Removal and Retention – Arts 3 and 12
The Supreme Court of Mendoza held that for wrongful removal or retention to exist, two elements must be present, a legal and a factual one. The first one requires that the removal or retention of the child be in violation of the sole or shared custody rights of an individual, an institution or any other body, under the applicable law in the State where the child habitually resides. The second one requires that said rights be actually exercised at the time of removal or retention, or that they would have been exercised had it not been for said retention or removal.
Thus, in order to establish the wrongfulness of the mother’s conduct, an analysis of whether custody rights were violated must be carried out in accordance with the relevant provisions of the legal system from the State of habitual residence of the girl. Given that the Supreme Court of the Province determined that the habitual residence of the child was in Argentina, the wrongfulness of the removal had to be analysed under Argentine law.
Under Argentine law, the authorisation for minor children to exit the country requires a joint express decision by both parents. Nevertheless, said authorisation can be replaced by one issued by court. In this case, the Argentine court that heard the parents’ divorce itself was the one to grant authorisation for the girl to return to Argentina, which is why the Provincial Supreme Court held that the removal had not been wrongful, even though said decision was not yet final and unappealable.
Habitual Residence – Art. 3
The Supreme Court of Mendoza held that the notion of the child’s habitual residence refers to a factual situation of stability and permanence and to the centre of gravity of the child’s life, excluding any references to their domicile. In addition, it recalled that there is tremendous difficulty in ascertaining what habitual residence is under the Convention and that the caselaw on the issue is far from settled amongst courts around the world: in some cases, priority is afforded to the special situation of the child whilst in others priority is either given to their parents’ will or a combination of these factors is considered.
However, the Court underscored that in all cases, a minimum stay in a place is required, during which the child must have made real and meaningful bonds. This circumstance must be considered together with the parents’ intentions, especially when there are young children involved.
The Court held that the habitual residence of the girl was in Argentina, since she had made no stable and permanent bonds or connections in the United States that would allow for a determination that her place of living was there. The decision was based on her young age and the brief period of time she and her mother had stayed there, during which they were locked in the house of the grandparents of the girl, without generating any bond with the community. Additionally, due consideration was given to the fact that they had stayed at a women’s shelter for four months thereafter.
Moreover, it was held that the evidence submitted by the father, such as the green card, the passport, the health insurance, among others, was not sufficient to ascertain a factual situation, such as that the habitual residence of the child was in the United States. In the Court’s opinion, it was not established either that both parents had the intention to abandon their place of habitual residence, since the mother of the child had strongly expressed her wish to return to Argentina a few weeks upon arrival to the United States. Further, it was held that the purpose of the trip was disputed, since the mother stated that they went there for a family visit, whilst the father asserted that they wanted to live in the United States.
Procedural Matters
The father of the girl filed a federal extraordinary appeal before the Argentine Supreme Court, which was denied without an assessment on the merits and thus the Provincial Supreme Court’s decision is final and binding.
Author: Sofia Ansalone and Natalia Petz (Head of INCADAT LATAM summary team Prof. Nieve Rubaja, Asistente Emilia Gortari Wirz)
