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Moreno v. Zank

United States Court of Appeals, Sixth Circuit

July 19, 2018

Liz Lorena Lopez Moreno, Petitioner-Appellant,
v.
Jason Michael Zank, Respondent-Appellee.

          Argued: June 14, 2018

          Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 1:17-cv-00732-Paul Lewis Maloney, District Judge.

         ARGUED:

          Amy Grauman, AVANTI LAW GROUP, PLLC, Wyoming, Michigan, for Appellant.

          Matthew T. Nelson, WARNER NORCROSS & JUDD LLP, Grand Rapids, Michigan, for Appellee.

         ON BRIEF:

          Amy Grauman, Robert Anthony Alvarez, AVANTI LAW GROUP, PLLC, Wyoming, Michigan, for Appellant.

          Matthew T. Nelson, Peter M. Kulas-Dominguez, Paul H. Beach, WARNER NORCROSS & JUDD LLP, Grand Rapids, Michigan, for Appellee.

          Before: KEITH, ROGERS, and BUSH, Circuit Judges

          OPINION

          ROGERS, CIRCUIT JUDGE.

         In this case under the Hague Convention on the Civil Aspects of International Child Abduction, a mother seeks the return of a child to Ecuador, the place where the child had become accustomed to living, from a stay with the father in the United States that the mother, at least, intended to be temporary. Relief is available under the Convention only if Ecuador is the habitual residence of the child. The district court held that the mother's original abduction of the child to Ecuador years earlier meant that Ecuador could not be the child's habitual residence. However, the father had not followed through with Hague Convention procedures in Ecuador following the original abduction. Reversal is required because the proper remedy for the initial kidnapping to Ecuador was a Hague Convention petition filed in Ecuador, subject to applicable limitations and defenses, rather than the self-help remedy of (in effect) later re-kidnapping back to the United States. A remand is also necessary, on which various treaty-based defenses may be raised.

         The child at issue here, BLZ, was born in 2006 in Michigan to the then-married couple of Jason Zank, a citizen of the United States, and Liz Lopez Moreno, a citizen of Ecuador. Zank and Lopez Moreno divorced in July 2009. Their divorce decree granted Zank and Lopez Moreno joint legal and physical custody of BLZ, with alternate weekly custody and twice-weekly visitation by each parent. It also prohibited Lopez Moreno from taking BLZ to Ecuador without prior notice to Zank.

         The concerns implicit in the divorce decree turned out to have been well-founded. In December 2009, Lopez Moreno took BLZ to Ecuador with her, in violation of the divorce decree. Zank sought and received a court order from a Michigan state court, the Montcalm County Circuit Court, temporarily granting him sole legal and physical custody of BLZ. Because this proceeding was ex parte, Lopez Moreno was not present during that action.

         Once Zank discovered that BLZ had been taken to Ecuador, he contacted the U.S. Department of State and filled out a Hague Convention petition with the United States Embassy in Ecuador. Zank did not complete the Hague Convention process, however, in that he did not file the petition with the Ecuadorian courts, or otherwise attempt to secure the return of BLZ through procedures in Ecuador. Zank testified that he had not filed the petition or pursued any other remedy in Ecuador because he had suffered what he called "the runaround" from U.S. Embassy officials. The district court determined that Zank's testimony was credible, based in part on the fact that the U.S. State Department has in the meantime labeled Ecuador as not being in compliance with its Hague Convention obligations. The district court, however, did not make ...


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