No. 20-1251

VERONICA LUZ MALAVER AVENDANO,

Plaintiff, Appellant,

v.

LEONARDO ALFONZO BLANCO BALZA,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Allison D. Burroughs, U.S. District Judge]

Before

Howard, Chief Judge, Barron, Circuit Judge, and Katzmann, Judge.

Matthew P. Barach, with whom Barach Law Group LLC was on brief, for appellant. Shamis N. Beckley, with whom Dana M. McSherry, Annabel Rodriguez, and McDermott Will & Emery LLP were on brief, for appellees.

January 11, 2021

 Of the United States Court of International Trade, sitting by designation. KATZMANN, Judge. This wrenching case involves the application of the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention) and its implementing statute to a father's wrongful retention of a child, herein "G*" to protect his privacy. See Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89, reprinted in 51 Fed. Reg. 10,494-01 (Mar. 26, 1986); International Child Abduction Remedies Act (ICARA), 22 U.S.C. § 9001 et seq. G*'s mother, plaintiff-appellant Veronica Luz Malaver Avendano (Avendano), sought G*'s return to Venezuela, alleging that G*'s father, defendant-appellee Leonardo Alfonzo Blanco Balza (Balza), abducted G* in contravention of a Venezuelan child custody order and the Hague Convention. The district court determined that Balza admitted to unlawfully retaining G* in contravention of the Hague Convention and the implementing statute. However, after determining that Balza had established that G* is a mature child such that the court should consider G*'s stated desire to remain with his father in the United States, the district court denied Avendano's petition for return of her son to Venezuela. Avendano appeals that decision. We affirm.

I. BACKGROUND

A. Hague Convention Framework

The Hague Convention "aims to deter parents from abducting their children to a country whose courts might side with

- 2 - them in a custody battle." Díaz-Alarcón v. Flández-Marcel, 944 F.3d 303, 305 (1st Cir. 2019) (citing Darín v. Olivero-Huffman, 746 F.3d 1, 7 (1st Cir. 2014)). Relevant here, the United States and Venezuela are contracting parties to the Hague Convention. See Status Table, Hague Conf. on Priv. Int'l L., https://www.hcch.net/en/instruments/conventions/status- table/?cid=24 (last visited Dec. 21, 2020). In the United States, ICARA implements the Hague Convention and permits a parent to petition a federal or state court to return an abducted child under the age of sixteen to the country of the child's habitual residence. See 22 U.S.C. §§ 9001, 9003(b). The Hague Convention applies only to determine whether a child should be returned, see Hague Convention, art. 1, and does not empower the court to make any determinations regarding child custody. The court simply asks whether a custody decision should be made in the United States or in the country of the child's habitual residence. Díaz-Alarcón, 944 F.3d at 305–06; Walsh v. Walsh, 221 F.3d 204, 218 (1st Cir. 2000).

"The removal or retention of a child is to be considered wrongful where a) it is in breach of rights of custody . . . under the law of the State in which the chil