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Abou-Haidar v. Sanin Vazquez

United States Court of Appeals, District of Columbia Circuit

December 27, 2019

Sami Abou-Haidar, Appellee
v.
Maria Eugenia Sanin Vazquez, Appellant

          Argued December 5, 2019

          Appeals from the United States District Court for the District of Columbia (No. 1:19-cv-01687)

          Joseph J. DiPietro III argued the cause for appellant. With him on the briefs was Sakeena Farhath.

          Stephen J. Cullen argued the cause for appellee. With him on the brief were Kelly A. Powers and Leah M. Hauser.

          Sharon Swingle and Lewis S. Yelin, Attorneys, U.S. Department of Justice, were on the brief for amicus curiae United States of America.

          Before: Millett, Pillard, and Wilkins, Circuit Judges.

          OPINION

          PILLARD, CIRCUIT JUDGE

         The 1980 Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention or Convention) seeks 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." Hague Convention, T.I.A.S. No. 11670, S. Treaty Doc. No. 99-11, preamble. The "problem with which the Convention deals . . . derives all of its legal importance from the possibility of individuals establishing legal and jurisdictional links which are more or less artificial" in order to "change the applicable law and obtain a judicial decision favourable to [them]." Elisa Pérez-Vera, Explanatory Report ¶ 15 (Pérez-Vera Report).[1] To combat this problem, the Convention seeks to achieve the "restoration of the status quo" in international custody disputes, id. ¶ 16, ensuring that courts of the child's habitual residence make the ultimate custody determination. A decision pursuant to the Convention does not constitute a "determination on the merits of any custody issue." Hague Convention, art. 19. Instead, the "central operating feature" of the Convention is its petition remedy, through which a party who claims a breach of custody rights may petition for the child's return to the child's country of habitual residence where any custody adjudication appropriately would occur. Abbott v. Abbott, 560 U.S. 1, 9 (2010).

         In this case, petitioner Sami Abou-Haidar claims that his wife, María Eugenia Sanin Vazquez, wrongfully retained their five-year-old daughter in the United States. The family moved from France to the United States so that Sanin Vazquez could fulfill an eighteen-month assignment as a consultant at the Inter-American Development Bank in Washington, D.C. The couple planned to live in the United States at least until Sanin Vazquez's contract with the Bank expired on December 31, 2019. Within six months of arriving in the United States, however, the marriage began to deteriorate, prompting Sanin Vazquez to take a series of actions-including unilaterally filing for primary physical custody in D.C. Superior Court- contrary to the couple's previous, joint understanding of where they would live together with their child. The district court concluded that Sanin Vazquez's actions constituted a retention, and that the retention was wrongful because it breached Abou-Haidar's custody rights under the laws of the child's habitual residence, which the court held was France. Because Sanin Vazquez has not identified any reversible error in the district court's factual findings or legal conclusions, we affirm the district court's judgment granting Abou-Haidar's petition for return.

         I.

         In October 2013, Sami Abou-Haidar and María Eugenia Sanin Vazquez married in Paris. Abou-Haidar, a citizen of France, Italy, and Lebanon, is an emergency doctor who provides house-call services. Sanin Vazquez, a citizen of Spain and Uruguay, is a professor of Economics at the University of Évry Val-d'Essonne, near Paris. The couple had a daughter in Paris in early 2014. Before July 2018, the family lived primarily in a rented apartment in Paris. The family also spent several months at a time at a Barcelona apartment they owned, but there is no serious dispute that France, not Spain, was the family's habitual residence before their move to the United States.

         In January 2018, the Inter-American Development Bank offered Sanin Vazquez a consultancy in Washington, D.C. The initial contract offer was for an eighteen-month term, renewable after a six-month period of separation. Because both Sanin Vazquez and Abou-Haider thought Sanin Vazquez might accept a renewal but only if it could be done continuously, Sanin Vazquez renegotiated the Bank offer in early June 2018 to permit renewal, at the Bank's discretion, for a second eighteen-month term without a six-month period of separation. With the renegotiated terms in hand, Sanin Vazquez agreed to serve as a Bank consultant from July 1, 2018 through December 31, 2019.

         The parties then took several steps to prepare for their departure from France. Sanin Vazquez requested a détachement-a temporary assignment or secondment-from her university for eighteen months, but maintained her university affiliation, her doctoral students, and her French pension. Abou-Haidar kept his Paris job but planned to work for ten to twelve consecutive days each month in France and spend the balance of the month in Washington. To reduce costs, the couple rented out their Barcelona apartment for three years and moved out of their rented Paris apartment, leaving their furniture and large appliances in a storage unit in the same building. For the days he would spend in Paris, Abou-Haidar arranged to live in another, smaller Paris apartment that he owned, which he otherwise continued to rent out during the part of each month he spent in Washington.

