United States District Court, D. Colorado
Kristen L. Mix, United States Magistrate Judge
matter is before the Court on Petitioner Hector Armando
Gil-Leyva's Amended Complaint
[#22] seeking the immediate return of his minor
children 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
its implementing statute, the International Child Abduction
Remedies Act (“ICARA”), 22 U.S.C. § 9001 et
seq. For the reasons described herein, the request is
following facts are uncontested. Petitioner Hector Armando
Gil-Leyva (“Mr. Gil-Leyva”), who proceeds as a
pro se litigant in this action,  is a citizen of Canada.
Respondent Shenoa Taleese Leslie (“Ms. Leslie”)
is a citizen of the United States. Mr. Gil-Leyva and Ms.
Leslie were never formally married. Am. Compl. [#22]
¶ 5; Answer [#52] ¶ 5. They lived together
in the District of Colorado starting in March 2008, and
around September 2009, they relocated to Canada. See
Tr. [#46] at 71. Mr. Gil-Leyva and Ms. Leslie are the
biological parents of two children together, HMG and HFG.
Am. Compl. [#22] ¶ 5; Answer [#52]
¶ 5. At the time this action was commenced on June 9,
2017, HMG was five years old and HFG was two years old.
Am. Compl. [#22] ¶¶ 7-8; Answer
[#52] ¶¶ 7-8. Both children were born in Canada.
29, 2016, Mr. Gil-Leyva authorized Ms. Leslie to take the
children on a visit to Colorado for less than two weeks.
Am. Compl. [#22] ¶¶ 23-24; Answer
[#52] ¶¶ 23-24. On June 5, 2016, Ms. Leslie told
Mr. Gil-Leyva that she did not intend to return by the
agreed-upon date. Am. Compl. [#22] ¶ 26;
Answer [#52] ¶ 26. Neither Ms. Leslie nor the
children have returned to Canada since that time. On October
10, 2016, Ms. Leslie told Mr. Gil-Leyva of her final decision
not to return to Canada with the children. Am.
Compl. [#22] ¶ 28; see also Compl. [#1]
Gil-Leyva filed the current action on June 9, 2017, within
one year of Ms. Leslie's final decision not to return HMG
and HFG to Canada. Mr. Gil-Leyva seeks an order from this
Court requiring Ms. Leslie to return HMG and HFG to Canada,
pursuant to the Hague Convention and the ICARA. On January
10, 2018, the Court held a hearing on the Complaint. Mr.
Gil-Leyva appeared by telephone pro se, and Ms. Leslie
appeared in person and with counsel.
the United States and Canada are signatories to the Hague
Convention. The Hague Convention “creates an
international legal mechanism requiring contracting states to
promptly return children who have been wrongfully removed to,
or wrongfully retained in, their jurisdiction, without
deciding anew the issue of custody.” Navani v.
Shahani, 496 F.3d 1121, 1124 (10th Cir. 2007). ICARA
states that “[c]hildren 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.” 22 U.S.C. §
Convention “was especially aimed at the unilateral
removal or retention of children by those close to them, such
as parents, guardians, or family members.” Gitter
v. Gitter, 396 F.3d 124, 129 (2d Cir. 2005).
“[T]he Convention seeks ‘to prevent parents from
abducting children in order to avoid the jurisdiction of
courts with whose [custody] rulings they do not or believe
they will not agree.'” West, 735 F.3d at
929 (quoting Shealy v. Shealy, 295 F.3d 1117, 1121
(10th Cir. 2002)). In other words, “[t]he principal
aims of the Convention are to ‘prevent an international
version of forum-shopping, ' ‘defeat attempts to
re-litigate custody matters, ' and ‘facilitate
custody adjudications, promptly and exclusively' in the
child's country of residence[.]” See Id.
(citing Navani, 496 F.3d at 1128- 29; Chafin v.
Chafin, 568 U.S. 165, 180 (2013)).
short, the Court is simply not authorized to address the
merits of an underlying custody claim. See 22 U.S.C.
