr. Miguel Firpi ("Dr. Firpi") and Maday Alvarez ("Maday"). Dr. Firpi is the psychologist who evaluated R.M.J.M. and prepared an expert report in this matter. Id. 9:13; Resp't's Ex. 26 ("Expert Report"). Maday is Respondent's long-time friend who lives in Miami and whose daughter plays with R.M.J.M. Day Four Trial Tr. 42:9–20, 49:4–50:3.
B. Factual Findings
i. R.M.J.M.’s Family Background
R.M.J.M. was born in Mexico in 2008. Day One Trial Tr. 91:17–18, 92:1–4. R.M.J.M. lived in Mexico with both Petitioner and Respondent, who were not married but were in an intimate relationship that began in Cuba two to three years prior to R.M.J.M.’s birth. Id. 89:3–13, 90:23–91:18, 92:1–21. Petitioner, Respondent, and R.M.J.M. took vacations together and enjoyed a familial relationship for nearly two years, although for her first year in Mexico Respondent resided in an apartment separate from the home. Id. 94:24–95:18; Day Three Trial Tr. 64:1–4. Respondent testified that Petitioner kept her "isolated" from his older children. Day Three Trial Tr. 64:12–14. Respondent testified that she and Petitioner began to have relationship issues and she felt that Petitioner "never gave [her] a place that [she] deserved as a wife." Id. 64:9–23.
ii. Respondent's Move to the United States in 2010 With R.M.J.M.
On October 1, 2010, Respondent left Mexico with R.M.J.M. for the United States, much to Petitioner's dismay. Day Two Trial Tr. 8:6–17. Petitioner filed a report with a Mexican law enforcement agency. Id. 13:22–14:21; Pet'r's Ex. 10. Approximately two weeks after arriving in the United States, Respondent called Petitioner and asked him to join her and R.M.J.M. in Miami, Florida. Day Two Trial Tr. 15:7–18. Petitioner traveled to Miami and, while there, rented an apartment for Respondent and R.M.J.M. to live in and purchased Respondent a used car. Id. 16:4–9. Petitioner also signed a power of attorney in case of emergencies and for school purposes because he was seeking employment in India and would be away for a significant period of time. Id. 17:1–7. Petitioner stayed in Miami for approximately two weeks and celebrated R.M.J.M.’s birthday with a visit to Crandon Park and dinner at the Rusty Pelican. Id. 16:15–25.
In their pretrial briefs, the Parties disputed the year that Respondent left Mexico for the United States; Petitioner claimed it was 2010 while Respondent claimed it was 2009. Pet. ¶ 10; Answer ¶ 10. During trial, Respondent explained that she was mistaken as to the year and was relying on a date noted on her residency card. Day Three Trial Tr. 66:24–68:3. The Court finds Respondent's explanation credible, and more importantly, that the date Respondent first left for the United States with R.M.J.M. is not particularly relevant to the instant Petition involving Respondent's actions taken nearly nine years later.
Petitioner continued to support Respondent the following year by renting her another apartment in September 2011. Id. 23:7–12. Shortly thereafter, Respondent left that apartment to be with the father of her second child. Id. 25:1–3. Petitioner lost contact with Respondent and R.M.J.M. for approximately one year, from December 2011 to December 2012. Id. 26:13–23. Respondent did not contact Petitioner during that time, and Petitioner did not have Respondent's contact information. Id. 26:24–27:4. Contact resumed in January 2013, and thereafter Petitioner would visit R.M.J.M. in Miami once or twice a year. Id. 28:8–10, 29:10–15. During those visits, Respondent would bring R.M.J.M. to Petitioner's hotel to visit with him. Id. 29:16–22. Petitioner did not know Respondent's address in Miami. Id. 29:24–25.
iii. R.M.J.M.’s Travel to Mexico in 2016
Sometime before the summer of 2016, Respondent surprised Petitioner by telling him that she wanted R.M.J.M. to visit Mexico during the summer. Id. 32:17–23. R.M.J.M. traveled to Mexico on June 20, 2016. Id. 34:25–35:2. The Parties dispute whether there was an agreed-upon date for R.M.J.M.’s return to the United States. Id. 34:3–24; Day Three Trial Tr. 79:1–80:5; Pet'r's Ex. 12. The travel authorization Respondent executed on R.M.J.M.’s behalf stated: "NOTA: ESTA AUTORIZACION ES PARA VIAJAR IDA EL DIA 20 DE JUNIO-2016 Y HASTA 24 DE JULIO 2016." Pet'r's Ex. 12; Resp't's Ex. 7. The English interpretation of that statement is: "Note: This is a travel authorization[.] Departure June 20, 2016 and until July 24, 2016." Resp't's Ex. 7. Petitioner testified that the travel authorization did not specify a return date; rather, it allowed R.M.J.M. to travel out of the United States and into Mexico anytime between June 20, 2016 and July 24, 2016. Day Two Trial Tr. 34:3–24. Respondent testified that the travel authorization allowed R.M.J.M. to travel for approximately one month, with a return date of July 24, 2016. Day Three Trial Tr. 78:4–6, 80:3–13.
The Court finds Respondent's interpretation of the travel authorization's terms to be the more reasonable one based on a plain reading of the text. Additionally, R.M.J.M. left the United States for Mexico on June 20, 2016, supporting the notion that June 20, 2016 was the intended departure date and July 24, 2016 was the intended return date. Further, Petitioner asked Respondent if R.M.J.M. could stay in Mexico longer because they had plans at the club Petitioner belongs to, and Respondent agreed so long as R.M.J.M. returned in time for the start of the upcoming school year. Day Three Trial Tr. 80:9–16; Day Four Trial 20:1–3. Regardless, what the Parties intended in terms of R.M.J.M.’s travel to Mexico and return to the United States in 2016 is not germane to the instant Petition. The inquiry before the Court is whether Respondent wrongfully removed R.M.J.M. from Mexico in 2019 and wrongfully retained him in the United States thereafter, not whether Petitioner wrongfully retained him in Mexico in 2016.
