On October 19, 2021, the U.S. District Court for the SD of Florida ordered the parties’ minor child returned to Chile.
The child’s father, alleging violent threats by the mother’s boyfriend in Chile, decided to take their child to the United States. Over the course of approximately 3 months in 2019, the father, child, and his child from a prior relationship, traveled from Chile to Peru, then “across ten countries in South America before finally arriving illegally in Mexico. The trio then illegally crossed the Rio Grande River into Texas…” The mother, during this time, was taking diligent steps to locate the child, first believing the child to still be in Chile since there was no legal border crossing records, and then learning that they were in Texas. After locating pro bono counsel in Texas to file her Hague Abduction return petition, the father and child then relocated to Florida. She had to find new pro bono counsel, and ultimately filed her return petition on August 11, 2021, which was about 29 months after the wrongful removal of the child from Chile.
The mother had a right of custody over the child, very specifically, she exercised her patria potestad rights under Chilean law, and Chilean law also includes a ne exeat provision that would have required the mother’s consent to remove the child from Chile. The father argued that the child was now settled, but, his actions in constantly moving the child, coupled with the child’s young age and the mother’s significant steps to try to locate the child, cut against the father’s argument. He also argued that it would present a grave risk to the child to return him to Chile, specifically because Haitians are discriminated against in Chile, and that the mother was at risk of getting deported to Haiti. However, he failed to understand that the mother had actually obtained legal permanent residency in Chile. He finally argued that the mother consented to the child’s removal, explaining that she was planning on joining them in the United States, but the mother’s actions to locate and seek the child’s return from the moment of the child’s removal undercut his argument. The court finally concluded that even if the father had successfully argued an exception, the court was still going to exercise its discretion to return the child. It seemed concerned that the father could have initiated custody and relocation proceedings in Chile, but did not.
As an aside, shortly after the mother filed her return petition, she was granted temporary relief by having the child removed from the father’s custody and placed in the custody of a nonprofit in Florida, presumably to prevent the father from removing the child from the jurisdiction pending the case.