Forest Lee v. Tiffany Curcio

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 3, 2025
• Docket: 25-11835
• Status: Unpublished

Opinion

USCA11 Case: 25-11835 Document: 23-1 Date Filed: 10/03/2025 Page: 1 of 10

NOT FOR PUBLICATION

In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 25-11835 Non-Argument Calendar ____________________

FOREST ASHLIN LEE, Plaintiff-Appellant versus

TIFFANY ELIZABETH CURCIO, Defendant-Appellee. ____________________ Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 2:25-cv-14096-DMM ____________________

Before JILL PRYOR, BRANCH, and KIDD, Circuit Judges. PER CURIAM: Forest Lee, a U.S. citizen living in Brazil, seeks the return of his minor child to Brazil under the International Child Abduction Remedies Act (“ICARA”). At the time of Lee’s petition, the child USCA11 Case: 25-11835 Document: 23-1 Date Filed: 10/03/2025 Page: 2 of 10

2 Opinion of the Court 25-11835

was in the United States with his mother, Tiffany Curcio. The dis- trict court denied Lee’s petition. We now affirm that denial. I. BACKGROUND Lee and Curcio are U.S. citizens and parents of L.R.L., a mi- nor child born in the United States. Lee and Curcio never married and have not been romantically involved since 2022. In September 2024, Lee and Curcio formed a plan to move to São Paulo, Brazil, with L.R.L. In preparation for the move, they obtained passports for themselves and L.R.L., and traveled to Bra- zil to view apartments and tour potential schools for L.R.L. Lee, Curcio, and L.R.L. arrived in Brazil on January 11, 2025. They entered on 90-day tourist visas, which could be extended an additional 90 days, for a total of 180 days. Curcio signed a 30-month lease for an apartment, and Lee signed a separate 30-month lease for a different apartment. The parents enrolled L.R.L. in school and initiated the process to secure a student visa. Curcio also signed up L.R.L. for extracurricular skateboard lessons. Curcio and L.R.L. did not remain in Brazil for long. In early March 2025, Curcio contacted the U.S. consulate in São Paulo to inquire about her rights regarding L.R.L., as she intended to return to the United States. Curcio was informed that her tourist visa would expire on April 11, 2025, after which time she could be de- ported without L.R.L. “Given the exigent nature of [Curcio’s] im- pending visa expiration,” the consulate issued L.R.L. an emergency passport on March 12, and Curcio and L.R.L. returned to the United States. USCA11 Case: 25-11835 Document: 23-1 Date Filed: 10/03/2025 Page: 3 of 10

25-11835 Opinion of the Court 3

On March 27, 2025, Lee filed a petition under ICARA, claim- ing that L.R.L.’s removal from Brazil was wrongful and seeking L.R.L.’s return to São Paulo, his place of “habitual residence.” That same day, the district court scheduled an evidentiary hearing di- recting Curcio to show cause why L.R.L. should not be remanded to Lee’s custody and returned to Brazil. At the hearing, Lee ap- peared with counsel and Curcio appeared pro se. The parents elected to proceed with the merits of the case at the hearing and have the court reach a decision that day. At the hearing, Curcio testified that she sought to remain in Brazil for only one year. Lee testified that he in fact told Curcio they would stay in Brazil “for only a year.” Curcio’s move was sub- ject to securing employment and necessary prescription medica- tion, and she ultimately struggled to obtain both. Although Curcio signed a lease for an apartment in Brazil, the paperwork was in a foreign language, and she stated she was unaware that it was a three-year lease. Lee did not dispute that the lease was in a foreign language but testified that it was translated and reviewed by Cur- cio. Curcio also testified that she expressed to Lee her safety con- cerns about living in São Paulo. When Curcio asked Lee about re- turning to the United States with L.R.L., she was “brushed off sev- eral times.” The district court entered an oral ruling at the end of the hearing. The court determined that L.R.L.’s habitual residence was not in Brazil and that his removal was not wrongful. After the hear- ing, the district court issued a seven-page written order denying the USCA11 Case: 25-11835 Document: 23-1 Date Filed: 10/03/2025 Page: 4 of 10

