Lomanto v. Agbelusi

Background

Angelo Lomanto petitioned under the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act for the return to Spain of his children, R.A.L. and S.M.L. Agbelusi had traveled with the children from Marbella, Spain, to New York City in June and July 2021 for a visit. Lomanto gave written permission for the trip, but the permission letter did not specify a return date. The parties ultimately agreed that Agbelusi and the children would return on August 28, 2021.

On August 24, 2021, Agbelusi told R.A.L. that they would remain in New York, where she had enrolled the children in school. She also told Lomanto that she planned to stay in New York with the children. Lomanto reported the children missing to Spanish police on August 25 and stated that he did not consent to their remaining in the United States. The court found that the wrongful retention began on August 24, 2021. Lomanto filed this federal action on August 26, 2022, and the case was later transferred to the Southern District of New York.

Agbelusi conceded that Lomanto had established the basic facts needed to seek return under the Convention. She relied instead on three defenses: that the children were settled in the United States because more than one year had passed; that R.A.L. was mature enough to object to returning; and that returning the children would expose them to a grave risk of physical or psychological harm.

Now-Settled Defense

The court held that the now-settled defense was available because the petition was filed more than one year after the August 24, 2021 retention. The court rejected Lomanto’s arguments that the relevant date should be August 28, October 2021, or August 25, 2021. It also rejected his argument that the federal time-counting rule made the August 26, 2022 filing timely under the Convention.

The court then found that R.A.L. and S.M.L. were settled in New York. The children were fourteen and six at the time of trial, attended school consistently, and had developed school, church, extracurricular, friendship, and family connections in New York. R.A.L.’s academic performance had improved, and both children were described as thriving in school. Although the children lived in a domestic-violence shelter and lacked legal status in the United States, the court found that their housing was stable, their needs were being met, and their immigration status did not prevent a finding that they were settled. The court concluded that returning them to Spain would be disruptive and likely harmful.

Mature-Child Defense

The court found that R.A.L., who was fourteen, was sufficiently mature for the court to consider his views. After an in-camera interview and review of Dr. Edward Fernandez’s evaluation, the court found that R.A.L. was mature, thoughtful, independent, and credible. R.A.L. clearly and rationally objected to returning to Spain because he wanted to remain with his mother and preserve his life, friends, and school in New York.

The court found that S.M.L. was not sufficiently mature to qualify independently for this defense. But the court also found that separating the siblings would cause significant hardship and psychological harm. Because of R.A.L.’s objection and the need to avoid separating the children, the mature-child defense independently supported denial of the petition.

Allegations of Harm

The court found Agbelusi’s allegations that Lomanto had subjected her to intimate-partner violence credible. The court also found that Lomanto had made at least some race-based comments concerning Agbelusi and New York neighborhoods. However, the court did not find it likely that Lomanto had abused the children. It also did not find that Agbelusi posed a current threat or risk of harm to the children, despite an October 2021 physical altercation between Agbelusi and R.A.L. Ultimately, the court found that neither parent had shown that the other posed a risk of harm to the children.

Because the court denied the petition on the now-settled and mature-child defenses, it did not decide Agbelusi’s separate grave-risk defense.

Disposition

The court denied Angelo Lomanto’s petition for the return of R.A.L. and S.M.L. It emphasized that the Hague Convention proceeding did not decide custody or determine that Lomanto was unfit to be a parent. The court directed the Clerk of Court to close all open motions and close the case. The court also made evidentiary rulings, including excluding Lomanto’s exhibit HHHH while accepting other exhibits according to their evidentiary value and persuasiveness.