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Gil-Leyva v. Leslie

United States District Court, D. Colorado

April 17, 2018



          Kristen L. Mix, United States Magistrate Judge

         This matter is before the Court on Petitioner Hector Armando Gil-Leyva's Amended Complaint [#22][1] 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 GRANTED.

         I. Background

         The following facts are uncontested. Petitioner Hector Armando Gil-Leyva (“Mr. Gil-Leyva”), who proceeds as a pro se litigant in this action, [2] 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. Id.

         On May 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] ¶ 28.[3]

         Mr. 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.

         II. Legal Standard

         Both 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. § 9001(a)(4).

         The 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)).

         In 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.

         III. Analysis

         A. Jurisdiction

         As a 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.”).

         B. Prima Facie Case

         To 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 (1997).

         1. Habitual Residence

         The Court finds that HMG and HFG were habitual residents of Canada at the time of their removal.

         The 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. 2014)).

         There 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.

         2. Breach of Custodial Rights

         Next, the Court finds that the retention was in breach of Petitioner's ...

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