4 Opinion of the Court 25-11835

petition and entered a separate final judgment. In its oral and writ- ten rulings, the district court found as important facts that the par- ties are U.S. citizens and were in Brazil for only approximately sixty days, and that most of L.R.L.’s extended family lived in the United States, where L.R.L. spent most of his life. The district court further found that the circumstances of the move “cast further doubt as to the habituality of their planned stay,” as they entered on 90-day tourist visas. Referencing a Brazilian foreign affairs website not cited by either party, the district court noted that the Brazilian gov- ernment made clear that tourist visas were not for those intending to establish residency in Brazil. The district court further observed that Curcio appeared to have “considerable reservations” about establishing long-term res- idency in Brazil, suggesting that her intention to move was, “at the very least, conditional.” In a footnote, the district court credited Curcio’s safety concerns, referencing a travel advisory for Brazil is- sued by the U.S. Department of State, which was not offered as evidence by either party. Finally, the district court also found as “a unique and compelling fact” that Curcio’s departure with L.R.L. was facilitated by the U.S. consulate. The consulate ultimately is- sued an emergency passport for L.R.L. after Lee would not return L.R.L.’s passport to Curcio. The district court acknowledged that some factors indicated that L.R.L. was establishing roots in Brazil, such as his enrollment in school and an extracurricular activity, but the “weight of the USCA11 Case: 25-11835 Document: 23-1 Date Filed: 10/03/2025 Page: 5 of 10

25-11835 Opinion of the Court 5

evidence” suggested that he was not so acclimatized that his resi- dence in Brazil had become habitual. The district court denied Lee’s subsequent motion for re- consideration. Lee now appeals. II. STANDARD OF REVIEW The Hague Convention on the Civil Aspects of International Child Abduction (the “Convention”) and its implementing legisla- tion, ICARA, govern international child abductions during domes- tic disputes. The Convention establishes procedures for the return of abducted children to the place where the child habitually resided before the abduction. See Hague Convention, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89. In a proceeding under ICARA, we review a district court’s factual findings for clear error and its legal conclusions de novo. Pfeiffer v. Bachotet, 913 F.3d 1018, 1022 (11th Cir. 2019). A factual finding is clearly erroneous when a review of the entire record leaves us “with the definite and firm conviction that a mistake has been committed.” Seaman v. Peterson, 766 F.3d 1252, 1261 (11th Cir. 2014) (citation modified). III. DISCUSSION As the petitioning parent, Lee must prove by a preponder- ance of the evidence that Brazil was L.R.L.’s habitual residence and that L.R.L. was wrongfully removed from that residence. See 22 U.S.C. § 9003(e)(1)(A). This appeal turns solely on whether Lee met that burden. And since L.R.L. was in Brazil for only USCA11 Case: 25-11835 Document: 23-1 Date Filed: 10/03/2025 Page: 6 of 10

6 Opinion of the Court 25-11835

approximately sixty days, we note at the outset that the burden is particularly difficult for Lee to meet. The Supreme Court has instructed courts to review the to- tality of the circumstances specific to the case when determining a child’s habitual residence. Monasky v. Taglieri, 140 S. Ct. 719, 723 (2020). Certain facts, such as “the intentions and circumstances of caregiving parents,” are “relevant considerations,” though “[n]o single fact . . . is dispositive across all cases.” Id. at 727. In this Cir- cuit, courts employ “objective facts” and focus on the existence or non-existence of a settled intention to abandon the former resi- dence in favor of a new residence, coupled with an actual change in geography and the passage of a sufficient length of time for the child to have become acclimatized. Calixto v. Lesmes, 909 F.3d 1079, 1084–85 (11th Cir. 2018) (citation modified). And because we are dealing with facts, we must bear in mind the deferential standard of review when assessing the district court’s factual determina- tions. To start, the district court correctly considered the totality of the circumstances in determining L.R.L.’s habitual residence, as demonstrated by its extensive consideration of the factual record. The district court acknowledged the evidence that Lee and Curcio had a settled intention to establish residency in Brazil. See Pfeiffer, 913 F.3d at 1024 (noting that “the parents must share a ‘settled in- tention’ to leave the old habitual residence behind” (citation mod- ified)). That evidence included visiting Brazil to tour potential USCA11 Case: 25-11835 Document: 23-1 Date Filed: 10/03/2025 Page: 7 of 10

