Flores-Aldape v. Kamash

202 F. Supp. 3d 793, 2016 WL 4430835, 2016 U.S. Dist. LEXIS 111469
CourtDistrict Court, N.D. Ohio
DecidedAugust 22, 2016
DocketCase No. 3:15 CV 2076
StatusPublished
Cited by3 cases

This text of 202 F. Supp. 3d 793 (Flores-Aldape v. Kamash) is published on Counsel Stack Legal Research, covering District Court, N.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Flores-Aldape v. Kamash, 202 F. Supp. 3d 793, 2016 WL 4430835, 2016 U.S. Dist. LEXIS 111469 (N.D. Ohio 2016).

Opinion

MEMORANDUM OPINION AND ORDER

JACK ZOUHARY, United States District Judge

Introduction

Plaintiff Javier Flores-Aldape petitions for the return of his minor child, C.F., under the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”), as implemented by the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. § 9001 et seq. Javier alleges C.F. is being wrongfully retained in the United States by her mother, Defendant Fatin Shawki Kamash, and seeks C.F.’s immediate return to Mexico. Fatin argues C.F. has not been wrongfully retained because her habitual residence is [797]*797the United States. Fatin. also argues exceptions to the Hague Convention prevent C.F.’s return to Mexico.

This Court held an evidentiary hearing in this matter on June 13, July 8, and July 14, 2016. This Court also reviewed pre- and post-trial briefs from both parties (Docs. 29, 37, 45^6).

Findings of Fact

The Courtship

Fatin and Javier met online in the summer of 2009 (Doc. 48 at 64-65). Javier is a Mexican citizen who, at the time, was studying for a Master’s degree in Germany (id. at 65). Fatin, an Iraqi native, was a U.S. resident; she has since become a naturalized U.S. citizen (Tr. Ex. 70). In February 2011, Javier found a job in Mexico as an aviation engineer for General Electric (Doc. 48 at 67). Later that year, Fatin traveled to Mexico with her father to visit Javier. While there, they toured a house Javier was considering purchasing (id. at 37, 53-54, 69-71). Javier bought the house and moved in while it was being renovated (id. at 71-72).

In March 2012, Javier and his family traveled to Michigan to - celebrate Javier and Fatin’s engagement (id. at 41). The Flores-Aldape and Kamash families held an extended family meeting to discuss the couple’s future. Fatin’s brothers, in particular, sought a commitment from Javier that he would support Fatin in pursuing a second degree in pharmacy (Doc. 49 at 3-4, 27-28). Javier confirmed he fully supported Fatin’s goals and wanted to find work in the United States so the family could .live here long term (id.). A few months later, Fatin visited Javier in Mexico again for about a week. She checked on the renovations at the house and looked for a wedding dress (Doc. 48 at 72-73). Javier and Fatin married in November 2012 in Troy, Michigan (Tr. Ex. 2).

The next month, Fatin moved to Queré-taro, Mexico on a visitor’s visa (Doc. 48 at 80). She did not have a job in Mexico, but instead took some Spanish classes and assisted in renovating and decorating the family home (Doc. 49 at 20-21, 76; Tr. Exs. 41, 43(a)-(b), 43(e), 45(a)). Javier and Fatin looked into applying for a Mexican residency permit for Fatin but did not proceed with the paperwork (Doc. 48 at 80-82).

C.F.’s Birth

Fatin learned she was pregnant in July '2013. The next month, she returned to the United States in anticipation of an immigration interview scheduled for September 2013 (Doc. 48 at 243-44). While in Michigan, Fatin enrolled in classes at Oakland Community College and worked as a math and chemistry tutor (id. at 260; Tr. Ex. 61). She became a U.S. citizen in November (Tr. Ex. 70). C.F. was born in Mount Clemens, Michigan on March 30, 2014 (Tr. Ex. 4). Javier traveled to Michigan for the birth and returned to Mexico about a week later (Doc. 48 at 125-26).

