Lawrence Sheldon Katz, Lawrence S. Katz, Miami, FL, for Petitioner.

Michael Anthony Remy, Richard E. Tejera, Coral Gables, FL, for Respondent.

Karina Noble, Greenacres, FL, pro se.

ORDER ADOPTING REVISED REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE AND GRANTING ANTHONY LESLIE'S PETITION FOR RETURN OF CHILD TO PETITIONER

HURLEY, District Judge.

THIS CAUSE is before the court upon a petition for return of child to petitioner, filed herein on March 29, 2005. Pursuant to the Hague Convention on the Civil Aspects of International Child Abduction ("Hague Convention") and its implementing legislation, the International Child Abduction Remedies Act ("ICARA"), 42 U.S.C. § 11603(b), petitioner seeks an order from this court that removes the minor child, Adrian Karsten Leslie, from the possession of his mother and returns him to his habitual residence in the nation-state of Belize. On June 2, 2005, United States Magistrate Judge Linnca R. Johnson issued a report and recommendation which recommended that Mr. Leslie's Hague Convention petition be granted. As of the date of entry of this order, no objections have been filed to Judge Johnson's report and recommendation.

Pursuant to Fed.R.Civ.P. 72(b), "The district judge ... shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge's disposition to which specific written objection has been made in accordance with this rule." The rule requires that objections be filed within ten days of service of the report and recommendation, and that the objecting party arrange for transcription of sufficient portions of the record. Fed.R.Civ.P. 72(b). The district judge may then "accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions." Id. Portions of the report and recommendation that are not specifically objected to are subject to the clear error standard. The identical requirements are set forth in 28 U.S.C. § 636(b)(1).

Upon review of the report of the magistrate judge, it is hereby ORDERED and ADJUDGED as follows:

1. The revised Report and Recommendation of the United States Magistrate Judge [DE # 40] is ADOPTED in its entirety and incorporated herein by reference.

2. Petitioner's Hague Convention petition [DE # 1] is GRANTED.

3. The United States Marshals' Service is directed to ensure that within ten (10) days of the date of entry of this order, that petitioner comply with this order, and that the Marshals' Service accompany the petitioner and the minor child to the Miami International Airport for their departure to Belize.

4. Furthermore, the Marshals' Service is ordered to notify all other federal, state, and local law enforcement officers that Petitioner has the authority and the lawful custody to remove Adrian Karsten Leslie from the United States of ICARA America in order to return him to Belize.

5. Finally, petitioner and respondent are ordered to arrange for the return of all original travel documentation to the petitioner, respondent, and the minor child through their respective attorneys.

6. The district court retains jurisdiction to assess any attorneys' fees and costs that may be appropriate pursuant to 42 U.S.C. § 11607. The parties are ordered to follow the procedure for seeking attorneys' fees and costs detailed in Judge Johnson's report and recommendation.

7. The clerk of the court shall enter this case as CLOSED and shall DENY all pending motions as MOOT.

REVISED REPORT AND RECOMMENDATION

JOHNSON, United States Magistrate Judge.

THIS CAUSE is before the court on ANTHONY LESLIE's (Petitioner) Emergency Petition for Warrant of Arrest in Lieu of Writ of Habeas Corpus and Petition for Return of Child to Petitioner (Petition) (D.E.# 1). Petitioner initiated these proceedings under the provisions of The Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89, reprinted in 51 Fed.Reg. 10,498-502 (1986) [hereinafter Convention] as implemented by the International Child Abduction Remedies Act (ICARA), 42 U.S.C. § § 11601 et seq. This matter was referred to the undersigned United States Magistrate Judge by the Honorable Daniel T.K. Hurley, United States District Judge for the Southern District of Florida (D.E.# 4). The undersigned conducted an ex parte emergency hearing on April 1, 2005, at which time she granted initial relief to Petitioner by issuing a Warrant in Lieu of Writ of Habeas Corpus (Warrant) (D.E.# 8).¹ The undersigned also conducted evidentiary hearings on April 21, 2005, and on May 4 and 24, 2005, of which KARINA NOBLE (Respondent) received notice, and all of which she attended represented by legal counsel.² After consideration of all the testimony and evidence, the undersigned respectfully recommends that the relief sought in the Petition be granted.