25-11835 Opinion of the Court 7

schools and apartments, signing apartment leases, and moving per- sonal belongings to Brazil. After weighing the evidence, however, the district court was unpersuaded that Lee’s and Curcio’s intentions were as settled as Lee argued. Curcio held considerable reservations about living in Brazil prior to relocating, and her conditions for relocating in- cluded securing access to necessary medication, employment pro- spects, and a safe environment for L.R.L. Additionally, they en- tered Brazil on a 90-day tourist visa, which cast further doubt on a shared intention to leave the prior habitual residence. Lee argues that the district court improperly weighed the relocation evidence. We disagree. The district court properly considered their shared parental intent to relocate but correctly acknowledged that “it can- not alone transform the habitual residence.” Calixto, 909 F.3d at 1084 (citation modified). We also find that the district court properly credited the so- cial connections that L.R.L. developed in Brazil. The district court acknowledged the evidence that L.R.L. was establishing roots in Brazil, such as his enrollment in school and extracurricular skate- boarding. But the “weight of the evidence” suggested that he was not so acclimatized that his residence in Brazil had become habit- ual. The district court noted that the parties are all U.S. citizens and were in Brazil for only approximately sixty days. Moreover, the majority of L.R.L.’s family is in the United States, where L.R.L. has spent most of his life. USCA11 Case: 25-11835 Document: 23-1 Date Filed: 10/03/2025 Page: 8 of 10

8 Opinion of the Court 25-11835

Lee argues that the district court committed legal error by placing undue weight on the actions of the U.S. consulate in São Paulo in facilitating L.R.L.’s exit. He asserts that the district court erred in “deferr[ing] to” the decision on L.R.L.’s habitual residence to the U.S. consulate, since the consulate is not the United States’s central authority under the Convention and is thus not charged with upholding the United States’s treaty obligations. According to Lee, the district court “eschewed its independent duty to interpret and apply the Convention.” But even if we were to assume, for the sake of argument, that the district court improperly relied upon the consulate’s actions, the error would be harmless in light of the re- maining evidence the court cited in its consideration of the totality of the circumstances. See Equal Emp. Opportunity Comm’n v. STME, LLC, 938 F.3d 1305, 1322 (11th Cir. 2019) (explaining that we will not reverse on the basis of harmless error); see also Fed. R. Civ. P. 61. Lee contends that the district court should not have consid- ered evidence outside the record when determining habitual resi- dence. The district court consulted two sources that neither party cited in the briefing or testimony: (i) a Brazilian government web- site that stated that tourist visas “are aimed at those travelling to Brazil . . . without the intention to establish residence, for the pur- poses of tourism and transit”; and (ii) a U.S. government website that provided travel advisory information for Brazil. But again, these sources were not independently dispositive in the district court’s analysis. The website on tourist visas was one of several fac- tors the district court considered in examining the parties’ shared intention to relocate. Likewise, the U.S. government website was USCA11 Case: 25-11835 Document: 23-1 Date Filed: 10/03/2025 Page: 9 of 10

25-11835 Opinion of the Court 9

one of several facts the district court considered in crediting Cur- cio’s safety concerns. Even assuming the district court erred in con- sidering these sources, the errors were harmless because their con- sideration had no substantial influence on the outcome of this case given the remaining evidence the district court considered. See Equal Emp. Opportunity Comm’n, 938 F.3d at 1322. IV. CONCLUSION We do not doubt that each parent in this case wants the best for L.R.L. and strongly believes that he or she is the best custodial parent. But our review is limited. The clear-error standard requires us to affirm the district court’s ruling unless we are “left with the definite and firm conviction that a mistake has been committed.” Seaman, 766 F.3d at 1261 (citation modified). We are left with no such conviction. For the reasons stated above, we AFFIRM the de- nial of Lee’s ICARA petition and motion for reconsideration.1

1 Lee’s motion to supplement the record is GRANTED IN PART as to Exhibit

2 and DENIED IN PART as to all remaining exhibits. See Fed. R. App. P. 10(e)(2)(C). Lee has also filed with our Court a letter of supplemental authority under Federal Rule of Appellate Procedure 28(j). This letter is more appropri- ately construed as an additional motion to supplement because the “supple- mental authority” Lee seeks to submit is documentation of the Brazilian au- thorities’ approval of his family-reunification visa application in August 2025. Because this evidence was not presented in the district court, we decline to take judicial notice or otherwise consider it at this stage. See Fed. R. App. P. 10(a); see also Clements v. Florida, 59 F.4th 1204, 1209 (11th Cir. 2023) (“As an appellate court, we do not sit as a collective trier of fact.”). And, even acknowl- edging that Lee has taken a significant step in the process of permanently re- locating to Brazil, this fact does not change our assessment regarding Curcio’s intentions to move. Further, because Lee did not clearly brief any challenge to USCA11 Case: 25-11835 Document: 23-1 Date Filed: 10/03/2025 Page: 10 of 10

10 Opinion of the Court 25-11835

the denial of his reconsideration motion, he has abandoned any such argu- ment. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014).