Tribunal de Apelaciones
Estados Unidos de América
16 December 2009
Residencia habitual - art. 3 | Traslado y retención - arts. 3 y 12 | Grave riesgo - art. 13(1)(b) | Objeciones del niño a la restitución - art. 13(2)
Apelación desestimada, restitución ordenada
The child travelled from the United States to Brazil for holidays accompanied by the mother, a Brazilian national. The child was not returned to the United States after the agreed period of holidays in Brazil, which ended on June 2004.
The Central Authority of the United States contacted the Central Authority of Brazil on 23 September 2004 to transmit the request for the return of the child, lodged by the father. The father hired Counsel, independently, to start judicial proceedings in Brazil seeking the return of the child.
While judicial proceedings in Brazil seeking the return were ongoing, the mother passed away. The father then started new judicial proceedings against the stepfather, with whom the child lived in Brazil. The proceedings against the stepfather, lodged judicially by the father, originates the present decision.
The First Instance decision ordered the return and fixed a transition regime for the child upon arrival in the United States. The stepfather appealed the First Instance decision.
Appeal dismissed, return ordered.
The Court decided that the child was habitually resident in the United States and wrongfully retained in Brazil from the moment the holiday trip to Brazil was supposed to end in June 2004.
The Court found that the adequate jurisdiction to hear the custody case was the State of New Jersey, where the child habitually resided with the father before the retention. The Court refrained from analysing the dispute on who would offer the best quality of life to the child, as such analysis would only be suitable within custody proceedings and was beyond the scope of the proceedings under the Convention.
The Court found that the period between the wrongful retention and the commencement of the judicial or administrative proceeding was inferior to one year. The Court further concluded that the permanence of the child in Brazil for the duration of the return proceedings could not mean evading the application of the Child Abduction Convention. The fact that there were family members in Brazil should also not be invoked as an obstacle to the return.
Considering the need to interpret Article 13(1)(b) restrictively, the Court found no grave risk of harm to the child upon return. There was no evidence of familial instability or of any context or environment of social dangers that would expose the child to physical or psychological harm in the country of habitual residence.
Relying on the evidence presented by the Expert’s Opinion, the Court found that the child had not attained an age and degree of maturity in which it would be appropriate to take into consideration his/her opposition to the return. The Court further considered the child's vulnerability in relation to its emotional state and noted the existence of a process of parental alienation by the family in Brazil.