The Middle District of Tennessee examined the issue of habitual residence in a “retention” case under the 1980 Hague Abduction Convention in Rodriguez v. Fernandez. In this case, the court weeded through inconsistent testimony taken by remote technology through interpreters and messages that were translated in real time by the witnesses from Spanish to English. It concluded that the parents of a young child, AM, who were living in Mexico, agreed to move as a family to Tennessee with their child in late 2018. The mother and child moved in October to spend some time with the maternal grandmother. The father was to join in December 2018 after work obligations, but, before he could relocate, the mother alerted him that she no longer wished to cohabit. The record became more confusing when different witnesses and evidence debated when the father actually concluded that the mother and child’s time in Tennessee was intended to be a permanent relocation without him.
The court elaborated on when the child’s retention in Tennessee occurred by elucidating that when a parent initially gives consent for a child to travel for a period of time, the retention begins when the non-custodial parent clearly communicates his or her desire to regain custody and asserts his or her parental right to have the child returned. The court concluded that the earliest the retention occurred was February 9, 2019, when the father texted the mother he felt “cheated,” apparently by her decision to remain in Tennessee without him. This date is different than the date he listed in his application to the Mexican Central Authority, and from the position he took at trial, and his testimony created some credibility problems, which did not lend the Court to agree with his argument that the child was wrongfully removed in October 2018.
Having pinpointed the date of a retention, the District Court then applied its traditional Sixth Circuit test in determining the child’s habitual residence. In doing so, it cited to the February 25, 2020 Monasky habitual residence standard, but indicated it was the standard for an infant. Therefore, applying the old acclimatization standard, the Court found that Petitioner did not meet his burden in the least. In fact, the Court was quite vocal about the Petitioner’s miscalculation in strategy. Apparently, the Petitioner was so unclear about his legal argument, at times claiming the child was wrongfully removed, then shifting to a wrongful retention argument, and pinpointing a variety of dates, that he did not focus on the fact that he then needed to present sufficient evidence to confirm the location of the child’s habitual residence ON THE DATE of the wrongful retention (which the court said was February 9, 2019). It further seems that the Petitioner misunderstood a stipulation that the parties put on the record at the beginning of trial – that the child was habitually resident in Mexico in October 2018 (immediately before the child’s relocation to the United States). He felt that this stipulation was Mother’s acknowledgment that the child remained habitually resident for all pertinent time periods thereafter, which was wrong. He also used that stipulation to continually argue that October 2018 was the date of “wrongful removal,” with which the court disagreed.
So, with the court focusing on the child’s experience surrounding his move, it concluded that his habitual residence shifted to the United States by February 9, 2019 (the date of the retention), with AM likely believing the move to be permanent with several going-away parties and his withdrawal from his Mexican school. If the habitual residence is the United States on the date of the retention, then the Petitioner’s case cannot succeed. Return denied.