United States District Court, D. South Carolina, Charleston Division
C. NORTON UNITED STATES DISTRICT JUDGE
matter comes before the court on Raquel Margarita Cocom's
(“Cocom”) verified petition (the
“Petition”) under the Hague Convention on the
Civil Aspects of International Child Abduction (the
“Convention”) and the International Child
Abduction Remedies Act (“ICARA”), 22 U.S.C.
§§ 9001-11, against her child's father Andrey
Timofeev (“Timofeev”), and Grandmother, Irina
Timofeev (“Grandmother”), as part of her efforts
to have her child minor child (the “Child”)
returned to her in Belize, ECF No. 8. The Court
GRANTS the Petition and
ORDERS the immediate return of the Child to
Cocom in Belize. To this end, the court issues the following
findings of fact and conclusions of law under Fed.R.Civ.P.
The court also issues a separate return order covering the
details of return and the extension of the preliminary
FINDINGS OF FACT
on the evidence presented at the trial in this matter, the
court makes the following findings of fact:
Cocom is a Belizean citizen who has lived in Belize all her
life. ECF No. 54, Proceedings 12/05/2018, Tr.
16:18-24. Timofeev is a Russian citizen who moved to
Belize towards the end of 2008. ECF No. 55, Proceedings
12/06/2018, Tr. 71:4-7. At the time of Timofeev's
relocation to Belize, Grandmother was already living in the
United States as a lawful permanent resident. She became a
citizen in 2009. ECF No. 55, Tr. 6:11-13.
Cocom and Timofeev met in Belize in March 2009 and began a
romantic relationship soon after. ECF No. 55, Tr. 73:1-7. The
parties have presented conflicting evidence regarding whether
they lived together and whether they had a common law
marriage. Because the court need not rely on these facts in
order to decide this case, the court declines to make a
factual finding regarding their living situation or marital
While the parties dispute many of the aspects of their
relationship, they both agree that Cocom and Timofeev are the
biological parents of the Child, who was born in Belize in
November 2015. Pet.'s Ex. 2. Until her travel to the
United States with Timofeev in 2017, the Child's only
residence was Belize. ECF No. 55, Tr. 108:25- 109:8.
Child is Cocom's second child. ECF No. 54, Tr. 24:4-5.
Her firstborn son, J.J.R., is currently ten years old.
Id. J.J.R. is not the biological son of Timofeev and
is not involved in these proceedings.
Early in their relationship, Timofeev told Cocom of his
intention to immigrate to the United States. ECF No. 54, Tr.
25:11-21. At trial he testified that moving to Belize was
always part of his plan to immigrate to the United States,
because it was an English-speaking country close to the
United States. ECF No. 55, Tr. 71:9-12. Cocom testified that,
prior to the Child's birth, she had no problem with
Timofeev immigrating to the United States, but that she
intended to remain in Belize with J.J.R. and her family. ECF
No. 54, Tr. 25:11-21.
Grandmother filed Form I-130 with the Department of Homeland
Security (“DHS”) on May 27, 2009, in which she
petitioned for Timofeev to (1) receive a visa to travel to
the United States as an unmarried adult son of a naturalized
American citizen, and (2) become a lawful permanent resident.
ECF No. 55, Tr. 28:7-30:6; Pet.'s Ex. 15. Grandmother
testified that she has also paid for the immigration process
for Timofeev and the Child. ECF No. 55, Tr. 15:20-24.
Timofeev testified that, at around the time of this initial
filing, he considered himself in a common law marriage with
Cocom, though the Child was not yet born. ECF No. 55, Tr.
Shortly after the Child's birth in November 2015,
Timofeev again mentioned his plan to immigrate to the United
States. ECF No. 54, Tr. 25:25-26:4. Cocom explained at trial
that she had been open to this idea, but only if she,
Timofeev, the Child, and J.J.R. all immigrated to the United
States together as a family. Id.