While in Mexico, R.M.J.M. told Petitioner that he did not want to return to Miami and wanted to live with Petitioner in Mexico. Day Two Trial. Tr. 35:10–17. R.M.J.M. communicated his wishes to Respondent over the phone approximately ten days into his visit with Petitioner. Id. 35:17–20, 36:18–20. Petitioner then took steps to register R.M.J.M. in the British American School in Mexico. Id. 36:21–24. On August 20, 2016, Petitioner sent Respondent an email reaffirming R.M.J.M.’s wish to remain in Mexico, and in response on August 21, 2016, Respondent said that she would not support that decision and retained lawyers in Mexico. Id. 37:22–38:5; Pet'r's Ex. 13.
Unbeknownst to Petitioner, Respondent initiated an action in a Mexican court seeking R.M.J.M.’s return to the United States but was ultimately unsuccessful. Day Three Trial Tr. 87:1–13, 89:6–12; Resp't's Ex. 31. No testimony or evidence was presented to suggest that Respondent initiated an action pursuant to the Hague Convention or ICARA. Without Respondent's knowledge, Petitioner also initiated an action in a Mexican court seeking custody of R.M.J.M. Day Two Trial Tr. 42:5–46:2; Pet'r's Ex. 1. Petitioner was successful in his action and was awarded "guarda y custodia" over R.M.J.M. on November 30, 2017. See Resp't's Ex. 2 ("Petitioner's Mexican Custody Order").
Respondent traveled to Mexico to visit with R.M.J.M. in October 2017 and October 2018. Day Three Trial Tr. 96:11–14, 108:7–12. Respondent was not notified of Petitioner's pending custody action during the October 2017 visit, nor was she notified of the final order in the custody action during the October 2018 visit. Id. 107:10–22, 109:5–8.
iv. Petitioner, Respondent, and R.M.J.M.’s Travel to the United States in 2019
In the summer of 2019, Petitioner and Respondent reached an agreement that R.M.J.M. could visit Miami, in part to maintain his residency status. Id. 110:19–111:21. Respondent traveled to Mexico, and then on July 18, 2019, Petitioner, Respondent, and R.M.J.M. flew to Miami. Day Two Trial Tr. 66:1–4; Day Three Trial Tr. 112:5–9. Upon arriving in Miami, R.M.J.M. stayed at Respondent's home overnight. Day Two Trial Tr. 67:20–22. The following day, on July 19, 2019, Respondent, R.M.J.M., and R.M.J.M.’s half-brother visited Petitioner at his hotel. Id. 67:25–68:4. What happened next is disputed by the Parties.
Petitioner testified that Respondent convinced Petitioner to purchase a video game console for R.M.J.M. Id. 68:6–7. They agreed to visit a K-Mart store to look at the prices of the video game console. Id. 68:9–11. The last time Petitioner saw his son was in the parking lot of the K-Mart store. Id. 68:14–15. Petitioner contacted Respondent and she told him "not to worry" and that R.M.J.M. "was very excited about the video game" and she would return him to the hotel later, but she never did. Id. 68:19–69:3. Petitioner reported R.M.J.M.’s abduction to the Mexican Consulate in Miami on July 26, 2019. Id. 71:9–14. Petitioner also filed a report with the City of Miami Police Department. Id. 72:1–10; Pet'r's Ex. 21. Petitioner remained in Miami until July 29, 2019, hoping to get R.M.J.M. back, and then returned to Mexico alone. Day Two Trial Tr. 72:17–23.
Respondent testified that Petitioner intended on going to the K-Mart store, and Respondent offered to drive him there. Day Three Trial Tr. 113:23–114:3. Respondent stated that she did not abandon Petitioner at the store, but that she drove him to the store, he said goodbye to the children, and she continued along her way to begin her vacation plans to visit Marco Island with R.M.J.M. Id. 114:4–7; Day Four Trial Tr. 25:7–14. Respondent communicated with Petitioner during the vacation, which lasted approximately six to seven days. Day Three Trial Tr. 115:9–13, Day Two Trial Tr. 69:1–3. After returning to Miami from vacation in Marco Island, R.M.J.M. expressed to Respondent his desire to stay in the United States with her. Day Three Trial Tr. 115:19–116:7. Respondent encouraged R.M.J.M. to discuss the issue with Petitioner, but R.M.J.M. did not want to and asked Respondent to explain his wishes to Petitioner. Id. 116:6–11. Respondent called Petitioner and relayed R.M.J.M.’s wishes, but Petitioner argued that those were Respondent's wishes and ended the call. Id. 116:12–16. Respondent was never contacted by the police, and at no point did any authorities come to Respondent's home demanding that she return R.M.J.M. to Petitioner. Id. 117:1–10.
a. Credibility Determinations
While both witnesses appeared credible, Respondent answered affirmatively when Petitioner asked on cross-examination (1) if it was her plan all along to keep R.M.J.M. in the United States in 2019; (2) if she "still felt really hurt and angry" about the 2016 incident in which Petitioner kept R.M.J.M. in Mexico; and (3) if she got her revenge when she got her son back after waiting three years. Id. 169:21–170:9. Respondent later testified that it was not about revenge, but rather that she was "doing the same thing that [Petitioner] did back in 2016." Id. 171:2–12. Respondent explained that her "objective was always for [R.M.J.M.] not to lose his residency" and that she was respecting R.M.J.M.’s decision to stay in the United States thereafter. Day Four Trial Tr. 21:10–15.
