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Barone v. Barone

United States District Court, S.D. California

June 26, 2017



          Honorable Larry Alan Burns United States District Judge.

         When a parent wrongfully retains foreign children in the United States, the Hague Convention requires the Court to order the children returned to their country of habitual residence so that the home country can determine custody. Brazilian citizens Luciana and Andre Barone entered a divorce agreement that provided for joint custody and allowed Luciana to travel to Boston with their two children, ages 5 and 11, for a temporary four month visit. The agreement specified that after four months, Andre would travel to Boston, which he did, and return to Brazil with the children. Instead, Luciana prohibited Andre from taking the children and fled to San Diego along with her children. Since Luciana wrongfully retained the children in the United States and no grave risk of harm is presented to the children by returning them to Brazil, the Court grants Andre's petition.


         After Andre learned that Luciana was in San Diego with the children, he flew here with his brother and sister, retained counsel, and applied to this Court for a temporary restraining order prohibiting Luciana from fleeing the district. The Court issued a TRO on June 16, 2017, and ordered the U.S. Marshals to take the couple's two children in coordination with Child Protective Services, where the children have been housed pending the hearing on preliminary injunction and trial on June 20, 2017. After granting a three-day continuance, the Court held the hearing on June 23, 2017. Luciana, a Brazilian attorney, represented herself with the assistance of a certified Portuguese interpreter. The Court received documents and testimony, including testimony from both Andre and Luciana, and heard argument from the parties.


         The Hague Convention on the Civil Aspects of International Child Abduction is designed 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 their habitual residence." Convention, 191.L.M. 1501 (1980). The United States implemented the Convention by enacting the International Child Abduction Remedies Act. 22 U.S.C. § 9001. The Act empowers courts to order the return of wrongfully retained children. Id. § 9004.

         A. Jurisdiction

         Luciana did not specifically challenge the Court's jurisdiction at the hearing, but she discussed a pending hearing on a temporary restraining order against Andre issued by the San Diego County Superior Court, Family Court Division. The Hague Convention, however, "preempts a state family court's jurisdiction to decide the merits of a custody dispute relating to the child until a determination is made as to whether the child must be returned pursuant to the Convention." Jurisdiction and Litigation Choices, Cal. Prac. Guide Family L. Ch. 7 A; see Holder v. Holder, 305 F.3d 854, 865 (9th Cir. 2002). And federal courts may order the return of children under the Hague Convention even when one parent has obtained a state court domestic violence injunction against the other parent. See Mendez Lynch v. Mendez Lynch, 220 F.Supp.2d 1347, 1366 (M.D. Fla. 2002) (granting Hague petition and ordering father to take two children back to Argentina despite mother obtaining a domestic violence injunction against father in Florida state court). Therefore, this Court has jurisdiction to decide the Hague petition despite Luciana's ex parte proceedings in state court.

         B. Wrongful Retention

         Under the Convention, Andre has the burden to show by a preponderance of the evidence that Luciana wrongfully retained the children in the United States. Holder v. Holder, 392 F.3d 1009, 1015-16 (9th Cir. 2004). That means Andre needs to prove that Luciana breached his "rights of custody" established in the State where his children were "habitually resident immediately before the removal or retention" and that he would have "exercised" his rights "but for the removal or retention." Convention at 1501; Holder, 392 F.3d at 1014. The Court finds Andre has made that showing.

         Andre submitted a certified translation of the couple's August 30, 2016 divorce agreement. The agreement provides for joint custody of the children and states, "Andre authorizes the stay of his children with their mother in the city of Boston/USA, from 08/31/2016 to 01/13/2017. The authorization is given on an exceptional basis and does not change the children's domicile, which is still Brazilian." The agreement also provides that the stay in Boston is "non-extendable, " that the children "shall be delivered" to Andre on January 13, 2017, and that Andre "shall return with them to Brazil" where "they shall be delivered to the mother, for the beginning of the school year in Sao Paulo." Instead of turning the children over to Andre on January 13, 2017, Luciana fled to San Diego with the children. Applying the Hague Convention to these facts, the conclusion is straightforward: Luciana breached Andre's rights of custody as provided in the Brazilian divorce agreement.

         At the hearing, Luciana suggested that the United States was the children's habitual residence since they have been present here since September 2016 and two state courts (Massachusetts and California) issued TROs. However, it is undisputed that "immediately before" Luciana retained the children in Boston, and then in San Diego, the children were habitually resident in Brazil. The terms of the divorce agreement make clear that "the settled intention of the parents" was for the children to return to school in Sao Paulo and retain their Brazilian domicile. Mozes v. Mozes, 239 F.3d 1067, 1078 (9th Cir. 2001) (reversing denial of Hague petition because district court improperly found United States was children's new habitual residence). Moreover, the argument that the children have acclimated to the United States lacks merit. Luciana is temporarily permitted to be in the United States on a student visa, does not have a job, and does not have a place for the children to stay. She is dependent on financial support from Andre pursuant to the Brazilian divorce agreement. During the course of several months, Luciana moved the children from Brazil, to Boston, and then to San Diego, where the children were staying in a hotel until funds were exhausted. At the time the TRO issued, Luciana had vacated the hotel and her plans for food and shelter were uncertain. The Court "can say with confidence" that the children's attachments to the United States have not "changed to the point where requiring return to the original forum would now be tantamount to taking the child out of the family and social environment in which its life has developed." Id. at 1081.

         C. Grave Risk of Harm Exception

         Children must be "promptly returned unless one of the narrow exceptions set forth in the Convention applies." 22 U.S.C. § 9001. Here, the only colorable exception is whether a "grave risk" of harm exists if the Court orders the children returned to Brazil. Convention at 1502. Luciana obtained a domestic violence restraining order from a state court in Boston and another one in San Diego. In the restraining order request, ...

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