On April 23, 2020, the U.S. District Court for the Western District of Michigan (Southern Division) issued an opinion on remand from the 6th Circuit in the case of Moreno v. Zank (No. 1:17-cv-732) to pinpoint the moment in time when the minor child was wrongfully retained by her father in Michigan.
While the family has an acrimonious history, the court chose to focus on several dates within the month of August 2016 to try to pinpoint the date on which the minor child, BLZ, was retained in Michigan at the end of a summer vacation to see her father. The father was slated to put BLZ on a plane to Florida on August 9, 2016 at which time her maternal grandfather would take over custody (and presumably, after a trip to Walt Disney World, take her back to Ecuador). Due to a Delta Airlines nationwide outage, that flight did not happen, and shortly thereafter, BLZ told her father that she objected to returning to Ecuador. The minor child’s travel authorization permitted BLZ to travel to the USA until August 15, 2016. The respondent father filed for a change in custody on August 10, 2016 in Michigan, but the action was never served on the petitioner mother. Respondent father called petitioner mother when the child did not get on the flight to Orlando, but did not specifically state he was going to keep the child in Michigan.
The dates are all important in this particular case because petitioner mother filed her Hague Return lawsuit on August 14, 2017. The court needs to pinpoint precisely when the retention became wrongful to determine if the mother actually initiated her suit within one year of the child’s retention, nullifying the father’s argument that the child was now settled in Michigan.
How does a court determine when a retention becomes wrongful? The court concluded that it would need to examine “that date on which [the retaining parent]’s actions were so unequivocal that [the left behind parent] knew or should have known that the [minor child] would not be returned.”
The court analyzed the circumstantial evidence and weighed the credibility of the witnesses. Starting with the date of August 15, 2016 (the date which the travel consent form expired), the court worked backwards and looked at the petitioner mother’s actions that could cause the court to believe she knew or should have known that the child was not returning. Given that the mother says she called the father and his relatives “thousands” of times after the child did not get to Orlando, and the father never picked up, and that she consulted an Ecuadorian lawyer on August 14, 2016, the court concluded that the mother knew or should have known before August 15, 2016 that her daughter was being retained in Michigan. The court pinpointed the wrongful retention at August 11, 2016, which was within 24 hours of the mother’s un-returned phone calls. Her petition was not timely filed. The father may argue the exception of the child now being settled.