SEBASTIAN C. CARTES, Plaintiff-Appellee
LISA ELLEN PHILLIPS, Defendant-Appellant
from the United States District Court for the Southern
District of Texas
HIGGINBOTHAM, GRAVES, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge.
Hague Convention on the Civil Aspects of International Child
Abduction generally requires courts in the United States to
order children returned to their countries of habitual
residence, if the courts find that the children have been
wrongfully removed to or retained in the United States."
Chafin v. Chafin, 568 U.S. 165, 168 (2013). In this
case, Sebastian Cartes, the father of a three-year-old girl,
O.C.P., petitioned the Southern District of Texas to order
Lisa Phillips, O.C.P.'s mother and Cartes's wife, to
return O.C.P. to Paraguay, where she had lived with both
Cartes and Phillips from October 2015 to October 2016. After
a three-day bench trial, the district court determined that
Paraguay was O.C.P.'s "habitual residence" and
that Phillips had wrongfully removed her to the United States
on October 24, 2016. Phillips appealed, arguing that the
district court applied the wrong legal standard when
assessing the parties' shared intent about O.C.P.'s
habitual residence, factually erred by finding that O.C.P.
habitually resided in Paraguay before October 2016, and
incorrectly excluded certain evidence of Cartes's
communications with real estate agents in the United States.
Cartes, a U.S. citizen who grew up in Paraguay, and Lisa
Phillips, a U.S. citizen, met in California in 2012 and
married there in February 2013. Their daughter, O.C.P., was
born in California on September 23, 2013. Cartes and
Phillips's marriage was marked by drug use
(Cartes's), sickness (O.C.P.'s), and frequent travel
and relocation. The record suggests that neither Cartes nor
Phillips had a job; they relied almost exclusively on
Cartes's mother Sarah, the sister of Paraguay's
current president, to pay their expenses.
month after O.C.P. was born, the family moved to Houston,
where Phillips's parents live. The family lived there for
about two years, but was rarely settled. When Cartes
wasn't in rehab, the family lived together until
September 2014, when Phillips and O.C.P. moved out and
separately rented an apartment. The family also frequently
traveled to California, Paraguay, and elsewhere. From June
through September 2015, Cartes and Phillips looked for
apartments to rent in California. According to Phillips, she
wanted to move to California to live there long-term;
according to Cartes, they wanted an apartment in California
only for visiting.
testified that sometime in the spring of 2015, he moved to
Paraguay without Phillips and O.C.P. to live there more
permanently. Cartes hadn't moved all of his belongings,
so he returned to the United States in early September to
collect the rest of his things. At this time, he and Phillips
talked about divorce. Cartes consulted with two divorce
lawyers and sent Phillips an email telling her that he was
leaving for Paraguay without her. At the district court's
bench trial, Cartes admitted that "at that time what was
going through [his] mind [wa]s . . . going back to Paraguay
and ending [their] marriage." He "wasn't
thinking at the time of . . . [his] wife and child -- or
where they would live."
later, on October 18, 2015, Phillips and O.C.P. flew to
Paraguay. According to Cartes, before Phillips and O.C.P.
arrived in Paraguay, he and Phillips "had several
conversations about the possibility of going to live in
Paraguay [for] employment, the financial future of [their]
family, [and] the fact that [they] would have assistance with
[their] daughter [from] nannies, parents and so on."
According to Phillips, however, she and O.C.P. weren't
moving to Paraguay. Rather, they wanted to be there when
Phillips's sister-in-law gave birth to Phillips's
nephew (O.C.P.'s cousin). Before leaving Houston,
Phillips renewed the lease for her apartment.
in Paraguay, Phillips and O.C.P. traveled back to the United
States at least twice. O.C.P. continued to have American
health insurance and saw doctors in the United States.
Similarly, Phillips maintained American health insurance for
herself and Cartes. She also kept a car in Houston and paid
her car insurance regularly while she was in Paraguay. But
Cartes testified that he and Phillips also decided to develop
O.C.P.'s connection to Paraguay. For example, the two
decided that O.C.P. would attend a Paraguayan preschool, and
school records reflect that she regularly attended.
also testified that although he and Phillips fought
frequently, they "always intend[ed] to reconcile."
Specifically, Cartes said he and Phillips reconciled around
"June, July, [and] August" of 2016. Text
conversations support this. For example, on August 4, Cartes
told Phillips that he was "focused on the long
term" with Phillips and didn't "want to do
anything . . . that w[ould] be detrimental or c[ould] hurt
[their] chances of this working in the future." Cartes
also told Phillips he wanted to be on her "team"
and to "move forward[.]" Phillips agreed:
"That sounds like a perfect plan to me and I would love
that to be a goal! I will work with you however I can to
achieve that goal[.]"
testified that "throughout" their conversations
about reconciliation, he "expressed [his] desire and . .
. opinion that O.C.P. live in Paraguay because it would be
most convenient for everyone." According to Cartes,
"[Phillips] agreed that she wouldn't be as happy
anywhere else and that she would be fine and happy there and
that [Paraguay] was also her home." Cartes reiterated
that Phillips agreed that Paraguay "would always
be" both her and O.C.P.'s "home" or
"base." Text messages between Cartes and Phillips
illustrate that Phillips indeed described Paraguay as
"home." When Phillips was visiting Argentina in
August 2016, she repeatedly told Cartes, who was in Paraguay,
"I just want to come home."
September 2016, Phillips officially moved out of her Houston
apartment. According to her parents, who moved all of
Phillips's belongings, the apartment was fully furnished;
it looked as if Phillips and O.C.P. still lived there.
Phillips's mom said that Phillips never told any of her
family in Houston that she had "moved" to Paraguay.
October 2016, Phillips decided that she wanted to return to
the United States with O.C.P. On October 9, Phillips ...