[1]. As a result of that Warrant, the United States Marshal took the minor child into custody and turned him over to Petitioner; the Warrant also required Petitioner to remain with the child at a specified address within the jurisdiction of the Southern District of Florida until further order of this court. Before issuance of the Warrant, Judge Hurley entered an Order on March 29, 2005 (D.E.# 4), requiring that the minor child not be removed from Palm Beach County, Florida, until further order of the court.

[2]. While the court would normally cite to the volume number of each hearing transcript, the references herein are to the transcribed record for the specific hearing date, since at the time of writing this Report and Recommendation there were no transcriptions of the April 1, 2005, emergency hearing, or of the last evidentiary hearing held on May 24, 2005. Also, it is unknown why the transcript for the May 4, 2005, hearing reflects "Volume 3" on the first page.

I. BACKGROUND

Petitioner is the father of ADRIAN KARSTEN LESLIE (Adrian or the minor child). ³ Petitioner and Respondent were ICARA never married, but had an intimate relationship, sharing joint living arrangements between sometime in 1999 through late December of 2003. Adrian was born on August 25, 2000, in Belize. Respondent left Belize on April 29, 2004, with the minor child, arriving in the United States on April 30, 2004. Prior to the time of filing of the Petition before this court, and after Respondent's departure from Belize with the minor child, the Supreme Court of Belize awarded legal custody of Adrian to Petitioner. During the pendency of the Belizean custody proceedings and before the Belize Supreme Court's award of custody to Petitioner, the Belize Family Court entered an order sentencing Respondent to three months' imprisonment under the Belizean Criminal Code for failure to comply with visitation schedules set up by the Belize Family Court.

[3]. Neither Petitioner nor Respondent disputes this fact.

II. THE PARTIES' ALLEGATIONS

Petitioner alleges that at the end of April of 2004 Respondent, a Belizean citizen, wrongfully removed the minor child, a United States citizen, then approximately three and one-half years old, from Belize, his habitual place of residence, to the United States, and unlawfully retained him in Palm Beach County, Florida, without Petitioner's knowledge or consent.⁴ Petitioner further alleges that at the time of the minor child's wrongful removal by Petitioner, there were pending proceedings in Belize commenced by Petitioner wherein he sought legal custody of the minor child. Petitioner alleges Respondent had full notice and knowledge of that unadjudicated matter, and that she participated with legal representation in the proceedings up to the time of her departure with the minor child.⁵

[4]. Belize is a contracting state to the Convention. See http://www.hcch.e-vision.nl/index_en.php?act=conventions.status&cid=24 (indicating Belize's participation in Convention).

[5]. At the time that Respondent left Belize with the minor child, Petitioner had visitation rights and the Belizean court had ordered a psychological evaluation of the child. Petitioner avers that the psychological evaluation was a necessary evidentiary requirement of the custody proceedings.

Respondent asserts that when she left Belize with Adrian she had custody of the minor child because Belizean law confers custody of a child born out of wedlock to the mother. She further avers that at the time of her departure Petitioner only had a right of access to Adrian, which is not protected under the Convention and cannot be enforced through ICARA. Also, she contends that she did not deny Petitioner access to Adrian and alleges that she informed Petitioner of her plans to leave Belize, to many, and to live in the United States. Finally, Respondent contends that, shortly after arrival in the United States, she wrote Petitioner notifying him of hers and Adrian's whereabouts, indicating that Petitioner was welcome to visit the minor child. Therefore, she denies Adrian's wrongful removal or retention, or that she breached any rights of custody of Petitioner protected under the Convention.