b. Factual Findings
Regardless of whether Respondent absconded with R.M.J.M. in the parking lot of the K-Mart store, or whether Petitioner understood and acquiesced to Respondent and R.M.J.M. embarking on a planned vacation to Marco Island, the Court finds that Respondent wrongfully retained R.M.J.M. in the United States in violation of the Hague Convention and ICARA. This finding is based on the testimony of the witnesses, the police report filed on July 27, 2019, and a July 29, 2019 email from Respondent to Petitioner in which Respondent acknowledges that Petitioner has "documents" from Mexico reflecting his custody rights. See Pet'r's Exs. 19, 21.
The July 29, 2019 email from Respondent to Petitioner, translated in English, reads in relevant part: "I will support [R.M.J.M.], he wants to be here[.] I know you have the documents, but well, you can keep them[.] I don't need them[.] I know this is not the plan, but nothing, I started to feel angry when you showed the document where supposedly you have custody [of R.M.J.M.] for me to see that in Mexico any document can be made. Now I tell you what you said 3 years ago. I hope you understand and can support him. Have an excellent day[.]" Day Two Trial Tr. 70:17–19; Pet'r's Ex. 19.
v. Legal Remedies Sought Prior to the Instant Action
After returning to Mexico without R.M.J.M., Petitioner filed a request with the Mexican Central Authority, Foreign Relations, seeking the return of R.M.J.M. pursuant to the Hague Convention with the assistance of an attorney. Day Two Trial Tr. 73:15–74:10; Pet'r's Ex. 22. Petitioner did not have any direct contact with the United States Department of State ("State Department"), but he believes that the State Department confirmed receipt of the request "through the secretary of the foreign office." Day Two Trial Tr. 74:11–18. On September 20, 2019, Petitioner signed a retainer agreement with an attorney in the United States, who he believed was going to file a petition under the Hague Convention. Id. 76:1–13; Pet'r's Ex. 25. Petitioner later realized that the attorney "followed a different procedure" and, at some point after May 2020, the State Department informed the central authority in Mexico, who in turn informed Petitioner, "that they did not accept the case under the Hague." Day Two Trial Tr. 77:4–10. Instead of seeking relief pursuant to the Hague Convention, on September 20, 2019 Petitioner's attorney filed a Petition to Domesticate and Enforce an Out-of-State Custody Decree (UCCJEA) in the Circuit Court for the Eleventh Judicial Circuit in and for Miami-Dade County, Florida, Family Court Division ("State Court Action"). See Pet'r's Proposed Findings at 9; Resp't's Proposed Findings at 5; Pet'r's Ex. 24; Resp't's Ex. 1. After being served in the State Court Action, on April 10, 2020 Respondent filed her Answer and Counter-Petition for Determination of Paternity, Parenting Plan, Child Support and Other Relief, or in the Alternative, Petition for Modification and Permanent Relocation of the Minor Child. Resp't's Ex. 2. On July 17, 2020, the state court entered a Partial Final Judgment Denying Petition to Domesticate Foreign Custody Decree. Pet'r's Ex. 24. Respondent's Counter-Petition in the State Court Action remains pending. Resp't's Proposed Findings at 6.
Petitioner did not object to Respondent's Expert, Dr. Firpi, as an expert and the Court recognizes him as such. Day One Trial Tr. 4:14–18, 10:18–11:2.
Respondent retained clinical psychologist Miguel Firpi, PhD ("Dr. Firpi") to assist the Court with its analysis of Respondent's defenses. See generally Expert Report. Namely, Dr. Firpi evaluated R.M.J.M. to opine on R.M.J.M.’s maturity and whether there was any grave risk if he were to be returned to Mexico. Day One Trial Tr. 16:13–21. Dr. Firpi interviewed both Petitioner and Respondent, met with and examined R.M.J.M. both in person and via Zoom, and issued a written report on December 21, 2020. See Expert Report. Further, Dr. Firpi testified at trial as to his findings. Day One Trial Tr. 6:5–58:10.
Dr. Firpi concluded, both in his written report and at trial, that R.M.J.M. is mature and balanced in his thinking, particularly as it relates to the issue of remaining in the United States versus being returned to Mexico. Id. 35:19–36:10 ("I think for a 12-year-old, he's actually a little bit more mature than most 12-year-olds I know in his ability to think, in his ability to formulate [and] view a situation as complex.... He had not approached this problem as taking sides; rather, as he's going to have both his parents, it's going to be different. I think that is [a] uniquely mature way of seeing this.... This kid is very, very balanced in his view of both parents."); Expert Report at 16 ("Based on the evaluation findings, including the formal psychological testing, interviews of the child and the parents, and a review of relevant documents, the evaluator concludes that from a psychological point of view, [R.M.J.M.] has reached his opinion and formulated his objection to return to Mexico in an independent, reasonable manner, which displays logical and mature thinking for a twelve year old.").
