24-1407-cv Swett Urquieta v. Bowe

United States Court of Appeals for the Second Circuit August Term, 2024

(Argued: September 10, 2024 Decided: October 31, 2024)

Docket No. 24-1407-cv

_____________________________________

MARIA ELENA SWETT URQUIETA,

Petitioner-Appellant,

v.

JOHN FRANCIS BOWE,

Respondent-Appellee.

Before:

WALKER, LOHIER, and PARK, Circuit Judges.

Petitioner-Appellant Maria Elena Swett Urquieta appeals from an order of the United States District Court for the Southern District of New York (Engelmayer, J.), denying her petition for repatriation of her son S.B.S. to Chile pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89, reprinted in

(Mar. 26, 1986) (the “Hague Convention”), and its implementing statute, the International Child Abduction Remedies Act (ICARA), 22 U.S.C. §§ 9001–11. Respondent-Appellee John Francis Bowe, S.B.S.’s father, does not contest Swett’s prima facie case that he wrongfully retained their child, but the District Court found that Bowe established two affirmative defenses under Articles 12 and 13 of the Hague Convention. For substantially the reasons stated in the District Court’s opinion and order entered on May 7, 2024, Swett v. Bowe, No. 24-CV-1379,

(S.D.N.Y. May 7, 2024), we AFFIRM.

RICHARD MIN (Michael Banuchis, on the brief), Green Kaminer Min & Rockmore LLP, New York, NY, for Petitioner-Appellant.

KAREN R. KING (Kathleen E. Cassidy, Jordan L. Weatherwax, Megan Knepka, on the brief), Morvillo Abramowitz Grand Iason & Anello P.C., New York, NY, for Respondent-Appellee.

PER CURIAM:

Petitioner-Appellant Maria Elena Swett Urquieta (“Swett”) 1 appeals from

an order of the United States District Court for the Southern District of New York

(Engelmayer, J.) denying her petition for repatriation to Chile of her minor son

S.B.S. from the United States, where S.B.S. was wrongfully retained by his father,

Respondent-Appellee John Francis Bowe. Swett brings her claim under the

Hague Convention on the Civil Aspects of International Child Abduction, Oct.

25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89, reprinted in

1As the District Court noted, the standard practice in Chile is to use a person’s first surname when referring to her in shorthand. Accordingly, we refer to Petitioner- Appellant as “Swett.” 2 (Mar. 26, 1986) (the “Hague Convention”), and its implementing statute, the

International Child Abduction Remedies Act (ICARA), 22 U.S.C. §§ 9001–11. For

substantially the reasons articulated by the District Court in its opinion and order

entered on May 7, 2024, Swett v. Bowe, No. 24-CV-1379,

(S.D.N.Y. May 7, 2024), we AFFIRM.

BACKGROUND

Swett, a Chilean actress, and Bowe, a writer based in the United States,

have a son, S.B.S., who was born in Minnesota in 2012. Swett and Bowe

separated shortly thereafter but shared legal custody of S.B.S, who lived in Chile

with Swett. While Swett enjoyed sole physical custody, she granted travel

authorizations that permitted S.B.S. to visit Bowe in New York City. On

December 23, 2022, S.B.S. and Bowe traveled from Chile to New York under a

travel authorization that expired January 8, 2023. This litigation arose because

Bowe refused to return S.B.S. to Chile on January 8. Instead, he wrongfully

retained S.B.S., enrolled S.B.S. in school in New York City, and sought sole

custody.

On February 23, 2024, Swett filed this ICARA petition seeking S.B.S.’s

return. The District Court held a two-week bench trial and denied Swett’s

3 petition. In a thorough opinion, the District Court explained that Swett had

made out a prima facie case of wrongful retention under the Hague Convention —

a holding that Bowe does not contest — but that S.B.S. need not be returned to

Chile because Bowe had established two affirmative defenses available under the

Convention. This appeal followed.

DISCUSSION

The District Court found that Bowe successfully established two

affirmative defenses under the Hague Convention: the “well-settled” defense

under Article 12, Hague Convention, art. 12;

(e)(2)(B), and the

“child objection” defense under Article 13, Hague Convention, art. 13;

(e)(2)(B). The Article 12 well-settled defense “permits courts to consider

the interests of a child who has been in a new environment for more than a year

before ordering that child to be returned to [his] country of habitual residency.”

Lozano v. Alvarez,

(2d Cir. 2012). The defense is thus available

only if over a year has passed from the wrongful removal or retention until the

filing of the Hague Convention petition. The defense requires a respondent to

show by a preponderance of evidence that the proceeding seeking the child's

return commenced more than one year “from the date of the wrongful . . .

4 retention” and “the child is now settled in its new environment.” Hague

Convention, art. 12;

(e)(2)(B). We agree with the District Court

that the petitioner can consent to an extension of time for the child’s stay, in

which case the retention becomes wrongful at the end of the extension. See also

Taveras v. Morales,

(S.D.N.Y. 2014) (assuming the same).

We have not previously decided, however, whether a petitioning parent

can extend authorization for a child to remain outside the country of habitual

residence after an initial instance of wrongful retention. This extension would

postpone the date of wrongful retention for determining whether the well-settled

defense is available. Today, we adopt the District Court’s analysis of the defense.

The District Court correctly concluded that, even after an initial instance of

wrongful retention, a parent may extend authorization for the child to remain

outside the country of habitual residence. But it was also right to conclude that

Swett did not consensually extend the authorized time and instead merely

acceded to circumstances she felt she could not change after Bowe wrongfully

retained S.B.S. on January 8, 2023. Swett,

, at *31–34. Critically,

the District Court found that Swett could not meaningfully consent to Bowe’s

continued retention because she lacked any practical ability to control Bowe’s

5 decisions, had already filed a police report in Chile on January 10, 2023, and did

not have any firm belief that Bowe would return S.B.S at the end of the extension.

The District Court thus correctly found that Bowe’s wrongful retention of S.B.S.

occurred on January 8, 2023, and that the well-settled defense was available

because Swett did not file her petition until more than a year after that date.

As to the remaining issues raised by Swett on appeal, we affirm for

substantially the reasons articulated by the District Court in its detailed opinion

and order entered on May 7, 2024.

CONCLUSION

We have considered Swett’s remaining arguments and conclude that they

are without merit. For the foregoing reasons, the order of the District Court is

AFFIRMED.

6