§ 9001(b)(4) (“The Convention and this chapter
empower courts in the United States to determine only rights
under the Convention and not the merits of any underlying
child custody claims.”). The Court's scope of
inquiry is limited to the merits of the removal or retention
claim, in other words, whether the respondent's removal
or retention of the children was “wrongful” under
the Hague Convention. Importantly, the Court emphasizes that
the question of which parent would be a better custodian for
the children is not before this Court. See De Silva,
481 F.3d at 1282. “Once a petitioner establishes that
removal was wrongful, the child must be returned unless the
respondent can establish a defense.” Id. at
1285. The Convention enumerates four defenses in Articles 12,
13 and 20, as discussed further below.
preliminary matter, the Court finds it has subject matter
jurisdiction over the claims at issue in this lawsuit.
See 22 U.S.C. § 9003(a) (“The courts of
the States and the United States district courts shall have
concurrent original jurisdiction of actions arising under the
Convention.”); 28 U.S.C. § 1331 (“The
district courts shall have original jurisdiction of all civil
actions arising under the . . . treaties of the United
States.”); West v. Dobrev, 735 F.3d 921, 924
(10th Cir. 2013) (“ICARA provides federal district
courts with original jurisdiction (concurrently with state
courts) over petitions seeking the return of children under
the Hague Convention.”).
Prima Facie Case
establish a prima facie case of wrongful retention, Mr.
Gil-Leyva must establish: (1) the children habitually resided
in Canada at the time of the retention; (2) the retention
breached his custody rights under the law of Canada, and (3)
he was exercising those rights at the time of retention.
West, 735 F.3d at 929; De Silva v. Pitts,
481 F.3d 1279, 1281 (10th Cir. 2007). Mr. Gil-Leyva has the
burden of proving that the children have been wrongfully
retained within the meaning of the Convention by a
preponderance of the evidence, i.e., that the evidence,
considered in light of all the facts, proves that something
is more likely so than not. 22 U.S.C. § 9003(e)(1)(A);
Metro. Stevedore Co. v. Rambo, 521 U.S. 121, 137 n.9
Court finds that HMG and HFG were habitual residents of
Canada at the time of their removal.
term “habitual residence” is defined by neither
the Hague Convention nor the ICARA. Stead, 77
F.Supp.3d at 1034 (citing Holder v. Holder, 392 F.3d
1009, 1015 (9th Cir. 2004)); Rydder v. Rydder, 49
F.3d 369, 373 (8th Cir. 1995); In re Prevot, 59 F.3d
556, 560 (6th Cir. 1995). “[A] child's habitual
residence is defined by examining specific facts and
circumstances and is a term courts should not interpret
technically or restrictively.” Kanth v. Kanth,
232 F.3d 901 (10th Cir. 2000) (Table). In the case of a young
child, “the conduct, intentions, and agreements of the
parents during the time preceding the abduction are important
factors to be considered.” Id. The Court
“looks first to the shared intent or settled purpose of
the persons entitled to determine the child's permanent
home; as a secondary factor, [it] may consider the
child's acclimatization to his or her current place of
residence.” Mertens v. Kleinsorge-Mertens, 157
F.Supp.3d 1092, 1103 (D.N.M. 2015) (citing Mendez v.
May, 778 F.3d 337, 344 (1st Cir. 2015); Smedley v.
Smedley, 772 F.3d 184, 186 (2d Cir. 2014);
Berezowsky v. Ojeda, 765 F.3d 456, 466 (5th Cir.
is no dispute that both children were born in Canada, that
HFG never left Canada prior to May 2016, and that HMG only
left Canada for periods of less than two weeks prior to May
2016. See Tr. [#46] at 77-78. The Court therefore
has no trouble concluding that HMG and HFG were both habitual
residents of Canada, and that Mr. Gil-Leyva has established
the first element of his prima facie case by a preponderance
of the evidence.
Breach of Custodial Rights
the Court finds that the retention was in breach of