Dr. Firpi testified that R.M.J.M.’s objections to returning to Mexico are based on the fact that he can continue to maintain a relationship with both parents, and "he feels strongly that he has a home here with a brother that he wants to be around and a mother that he feels has been effective in guiding him [and] making his life better ...." Day One Trial Tr. 36:13–20. Dr. Firpi opined that "I think he was aware that ... he was limping along in terms of the academic and learning issues ... [and] he gets a lot more support here and that he would not be in a good place if he returned to school in Mexico." Id. 36:21–37:1. Dr. Firpi elaborated that R.M.J.M. "felt he was kind of sliding down [with his schooling in Mexico] and it didn't stop until he got [to the United States]" and he "feels a real connection with his mom" related to her care for him. Id. 40:12–14. That care included engaging a neurologist and child psychiatrist and resulted in R.M.J.M.’s diagnosis of Attention Deficit Hyperactivity Disorder ("ADHD"), getting him treatment for that condition, and going through the Individualized Education Program ("IEP") process with his school. Id. 40:15–19; Expert Report at 16 ("[R.M.J.M.] maintains that the schools in the United States provide him a better place to learn. He commented that he is very happy that his attention deficits have diminished as a result of being treated with [medication]. Contrary to many children his age who resist the notion of medication, [R.M.J.M.] welcomes it and believes it has been a productive decision for him.").
Dr. Firpi opined that R.M.J.M.’s opinion did not appear to be coerced or influenced by either parent, nor did Dr. Firpi see any evidence of parental alienation. Day One Trial Tr. 40:23–25, 41:14–16; Expert Report at 15 ("In reaching his conclusions, [R.M.J.M.] made some projections into the future as to what his life would be like under either option. He did not appear to feel coerced or pressured by either parent. He is convinced that his Mother would allow him to live in Mexico if that is what he decided. He knows his Father wants him back, but he does believe his Father will be ‘fine’ if he stayed in the [United States] because they will be spending lots of time together on vacations and visits.").
Petitioner did not present any testimony or evidence impeaching or contradicting Dr. Firpi's opinion. On cross-examination, Petitioner inquired as to whether Dr. Firpi had used the Parent-Child Relationship Inventory or the Parental Acceptance Rejection Questionnaire as part of the overall evaluation. Day One Trial Tr. 54:19–55:6. Dr. Firpi testified that a language barrier prevented him from administering those tests. Id. 55:4–6. Dr. Firpi testified that he would have given the parents a different test—the BASC—but he did not have a Spanish version of it and was not confident that the Spanish version would be an adequate measure given "the changes in languages that are occurring all across the spectrum of Latin America and the very different idiomatic expressions." Id. 55:8–12.
Petitioner established through Dr. Firpi that R.M.J.M. had a good relationship with his Father, he enjoyed very nice accommodations in Mexico, and Dr. Firpi found no evidence that there would be grave risk to returning R.M.J.M. to Mexico. Id. 43:17–44:2.
The Court finds that Dr. Firpi's report was thorough and well-supported, and his testimony was consistent with his report. As such, the Court finds the report and testimony Dr. Firpi to be credible and compelling.
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 removal or retention under the Convention. The Court first discusses Petitioner's prima facie case, and next turns to Respondent's affirmative defenses.
i. Petitioner Has Met His Burden of Presenting a Prima Facie Case
Petitioner argues that he has proven his prima facie case for Respondent's wrongful removal and retention of R.M.J.M. Pet'r's Proposed Findings at 11–15. Respondent argues that Petitioner failed to prove a prima facie case, specifically challenging whether Mexico was the R.M.J.M.’s habitual residence prior to his removal, and whether Petitioner possessed rights of custody at the time of the removal. Resp't's Proposed Findings at 13–15.
a. Habitual Residence
Petitioner argues that Mexico was R.M.J.M.’s habitual residence at the time of R.M.J.M.’s removal in 2019. Pet'r's Proposed Findings at 13. Respondent argues that Mexico was not R.M.J.M.’s habitual residence because (1) R.M.J.M. "resided with [Respondent] in the United States since October 2009, shortly before he turned two years old, until [Petitioner's] wrongful retention in the summer of 2016"; (2) R.M.J.M. "obtained his permanent residence status in the United States in 2011"; and (3) R.M.J.M. "returned to the United States in July 2019 after [Petitioner's] wrongful retention in Mexico since July 2016 to avoid losing said residency." Resp't's Proposed Findings at 14.
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) ). "For older children capable of acclimating to their surroundings, courts have long recognized, facts indicating acclimatization will be highly relevant." Monasky v. Taglieri , ––– U.S. ––––, 140 S. Ct. 719, 727 & n.3, 206 L.Ed.2d 9 (2020) ("Facts courts have considered include: a change in geography combined with the passage of an appreciable period of time, age of the child, immigration status of child and parent, academic activities, social engagements, participation in sports programs and excursions, meaningful connections with the people and places in the child's new country, language proficiency, and location of personal belongings.") (citation and internal quotation marks omitted).
Here, the parents did not have a shared settled intention for R.M.J.M. to reside in Mexico. Immediately prior to the wrongful removal and retention at issue here, R.M.J.M. resided in Mexico for approximately three years, from age seven to age ten. Pet'r's Proposed Findings at 6–8; Resp't's Proposed Findings at 2–5. Petitioner is a Mexican citizen; Respondent is a Cuban citizen and permanent United States resident; and R.M.J.M. is a birthright Mexican citizen, registered as a Cuban national, and a permanent United States resident. Pet'r's Proposed Findings at 2; Resp't's Proposed Findings at 2. R.M.J.M. attended the British American School, a private bilingual school, beginning in August 2016. Day Two Trial Tr. 39:9–23. R.M.J.M. maintained good communication with Respondent while in Mexico, talking with her on the phone "practically every day." Id. 46:7–11; Day Three Trial Tr. 109:2–4. Petitioner established that R.M.J.M. was excelling academically while in Mexico. Day Two Trial Tr. 55:11–57:19; Pet'r's Ex. 23. In at least one email, Respondent commented on R.M.J.M.’s "good grades" and commended both R.M.J.M. and Petitioner for doing a "good job." Day Two Trial Tr. 49:1–15. Pet'r's’ Ex. 16. R.M.J.M. would interact with Petitioner's older children and got along with them "very well." Day Two Trial Tr. 52:22–53:1. R.M.J.M. and Petitioner vacationed frequently in Acapulco. Id. 53:15–16. R.M.J.M. became involved with tennis beginning in January 2017. Id. 53:23–25. Petitioner entered several photographs into evidence depicting R.M.J.M. as happy and well-socialized, including a picture of R.M.J.M. and Petitioner by a pool in Acapulco; a picture of R.M.J.M. and Petitioner in their Mexico home's rooftop garden; a picture of R.M.J.M. and Petitioner at a bullfight; a picture of R.M.J.M., Petitioner, and another boy after R.M.J.M. won a tennis tournament; a picture of R.M.J.M. dressed for a school festival celebrating different countries around the world; and a picture of R.M.J.M., Petitioner, and several family friends in Acapulco. Id. 58:8–60:11; Pet'r's Ex. 8.