III. APPLICABLE LAW

A. The Convention's Purpose and Framework.

The Convention's stated purpose is "to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of ICARA their habitual residence, as well as to secure protection for rights of access." Convention Preamble, 51 Fed.Reg. at 10,498; see also Eliza PÉrez-Viera, EXPLANATORY REPORT: HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, in 3 ACTS AND DOCUMENTS OF THE FOURTEENTH SESSION (Child Abduction) 426, 431 ∂ 24 (1981) (PÉrez-Viera Report) (defining Convention's philosophical focus of protecting children, interpreting their true interests). Moreover, through its return remedy, the Convention seeks "to restore the pre-abduction status quo and to deter parents from crossing international borders in search of a more sympathetic forum." Convention, Arts. 3, 5, 12, and 13; Furnes v. Reeves, 362 F.3d 702, 710 (11th Cir.2004) citing Lops v. Lops, 140 F.3d 927, 936 (11th Cir.1998) (quoting Friedrich v. Friedrich, 78 F.3d 1060, 1064 (6th Cir.1996)). The Convention specifically states that its twin aims are:

a to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

b to ensure that rights of custody and or access under the law of one Contracting State are effectively respected in the other Contracting States.

Convention, Art. 1, 51 Fed.Reg. at 10,498. A removal or retention is considered "wrongful" where it breaches rights of custody under the laws of the state of the child's habitual residence immediately before the removal or retention, and where the person having those rights of custody was exercising them either jointly or alone under the aforesaid laws "or [the rights of custody] would have been so exercised but for the removal or retention." Convention, Art. 3, 51 Fed.Reg. at 10,498; Lops, 140 F.3d at 935. Upon a finding of wrongful removal or retention, the Convention requires "the return of the child forthwith." Convention, Art. 12, 51 Fed.Reg. 10,499. The Convention's intent "is to protect all the ways in which custody of children can be exercised." PÉrez-Viera Report at 446 ∂ 67 (emphasis in original). The sources giving rise to custody rights which the convention seeks to protect encompass all rights within the context of the country of habitual residence's legal system, and the convention favors "a flexible interpretation of the terms used, which allows the greatest possible number of cases to be brought into consideration." Id.; Furnes, 362 F.3d at 716 n. 12.⁶ "Wrongful removal or retention" and "wrongfully removed or retained" includes "a removal of a child before the entry of a custody order regarding that child." 42 U.S.C. § 11603(f)(2). Moreover, the United States grants full faith and credit to judgments of foreign courts. 42 U.S.C. § 11603(g).

[6]. An English decision suggests that under some circumstances a custody order from a court in the country of the child's habitual residence "may itself have custody rights that are violated" by the child's removal without court consent. See Furnes, 362 F.3d at 718 citing B. v. B., 3 W.L.R. 865 (Eng.C.A.1993) (referencing the right held by an "institution or other body" under Article 3 of the Convention).

Further, the party seeking a child's return must show by a preponderance of the evidence that the removal or retention was wrongful. 42 U.S.C. § 11603(e)(1)(A) ; Lops, 140 F.3d at 936. Once a petitioner satisfies that burden, Article 12 of the Convention requires the prompt return of the child unless a respondent pleads affirmatively; and proves, one of the four exceptions listed in the Convention. Convention, Art. 13, 51 Fed.Reg. at 10,499. The ICARA Convention identifies those exceptions as follows: (i) the person requesting return was not, at the time of the retention or removal, actually exercising custody rights, or had consented to, or subsequently acquiesced in, the removal or retention (Convention, Art. 13a, 51 Fed.Reg. at 10,499; 42 U.S.C. § 11603(c)(2)(B) ); (ii) the return would result in grave risk of physical or psychological harm to the child (Convention, Art. 13b, 51 Fed.Reg. at 10,499; 42 U.S.C. § 11603(e)(2)(A)); (iii) the child's return "would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms" (Convention, Art. 20, 51 Fed.Reg. at 10,500; 42 U.S.C. § 11603(e)(2)(A) ); or (iv) the return proceedings commenced more than one year after the abduction and the child has become settled in the new environment (Convention, Art. 12, 51 Fed.Reg. at 10,499; 42 U.S.C. § 11603(e)(2)(B)).⁷ These affirmative defenses "have been defined as 'narrow' " but a federal court retains discretion and may return a child even in the presence of a defense if the return "would further the aims of the Convention." Ahumada Cabrera v. Lozano, 323 F.Supp.2d 1303, 1310 (S.D.Fla.2004) , citing Friedrich, 78 F.3d at 1067.