         The couple took other steps in preparation for the move to Washington. Sanin Vazquez obtained G-4 diplomatic visas for the family valid for five years. As reflected in their text messages and emails, the couple collaborated on finding a residence to purchase in Washington, potentially with financial assistance from Sanin Vazquez's mother. After making an unsuccessful bid on a house, they instead decided to rent an apartment in the Woodley Park neighborhood. Abou-Haidar took some initial steps toward obtaining a medical license in Uruguay in anticipation of the family perhaps moving there after Sanin Vazquez's Washington consultancy, but he made no effort to obtain an American medical license.

         The couple moved into their rented Washington apartment on July 1, 2018 (shifting units within the building in March 2019). They enrolled their child in a nearby public Spanish-English bilingual elementary school. The child is now nearly six years old, has friends at her school, and participates in soccer and other extracurricular activities.

         By December 2018, however, the couple began to experience marital discord. As the marriage deteriorated, Sanin Vazquez unilaterally took action to establish her primary physical custody over the child. On May 2, 2019, Sanin Vazquez filed a Complaint for Custody in D.C. Superior Court, seeking "primary physical custody" and "joint legal custody" of the child. J.A. 915. Sanin Vazquez did not tell Abou-Haidar about the filing until five days later when, on May 7, she notified him of the complaint and of her desire for a marital separation. Immediately thereafter, Abou-Haidar received service of the Superior Court complaint. On May 10, Sanin Vazquez told Abou-Haidar that she planned to stay in Washington, D.C. with their daughter after December 31 instead of returning to France. Finally, on May 31, Sanin Vazquez's family law attorney wrote to Abou-Haidar that their Washington apartment had "never been the marital residence" and that Sanin Vazquez had "changed the locks on her apartment." J.A. 1296.

         Abou-Haidar responded to these developments with several actions of his own. First, on May 23, 2019, Abou-Haidar filed an answer and counterclaim in D.C. Superior Court, seeking "joint physical and legal custody" of their daughter. J.A. 81-85. Then, changing course on June 6, Abou-Haidar withdrew his Superior Court answer and counterclaim and instead sought assistance from the French Central Authority, the entity designated by France under the Hague Convention to collaborate across international borders to process applications arising under the Convention. See Hague Convention, arts. 6-8. On June 10, before hearing back from the French Central Authority, Abou-Haidar also filed a Hague Convention petition in the U.S. District Court in Washington for return of their daughter to France. As urged by the Convention, the district court scheduled the case for prompt disposition. See Hague Convention, art. 11 (encouraging courts to rule on petitions within six weeks). Following that filing, the D.C. Superior Court stayed any determination of the custody aspects of Sanin Vazquez's complaint pending resolution of this case. About two weeks later, the French Central Authority dismissed Abou-Haidar's application in a one-page letter, stating that the "presence of your daughter in the United States is not unlawful since it was decided by the parental couple which holds the parental authority." J.A. 1015.

         The district court held an evidentiary hearing on August 1-2, 2019. In a brief August 21 order, which the court specified would be followed by a more detailed opinion, the court concluded that Abou-Haidar had "proven by a preponderance of the evidence that the mother, Respondent María Eugenia Sanin Vazquez, has wrongfully retained [the child] within the meaning of the Convention." J.A. 150. Specifically, the court held that Sanin Vazquez had retained the child on May 7, 2019 when she served Abou-Haidar with her Superior Court complaint, or at the latest on May 23, 2019, when Abou-Haidar filed his Superior Court answer and counterclaim seeking to maintain joint custody. J.A. 152 & n.1. The court further held that the child's habitual residence was France because, "based on the full record," the "parties did not leave France in a manner that would suggest a shared intent to relocate indefinitely to the United States," and evidence of the child's acclimatization to the United States did not supplant that intent. J.A. 153-54. Finally, the court held that the retention was wrongful because Sanin Vazquez did not dispute that the retention violated the French custodial rights that Abou-Haidar was exercising at the time of the retention. J.A. 154.

         The district court ordered the parties to confer and agree on a date for the child's return to France. On October 9, 2019, the district court issued its Findings of Fact and Conclusions of Law. J.A. 161-82. Because the parties had not settled on a return date, the district court at that time also ordered the child's return to France by December 31, 2019. J.A. 183.

         Sanin Vazquez timely appealed both the district court's August 21 and October 9 orders, and the appeals were consolidated. She also sought and received expedited consideration from this court so that the district court's decision could be reviewed prior to the expiration of her first Bank contract on December 31. On December 4, we invited the United States to offer its views on the legal ...


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