While Respondent may not have wished for R.M.J.M. to reside in Mexico, she at some point accepted him being there as evidenced by never herself having sought R.M.J.M.’s return to the United States pursuant to the Hague Convention and ICARA; unenrolling him in United States government programs; sending him packages in Mexico; and visiting him in Mexico to celebrate two of his birthdays. Day Two Trial Tr. 48:2–9; Day Three Trial Tr. 92:16–93:6, 102:12–19, 108:7–15; Pet'r's Ex. 15.
Accordingly, the Court finds that Petitioner established Mexico was R.M.J.M.’s habitual residence from 2016 through 2019, immediately prior to the events giving rise to this action. This finding is based on R.M.J.M. residing in Mexico for three years; being a birthright citizen of Mexico; attending school in Mexico; and having an otherwise active social life in Mexico that included playing tennis competitively and frequently vacationing on Acapulco. See Monasky , 140 S. Ct. at 727 & n.3.
b. Rights of Custody
Petitioner argues that he was exercising his custody rights pursuant to Petitioner's Mexican Custody Order at the time of R.M.J.M.’s removal. Pet'r's Proposed Findings at 14. Respondent argues that Petitioner's Mexican Custody Order granting Petitioner "guarda y custodia" does not establish his custody rights because it (1) was obtained in violation of Respondent's rights of due process; and (2) only provides physical custody, not "rights of custody" as required by the Hague Convention or ICARA. Resp't's Proposed Findings at 14–15.
"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 removal of a child from the country of his or her habitual residence is ‘wrongful’ under the Hague Convention if the petitioner ‘is, or otherwise would have been, exercising custody rights to the child under that country's law at the moment of removal.’ " Id. at 936. (citation omitted). "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. Accordingly, a prima facie case requires that Petitioner show, by a preponderance of the evidence, that (1) Mexico was the child's habitual residence prior to removal; (2) the child's removal breached a right of custody held by Petitioner; and (3) Petitioner was exercising said custody right(s) at the time of removal. See generally id.
Respondent sought to challenge the validity of Petitioner's Mexican Custody Order arguing that it was violative of Respondent's due process rights. Specifically, despite being in email communication with Respondent and having in-person contact with her when she visited Mexico, Petitioner failed to notify Respondent of the pending action in the Mexican Court. Day Three Trial Tr. 106:22–107:22, 109:5–23. Petitioner argued that he did not have Respondent's mailing address, and while he did have her telephone number and email address, his attorney advised him that notification could not be sent via email. Day Two Trial Tr. 126:11–20. Further, Petitioner testified that he did not notify Respondent of the pending action in person when she visited Mexico because his attorney "recommended to [him] not to say anything because the process was at the end stage, it was being finalized." Id. 132:22–133:2. The Court finds Petitioner's argument disingenuous. Petitioner had multiple opportunities, both via email and in person, to notify Respondent of the pending custody action, but he chose not to do so. Nonetheless, while Petitioner's Mexican Custody Order may have been procured fraudulently, that is a matter for a Mexican court to consider.
Respondent further sought to challenge the validity of Petitioner's Mexican Custody Order arguing that it only provides physical custody, not "rights of custody" as required by the Hague Convention or ICARA. Day Four Trial Tr. 55:11–20. However, Respondent failed to demonstrate how that is so. Respondent argues that Mexican courts "look to the doctrine of patria potestad or patria potestas to determine the rights, responsibilities and obligations of parents, including the care and custody over children." Resp't's Proposed Findings at 14. While that doctrine may provide one avenue to finding a right of custody, Respondent fails to show that Petitioner's Mexican Custody Order is somehow inferior or irrelevant to the instant Petition. See In re S.L.C. , 4 F. Supp. 3d 1338, 1347–48 (M.D. Fla. 2014) (discussing the doctrine where custody proceedings were pending); Lalo v. Malca , 318 F. Supp. 2d 1152, 1156 (S.D. Fla. 2004) (finding that where the parties’ divorce decree specifically incorporates patria potestas , the doctrine amounts "to more than a mere right of access and confers a divisible custody right"). Petitioner's Mexican Custody Order provides a right of custody sufficient to give rise to a claim under the Hague Convention and ICARA. See Furnes , 362 F.3d at 714.