[7]. Affirmative defenses identified herein at (i) and (iv) must be proven by a preponderance of the evidence, while the other two defenses listed require clear and convincing evidence. 42 U.S.C. § § 11603(e)(2)(A) & (B) ; Ahumada Cabrera v. Lozano, 323 F.Supp.2d 1303, 1310 n. 1 (S.D.Fla.2004) , citing Furnes, 362 F.3d at 712 n.8.

B. Rights of Custody Under the Convention.

[1] At the onset, it is important to note that the Convention does not provide for a determination of custody rights or the merits of a custody dispute. Convention, Art. 19, 51 Fed.Reg. at 10,500; Lops, 140 F.3d at 936. The Convention's underlying premise is that the child's country of habitual residence is the proper forum with jurisdiction to issue custody orders. Ahumada Cabrera, 323 F.Supp.2d at 1310 citing Bocquet v. Ouzid, 225 F.Supp.2d 1337, 1340 (S.D.Fla.2002). Hence, a court considering an ICARA petition may only address a wrongful removal or retention, but not a custody dispute. Lops, 140 F.3d at 936.

The Convention's definition of "right of custody" includes "rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence," clarifying that "rights of access" include only "the right to take a child for a limited period of time to a place other than the child's habitual residence." Convention, Art. 5, 51 Fed.Reg. at 10,498. There is no other specific guidance in distinguishing between the "rights of custody" and the "rights of access." Lalo v. Malca, 318 F.Supp.2d 1152, 1154 (S.D.Fla.2004). The Eleventh Circuit warns that in applying the Convention "we must look to the definition of 'rights of custody' " set forth therein "and not allow our somewhat different American concepts of custody to cloud our application of the Convention's terms." Furnes, 362 F.3d at 711. Furthermore, the Convention indicates rights of custody arise "in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law [of the State in which the child was habitually resident immediately before the removal or retention]." Convention, Art. 3, 51 Fed.Reg. at 10,498. Finally, in interpreting the issue of custody under the Convention, the Eleventh ICARA Circuit explains that " 'decisions for the child in personal matters' encompass more than just the child's care," and that "the violation of a single custody right suffices to make removal of a child wrongful." Furnes, 362 F.3d at 714 & n. 11 (emphasis in original).⁸

[8]. The Furnes court went on to state that "Article 3 of the Convention specifies that the removal or retention of a child is wrongful if it is in breach of 'rights of custody attributed to a person ... either jointly or alone,' " further noting that decision-making authority on the child's relocation to a foreign country applies under the Convention's Article 5, and that contributing to decisions about the child's upbringing is also indicia of joint parental responsibility/custody arrangements, regardless of which parent has physical custody of the child. 362 F.3d at 715-716 & 722 n. 18 (emphasis in original).

IV. DISCUSSION AND FINDINGS OF FACT

Based on the entire record and relying on applicable law, the undersigned makes the following findings of fact:

1. Belize Was the Minor Child's Place of Habitual Residence at All Times Applicable to this Decision.

[2] Although neither the Convention nor ICARA defines the term "habitual residence," the Convention's text specifically mentions the time period immediately before an alleged wrongful removal or retention as the relevant time to be considered. Convention, Art. 3, 51 Fed.Reg. at 10,498; Ruiz v. Tenorio, 392 F.3d 1247, 1251-53 (11th Cir.2004) ; Ahumada Cabrera, 323 F.Supp.2d at 1310; Bocquet, 225 F.Supp.2d at 1343-44. The determination of habitual residence is a mixed question of law and fact, which, besides looking to the place where the child resided just before the removal to another country, also includes, among other considerations, the parents' conduct, their intentions, and any agreements between them during that time period. Ruiz, 392 F.3d at 1251-52 quoting Mozes v. Mozes, 239 F.3d 1067, 1071-73 (9th Cir.2001). Of special significance is the absence of shared or settled parental intent unless objective facts point unequivocally to a conclusion that the prior habitual residence was meant to be abandoned. Bocquet, 225 F.Supp.2d at 1343-44 quoting Mozes, 239 F.3d at 1079-82.

