Case: 17-15364 Date Filed: 11/30/2018 Page: 1 of 28 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 17-15364 ________________________ D.C. Docket No. 8:17-cv-02100-VMC-JSS JOHAN SEBASTIAN ALZAT CALIXTO, Plaintiff - Appellant, versus HADYLLE YUSUF LESMES, Defendant - Appellee. ________________________ Appeal from the United States District Court for the Middle District of Florida ________________________ Before JORDAN and ROSENBAUM, Circuit Judges, and MARTINEZ, * District Judge. JORDAN, Circuit Judge: In September of 2017, Johan Calixto filed a petition in federal court seeking the return of his 5-year old daughter, M.A.Y., to Colombia, under the Hague * Honorable Jose E. Martinez, United States District Judge for the Southern District of Florida, sitting by designation. Case: 17-15364 Date Filed: 11/30/2018 Page: 2 of 28 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, as implemented in the United States through the International Child Abduction Remedies Act, 22 U.S.C. § 9001 et seq. Mr. Calixto had signed a travel consent form allowing M.A.Y. to travel from Colombia to the United States with her mother, Hadylle Lesmes, from November of 2015 until November of 2016. In his petition, Mr. Calixto alleged that Ms. Lesmes had wrongfully retained M.A.Y. in the United States and away from Colombia, her country of habitual residence, beyond November of 2016 and in violation of the Convention. The district court denied Mr. Calixto’s petition for return. It concluded that Ms. Lesmes’ retention of M.A.Y. in the United States was not wrongful under the Convention because Mr. Calixto and Ms. Lesmes had shared an intent to change M.A.Y.’s habitual residence from Colombia to the United States, and because M.A.Y.’s habitual residence had subsequently become the United States through acclimatization. The district court did not, however, address whether Mr. Calixto’s intent to change M.A.Y.’s habitual residence was conditioned upon his joining Ms. Lesmes and M.A.Y. in the United States or whether that intent was vitiated once Mr. Calixto was unable to come to the United States. The answers to those questions are critical to the proper disposition of this appeal, and because shared intent is a factual determination, we remand for further factual findings. 2 Case: 17-15364 Date Filed: 11/30/2018 Page: 3 of 28 I The Hague Convention seeks “to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence.” Hanley v. Roy, 485 F.3d 641, 644 (11th Cir. 2007). “The [C]onvention is intended as a rapid remedy for the left-behind parent to return to the status quo before the wrongful removal or retention.” Ruiz v. Tenorio, 392 F.3d 1247, 1250 (11th Cir. 2004). “The Convention and [ICARA] empower courts in the United States to determine only rights under the Convention and not the merits of any underlying child custody claims.” Baran v. Beaty, 526 F.3d 1340, 1344 (11th Cir. 2008) (quoting 22 U.S.C. § 9001(b)(4)). Thus, “[a] court’s inquiry is ...
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