At trial, Respondent sought to admit an affidavit from a Mexican attorney in support of this argument. Day Four Trial Tr. 52:15–18. However, the Court excluded the affidavit finding nothing therein where the attorney explained why, as a matter of Mexican law, the "guard and custody" provided in Petitioner's Mexican Custody Order does not satisfy the Hague Convention and ICARA requirements. Id. 56:10–15. Rather, the Court found that the affidavit reflected the affiant's factual conclusions as to how Petitioner's Mexican Custody Order violated Respondent's due process rights. Id. 56:15–24. Accordingly, the Court declined to admit the affidavit noting it was hearsay that Petitioner would not have an opportunity to challenge the reliability of on cross-examination. Id. 57:1–6.
Accordingly, the Court finds that Petitioner met his burden of showing that Respondent's removal and retention of R.M.J.M. breached Petitioner's custody rights, which he was exercising at the time of R.M.J.M.’s removal and retention.
ii. Respondent's Affirmative Defenses
The Court now turns to whether Respondent has satisfied her burden of establishing an affirmative defense under the Convention. In her Answer and at trial, Respondent asserted the following affirmative defenses: (1) R.M.J.M. is well-settled in Miami, and (2) R.M.J.M. objects to returning to Mexico and has reached an age and degree of maturity such that the Court should consider his views. See Answer 6–7. As discussed in more detail below, the Court finds that Respondent has established, by a preponderance of the evidence, that (1) R.M.J.M. is well-settled in Miami; and (2) R.M.J.M. is of a sufficient age and maturity that it is appropriate for the Court to consider his objections to repatriation. a. Respondent Has Established That R.M.J.M. is Well-Settled
As her first defense, Respondent argues that the Court should deny the Petition because Petitioner commenced these proceedings more than one year after the R.M.J.M.’s removal and retention, and R.M.J.M. is well-settled in Miami. Answer at 6–7. Specifically, Respondent argues that R.M.J.M. is well-settled after residing in Miami for seventeen months based on the following: (1) he attends school; (2) he is treated by multiple physicians, including a psychiatrist, and is covered by health insurance; (3) he is fluent in English; (4) he has made friends; (5) he has relatives and close family friends he often visits with; (6) he resides in a home owned by his Mother and her fiancé, and he lives there with them and his half-brother; and (7) he has been a legal resident of the United States since October 2011. Resp't's Proposed Facts at 16. Petitioner argues that he filed a request for relief under the Hague Convention within one month of R.M.J.M.’s abduction, and thus Respondent cannot meet the first component of the "well-settled" defense—i.e. , that more than one year passed after the abduction before Petitioner commenced proceedings under the Hague Convention and ICARA. Pet'r's Proposed Findings at 16. Even if Respondent could meet the first component, Petitioner argues that R.M.J.M. is not well-settled because (1) his participation in school has been disrupted and he has not made many friends—although Petitioner concedes that both of those factors are related to the COVID-19 pandemic and out of either Parties’ control; (2) he does not participate in community or extracurricular school activities, in contrast to Mexico where he was "highly active in tennis"; (3) he has fewer blood relatives in the United States, as compared to Mexico; (4) he and Respondent are non-citizen temporary residents of the United States; and (5) Respondent is unemployed and experiencing employment and financial instability.
"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).
Here, Petitioner argues that he met his burden of commencing proceedings under the Hague Convention within one year of R.M.J.M.’s removal and retention by virtue of filing a report with the Mexican Consulate which was transmitted to the State Department. Pet'r's Proposed Findings at 16. However, a strict reading of the statute does not demonstrate how that is so. See § 9003(b) ("Any person seeking to initiate judicial proceedings under the Convention for the return of a child ... may do so by commencing a civil action by filing a petition for the relief sought in any court which has jurisdiction of such action and which is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed."); § 9003(f)(3) ("[T]he term ‘commencement of proceedings[,]’ as used in article 12 of the Convention, means, with respect to the return of a child located in the United States, the filing of a petition in accordance with subsection (b) of this section."). Petitioner cites Zaoral v. Meza where the Southern District of Texas recently held that, because the petitioner's Hague Convention application with the Venezuelan Central Authority was transmitted to the State Department within one year of the child's removal and retention, the respondent was not permitted to rely on the well-settled defense. Zaoral , No. CV H-20-1700, 2020 WL 5036521, at *15 (S.D. Tex. Aug. 26, 2020). The Court does not find Petitioner's argument to be persuasive, particularly because in the United States it is the judiciary, and not the State Department, that has the authority to order remedies under the Hague Convention. Allowing the transmission of an application from a foreign country to the State Department to serve as "commencement of proceedings" would render § 9003(b) and (f)(3) meaningless. Moreover, doing so in this instance would not comport with the purpose of the well-settled exception which is to consider the child's interests in remaining settled after a significant period of time has passed. See Lozano , 572 U.S. at 15, 134 S.Ct. 1224 ("[T]he expiration of the [one]-year period opens the door to consideration of a third party's interests, i.e. , the child's interest in settlement."); Fernandez , 909 F.3d at 359 ("This exception accounts for the reality that ‘at some point a child may become so settled in a new environment that return is no longer in the child's best interests.’ ") (quoting Hernandez , 820 F.3d at 787 ).
The Court finds that Petitioner, whether uninformed or otherwise, very clearly sought enforcement of his custody rights in the State Court Action that commenced September 30, 2019. See Resp't's Ex. 1. Petitioner did not seek relief under the Hague Convention until bringing the instant Petition before this Court on October 14, 2020, nearly fifteen months after R.M.J.M.’s 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, the well-settled defense is available to Respondent.