Fatin and C.F. remained in Michigan for four months. C.F. saw a Michigan pediatrician regularly (Tr. Exs. 57-58), and Fatin continued her work at Oakland Community College (Doc. 48 at 222). During this time, Javier and Fatin began the U.S. visa application process for Javier (id. at 133— 35). In May 2014, Fatin submitted a petition for alien relative on Javier’s behalf, and the petition was approved later that month (Tr. Exs. 69-71). In late July 2014, Fatin and C.F. flew to Mexico on round-trip tickets, with a return date in April 2015.1 Fatin left many of her belongings, [798]*798including her car and some of C.F.’s clothing, toys, and baby supplies, at her parents’ home, which she maintained as a mailing address (Doc. 48 at 204-05; Doc. 49 at 9-10, 41). Fatin and Javier also maintained their joint U.S. bank account (Tr. Ex. 85).

Life in Mexico

Fatin, Javier, and C.F. lived together in the family’s home in Querétaro, and C.F. was baptized in Mexico in August 2014 (Tr. Ex. 5). Later that month, Javier lost his job with General Electric (Tr. Ex. 8), but the family remained in Mexico, living off Javier’s savings and receiving additional financial support from his parents (Doc. 49 at 91). C.F. received her vaccinations from a Mexican pediatrician (Tr. Ex. 35) but, given her young age, she was not enrolled in daycare or any extracurricular activities and had limited interaction with the community beyond her own family (Doc. 48 at 133, 200-02). Fatin obtained a Mexican permanent resident card2 and opened a bank account in her name in Querétaro (id. at 90-92; Tr. Exs. 7, 22). With Javier’s consent, and in light of his unemployment, Fatin also renewed the Medicaid insurance for herself and C.F. (Doc. 48 at 205-06; Tr. Ex. 66).

In the spring of 2015, the family celebrated C.F.’s first birthday (Doc. 48 at 100-01; Tr. Ex. 13) and vacationed with Javier’s family in Mexico (Doc. 48 at 48). Meanwhile, Javier sought employment in Mexico (id. at 50-51; Tr. Ex. 27) and also considered applying to a Ph.D program at the Universidad Nacional Autonoma de México (Doc. 49 at 91). At the same time, Fatin and Javier continued to pursue Javier’s U.S. visa application (Doc. 48 at 217-18; Tr. Ex. 73), and Fatin applied and was accepted to the pharmacy program at The University of Findlay in Ohio for the fall 2015 semester (Tr. Ex. 64).

Fatin & C.F. Visit the United States

At some point, Javier and Fatin’s relationship deteriorated, and they discussed the possibility of divorce (Doc. 48 at 143— 44). Fatin and C.F. were originally scheduled to fly to Michigan on April 30. However, Fatin suffered an epileptic seizure that day and had to reschedule their flight (id. at 94). When Fatin and C.F. left for Michigan on May 10, 2015, Javier drove them to the airport, and Fatin and Javier parted on good terms (id. at 46, 144, 151). Fatin and C.F. left their winter clothes and many of their other belongings, including C.F.’s toys and crib, in Mexico (id. at 110-14; Ex. 20). Upon her arrival in Michigan, Fatin resumed her part-time tutoring work at Oakland Community College (Tr. Ex. 62) and enrolled C.F. in daycare (Tr. Ex. 83). Fatin also applied for and received WIC and child care assistance benefits in Michigan (Tr. Exs. 66(b), 68). While still in Mexico, Javier arranged for the payment of his Immigrant Visa (“IV”) application processing fee in early July 2015 (Doc. 48 at 140-41; Tr. Exs. 75, 77).

Though Javier and Fatin stayed in touch during the summer, them communications were strained (Tr. Exs. 9, 25, 26, 44, 75, 81, 82). Javier spoke to C.F. via Skype on a few occasions (Doc. 48 at 227-28) and provided limited financial support to Fatin and C.F (Doc. 49 at 48-49, 56; Tr. Exs. 42, 44, 82). Tensions came to a head during a phone call in the first week of August, when Fatin informed Javier that she and [799]*799C.F. would not be returning to Querétaro.

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Cite This Page — Counsel Stack

Bluebook (online)
202 F. Supp. 3d 793, 2016 WL 4430835, 2016 U.S. Dist. LEXIS 111469, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flores-aldape-v-kamash-ohnd-2016.