Although in closing argument Respondent's counsel indicated that his client did not dispute that Belize was the minor child's habitual place of residence, ⁹ the court believes it necessary for purposes of its findings of fact to indicate why a preponderance of the evidence indicates that to be the case as of April 29, 2004, when Respondent removed Adrian from Belize. Petitioner testified that the child lived with him and Respondent in Belize City from the time of his birth until Petitioner and Respondent's separation on December 26, 2003, at which time Respondent moved with Adrian to her parents' house in the Belizean town of Corozal, located between eighty-five and ninety miles from Belize City. 5/4/05 R. at 12, 27, 85. Respondent does not deny those facts. After that separation, Petitioner continued to spend substantial amounts of time at Corozal Town with the minor child, with Respondent's parents initially providing a bedroom in their home for Petitioner's use.¹⁰ 4/21/05 ICARA R. at 33. Respondent does not rebut this testimony either. Petitioner denies that he knew that Respondent planned to leave Belize to marry and to reside permanently with Adrian in the United States.¹¹ 4/21/05 R. at 42, 51-52. There is no indication that Petitioner acquiesced to the minor child's removal from Belize at any time. Indeed, the record as a whole shows that Petitioner pursued to the fullest the proper avenues under Belizean law to obtain Adrian's legal custody, and that he always intended to keep the minor child in Belize, Petitioner's own country of residence. See, generally 4/21/05 R. at 38-66; Pet'r's Ex. 1, at 4-12, 14, 19, 20-22 (reflecting pursuit of minor child's legal custody, absence of request from protection of Adrian's removal from Belize).

[9]. As earlier noted, there was no transcript available for the last hearing held on May 24, 2005, at the time of writing this Report and Recommendation. See supra note 2 and accompanying text (identifying existing hearing transcripts).

[10]. That arrangement apparently ceased when animosity between Petitioner and Respondent led to his seeking court redress to ensure his continuing relationship with the minor child.

[11]. Respondent denies these allegations, and her rebuttal, which the court does not find convincing, is dealt with further on in this discussion.

Of significance, too, is that nowhere in the testimony or in the evidentiary documentation from the Belize proceedings is there any indication of Respondent's request to remove Adrian permanently from Belize, or of Petitioner's agreement to such an act. There is also no evidence of any type of agreement between Petitioner and Respondent to have the minor child reside permanently outside Belize with Respondent. Consequently, the court finds that for the purposes of a determination of wrongful removal or retention under the Convention, the child's habitual place of residence was in Belize.

2. Petitioner Had Rights of Custody Before, During, and After the Proceedings in the Courts of Belize.

[3] A brief review of the record is necessary to indicate the conclusion that the preponderance of the evidence supports that at all times pertinent herein Petitioner had rights of custody within the Convention's framework. As earlier noted, prior to Petitioner and Respondent's separation, they lived together with the minor child, with Petitioner participating in the support of, and decision-making for, Adrian. See, e.g., 5/4/05 R. at 58 (reflecting Respondent's admission of Petitioner's financial support of Adrian) and 5/4/05 R. at 207 (describing Petitioner's participation in minor child's school committee). After the separation, Petitioner continued to make decisions for the care of the minor child. See, e.g., 4/21/05 R. at 31, 33-34 and Pet'r's Ex. 2 (showing decision-making power in minor child's health care), and 5/4/05 R. at 14 (containing Respondent's admission of Petitioner's right to object to Adrian's relocation).¹² Sometime after the separation, however, Respondent showed hostility towards Petitioner's right to spend time with the minor child, and she resisted his seeing Adrian. 4/21/05 R. at 39. It was not until the advent of those difficulties that Petitioner instituted proceedings before the Belize Family Court. 4/21/05 R. at 39-40.

[12]. It is counterintuitive, as well as illogical, that Respondent would admit that Petitioner had a right to object to the minor child's relocation to Corozal Town (5/4/05 R. at 14), but would not think he had anything to say about her taking Adrian from Belize to live in the United States.