In evaluating the factors relevant to the well-settled defense, the Court finds that R.M.J.M. is indeed well-settled in Miami. At the age of twelve, R.M.J.M. is enrolled in and attending school in the sixth grade in Miami where he is performing relatively well academically and has an IEP in place; he lives in a stable home environment with his six-year-old half-brother, Respondent, and Respondent's fiancé, in a three-bedroom home owned jointly by Respondent and her fiancé; he has been evaluated by a neurologist and actively sees a psychiatrist for treatment of ADHD, which has improved his ability to concentrate and focus at home and in school; he is well-acclimated and enjoys spending time and playing with his younger brother; he has his own phone that he can use to have open communication with Petitioner; he has family and family friends in the United States whose company he enjoys; and he and Respondent are legal residents of the United States. Day One Trial Tr. 25:16–26:17; Day Three Trial Tr. 120:20–135:18; Day Four Trial Tr. 36:11–37:5, 49:4–45:3; Expert Report at 14. Respondent was previously employed as a nursing assistant, but at the time of trial was not employed due to the COVID-19 pandemic. Day Three Trial Tr. 59:16–60:4. Respondent plans to return to work after these proceedings are over. Id.
The Court finds that the well-settled defense is pertinent to the instant proceedings and weighs in favor of allowing R.M.J.M. to remain in the United States.
b. Respondent Has Established That R.M.J.M. is Sufficiently Mature, Objects to Being Repatriated, and His Objection is Not the Product of Undue Influence
As her second defense, Respondent argues that the Court should deny the Petition because R.M.J.M. objects to returning to Mexico and has reached an age and degree of maturity such that the Court should consider his views. Answer at 7; Resp't's Proposed Findings at 19–22. Specifically, Respondent points to the Expert Report and testimony of Dr. Firpi who opined that R.M.J.M. was "mature and credible and had a well-founded and thoughtful basis for the objection to returning to Mexico," and "it was clear that [R.M.J.M.’s] objection to returning to Mexico was not the product of coercion, coaching or parental alienation." Resp't's Proposed Findings at 20. Petitioner argues that R.M.J.M. is not of sufficient age and maturity such that the Court should take his views into account, he "is particularly susceptible to manipulation given his age and circumstances, and any tenuous objection to return is the product of Respondent's undue influence." Pet'r's Proposed Findings at 18–21.
"The drafters of the Convention sought to deter wrongful removals, but they also recognized that wrongfully removed children are not inanimate objects—they are people with agency of their own." Rodriguez v. Yanez , 817 F.3d 466, 475 (5th Cir. 2016). Thus, Article 13 of the Hague Convention provides that the Court "may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of [his] views." Hague Convention, art. 13.
A court may deny a petition on the sole basis that the child objects to being repatriated. See Tsai–Yi Yang v. Fu-Chiang Tsui , 499 F.3d 259, 278 (3d Cir. 2007) (citing Blondin v. Dubois , 189 F.3d 240, 247 (2d Cir. 1999) ). "However, ‘a court must apply a stricter standard in considering a child's wishes when those wishes are the sole reason underlying a repatriation decision and not part of some broader analysis,’ such as whether the child would suffer a grave risk of harm if returned to his or habitual residence." Id. at 278–79 (quoting de Silva v. Pitts , 481 F.3d 1279, 1286 (10th Cir. 2007) ). Moreover, "[i]n making its determination, a court should also consider whether a child's desire to remain or return to a place is the product of undue influence, in which case the child's wishes should not be considered." Id. at 279 (citations and internal quotation marks omitted). A respondent bears the burden of establishing by a preponderance of the evidence that this exception applies. See § 9003(e)(2)(B) ; In re K.J. , No. 9:16-CV-80177-RLR, 2016 WL 874360, at *6 (S.D. Fla. Mar. 8, 2016). For this exception to apply the Court must find that (1) the child is sufficiently mature that the Court should take his views under consideration; (2) the child has a particularized objection to being repatriated; and (3) the child's objection is not the product of undue influence. See Tsai–Yi Yang , 499 F.3d at 279.
The Hague Convention provides no specific age at which a child is deemed sufficiently mature such that his opinion must be considered, see id. , nor does the Convention provide "objective criteria or tests for assessing ‘maturity’ in the context of the mature child exception." Haimdas v. Haimdas , 720 F. Supp. 2d 183, 205 (E.D.N.Y. 2010) (citation omitted). "Given the fact-intensive and idiosyncratic nature of the inquiry, decisions applying the age and maturity exception are understandably disparate." de Silva , 481 F.3d at 1287 (citation omitted).
The text of the Convention restricts the age and maturity exception to cases in which the child states an objection, rather than a mere preference against repatriation. See Rodriguez , 817 F.3d at 476–77 ("Only an objection is sufficient to trump the Convention's strong presumption in favor of return."); Tsai-Yi Yang, 499 F.3d at 279. A child's objection is different from a child's wishes, as would be considered in a custody hearing. See Neumann v. Neumann , 310 F. Supp. 3d 823, 835 (E.D. Mich. 2018). "There is a substantive difference between preferring to live in one of two countries—when living in either country would be acceptable—and affirmatively objecting to returning to one country—when living in that country would be unacceptable." Rodriguez , 817 F.3d at 477.
Courts will consider the nature of the child's objection to determine if it is the product of undue influence. For example, courts should not credit an objection that does not seem to be based on the child's personal knowledge. See , e.g. , Haimdas , 720 F. Supp. 2d at 207 (finding the child's testimony was inconsistent with his siblings and that the child made statements about the petitioner's behavior that he could not have known firsthand); Hazbun Escaf v. Rodriquez , 200 F. Supp. 2d 603, 615 (E.D. Va. 2002) (finding the child's objection appears to be the product of suggestion). In contrast, a detailed and particularized objection based on the child's firsthand experiences may tend to indicate that the objection is based on the child's independent thought. See McManus v. McManus , 354 F. Supp. 2d 62, 70–71 (D. Mass. 2005). "[I]f a court determines that the youngster's opinion is the product of undue influence, the child's wishes are not taken into account." de Silva , 481 F.3d at 1286 (citation omitted); see also Walker v. Walker , 701 F.3d 1110, 1123 (7th Cir. 2012) (cautioning that "district court[s] must be attentive to the possibility that the children's views may be the product of ‘undue influence’ of the parent who currently has custody") (citation omitted).
Regarding R.M.J.M.’s level of maturity, Respondent offered Dr. Firpi's expert opinion that R.M.J.M. is sufficiently mature for the Court to take his objections into consideration. Expert Report at 15–17. Dr. Firpi finds that R.M.J.M. "displayed an ability for logical and abstract thinking operations[,] ... viewed the formulation of his opinion as to where he wants to live as a complex and difficult issue[,] ... did not represent it merely as a ‘black and white’ polarized preference, but rather as a difficult choice that required thinking[,] ... [and] does not think in absolutes." Id. at 15. Further, Dr. Firpi finds that R.M.J.M. "was emotionally well-controlled while addressing an emotionally-charged issue such as parental conflict requiring a choice fraught with potential conflicts of loyalties[,] ... was measured and reasonable in his presentation[,] ... [and] displayed no dramatic behavior, no negativity, and no signs of alienation from either parent." Id. In summary, Dr. Firpi opined that R.M.J.M. "reached his opinion and formulated his objection to his return to Mexico in an independent, reasonable manner, which displays logical and mature thinking for a twelve year old" and that "[f]rom a psychological and developmental point of view, his opinion merits consideration" by the Court. Id. at 17.
The Court finds that R.M.J.M., who was twelve at the time of trial, is sufficiently mature for the Court to take his view against repatriation into account. This age is consistent with this and other courts’ findings. See , e.g. , Colon v. Mejia Montufar , 470 F. Supp. 3d 1280, 1296 (S.D. Fla. 2020) (finding a twelve year old sufficiently mature to have his views taken into account); Blondin v. Dubois , 238 F.3d 153, 167 (2d Cir. 2001) (affirming district court's finding that eight year old was sufficiently mature for the court to consider his view); Sadoun v. Guigui , No. 16-cv-22349, 2016 WL 4444890, at *10 (S.D. Fla. Aug. 22, 2016) (finding children aged fourteen and twelve were sufficiently mature to have their views taken into account); Lopez v. Alcala , 547 F. Supp. 2d 1255, 1259 (M.D. Fla. 2008) (finding ten year old child had sufficient maturity for his views to be taken into account); Matovski v. Matovski , No. 06 Civ. 4259(PKC), 2007 WL 2600862, *14–15 (S.D.N.Y. Aug. 31, 2007) (considering objections of twelve and eleven year old children in denying petition).
Next, Dr. Firpi finds that R.M.J.M.’s objection to returning to Mexico is based on several factors: (1) when he went to Mexico in 2016, he did not expect to live there permanently but "always expected that he would come back to the United States and to his Mother's care"; (2) R.M.J.M. "has a higher level of emotional comfort and reassurance with his Mother, which he measures by her being ‘more present’ physically and emotionally in his life"; (3) while he knows his Father loves him, R.M.J.M. takes issue with some of his Father's emotional responses which include yelling and getting angry, and R.M.J.M. is "distressed by the yelling"; (4) R.M.J.M. "has a family unit in the United States to whom he feels bonded, including a younger brother and stepfather he gets along with ... [and] is well-rooted in that family life"; and (5) R.M.J.M. maintains that the schools in the United States provide him a better place to learn ... [and] he is very happy that his attention deficits have diminished as a result of being treated with [medication]." Expert Report at 16. Dr. Firpi finds that based on the above factors, R.M.J.M. "is emphatic that he does not want to return to Mexico and would resist such a move." Id. ; Day One Trial Tr. 39:23–25 ("[R.M.J.M.] is very concerned about his schooling and about really doing better in school, and this kid is really trying, and it's a big, important thing for him."). Further, Dr. Firpi finds that R.M.J.M. "believes his parents should listen to his opinion on the matter." Expert Report at 16.
The Court finds that R.M.J.M.’s objection is sufficiently particularized and reflects more than a mere preference to remain in the United States, particularly as it relates to his views on having a higher level of emotional comfort and reassurance with his Mother, being well-rooted in his family life in the United States with a younger brother, and the appreciation he has for how medication has improved his neurological condition and his dedication to seeing further gains academically in that regard. See Rodriguez , 817 F.3d at 466.
Finally, Dr. Firpi finds that R.M.J.M. "did not appear to feel coerced or pressured by either parent." Expert Report at 15; Day One Trial Tr. 36:9–10 ("This kid is very, very balanced in his view of both parents."), 39:4–18 ("[R.M.J.M.] made it very clear to me that neither parent disparaged the other, at least in his presence. And [R.M.J.M.] also made it very clear to me that he has heard from both parents that he can make this choice and that they will be fine with whatever he wants ...."). The Court finds that R.M.J.M.’s objections are not the product of undue influence, but rather reflect his own independent thought.
The Court finds that R.M.J.M. is sufficiently mature, objects to being repatriated, and his objection is not the product of undue influence. This defense weighs in favor of allowing R.M.J.M. to remain in the United States.
Accordingly, based on both of Respondent's affirmative defenses, the Court declines to order R.M.J.M.’s return to Mexico.
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 DENIED. The Clerk of Court is INSTRUCTED to CLOSE this case. All pending motions, if any, are DENIED AS MOOT.
DONE AND ORDERED in Chambers at Miami, Florida, this 15th day of March, 2021.