Around the same time as this conversation, Timofeev completed
an online Form DS-260 that he electronically signed and filed
with DHS on May 9, 2016. Pet.'s Ex. 14. Cocom testified
that she did not know that Timofeev had been filing any of
these immigration papers. ECF No. 54, Tr. 67:5-6; 69:15-17;
After Timofeev e-filed his Form DS-260, Grandmother filed
Form I-864 with DHS affirming that she was sponsoring
Timofeev to become a lawful permanent resident. Pet.'s
Ex. 12. This time, however, Grandmother included the Child on
the immigration form as an immediate family member of
Timofeev, who was the principal immigrant she would be
sponsoring. Id. The Child was a derivative
beneficiary eligible to receive a visa to travel to the
United States to become a lawful permanent resident. ECF No.
55, Tr. 32:2-33:5. Around the same time, Timofeev also had
completed the Form DS-260 online for the Child. Pet.'s
Cocom testified that she did not know that Timofeev had
started the process for the Child to receive a green card.
ECF No. 54, Tr. 30:20-22; 49:1-10; 67:5- 6; 69:15-17;
91:6-11. She claims she did not know about this process until
Timofeev and the Child were already in the United States. ECF
No. 54, Tr. 30:23-31:2.
July 2016, the Child was examined by a doctor as part of the
paperwork for her immigration to the United States. As
Cocom's expert explained, medical exams are a part of the
immigration process. ECF No. 55, Tr. 38:15-23. The
immigrant-applicants go to certain pre-qualified local
doctors who complete the medical forms. ECF No. 55, Tr.
38:24-39:14. The completed forms are then generally returned
directly to the local consulate by the examining physician,
or are placed in a sealed envelope to be returned to the
consulate by the petitioning immigrant. Id.
parties contest the facts surrounding this doctor's exam.
Cocom testified that on July 6, 2017, Timofeev called her and
asked her to bring the Child to Belize City. ECF No. 54, Tr.
62:3-21. When she arrived, she did not have the Child's
“clinical card” with her, which lists all the
Child's immunizations and other medical information.
Id., Pet.'s Ex. 3. Timofeev then instructed
Cocom to return home, obtain the clinical card, and return to
Belize City. ECF No. 54, Tr. 62:3-21. During the doctor's
exam, Cocom testified that she questioned the doctor
regarding the Child's shots because the Child already had
an appointment scheduled for October of that year to receive
her vaccinations. Id. The doctor responded that the
Child would be in the United States at that time.
Id. Cocom claims that she asked Timofeev to explain
what the doctor meant after the exam finished. Id.
She says that Timofeev explained that the Child was getting
shots that the government of Belize could not afford to give
to all Belizeans. Id.
Timofeev testified that his and the Child's medical
evaluations occurred on the same day. ECF No. 55, Tr. 87:3-4.
Timofeev testified that, after the medical examination, the
doctor spoke with him and Cocom. ECF No. 55, Tr. 87:7-10.
Timofeev testified that, at that appointment, he
“explained we are applying for, permanent residence for
me, my child . . .” ECF No. 55, Tr. 87:10-11.
medical forms from this visit provided to the parties by DHS
were signed by Timofeev, but not by Cocom. Id. The
clinical card referenced by Timofeev in her testimony does
not show a July 5, 2017 medical visit. Pet.'s Ex. 3.
Instead, it shows on page three that the Child received
additional vaccinations on July 6, 2017. Though the treating
physician, Dr. Teresita, Mendez appears to have stamped both
documents with the same stamp, neither party called the
treating physician as a witness. No. other evidence in the
record explains what occurred during this medical
appointment, so the Court is left only with the parties'
addition to the medical evaluation, Timofeev was required to
complete an interview at the American Consulate in Belize to
immigrate to the United States. As Cocom's expert
explained at trial, while the interview can be long and
detailed, most immigrants under the family-based immigration
system have a “DMV experience” where the
immigrant appears at a window and answers a handful of
questions under oath in several minutes. ECF No. 55, Tr.
40:12-41:24. While the immigrant-applicant must appear for
the interview, children under fourteen are not required to
appear. ECF No. 55, Tr. 58:3-10. This would mean that neither
the Child, who was two years old at the time, nor Cocom's
son, who was only about nine years old, likely would have
been required to appear at the consulate to complete the visa
process. Additionally, Cocom's expert explained that only
those with an appointment notice can appear and enter the
consulate and that consulates are “very strict about
appointment notices.” ECF No. 55, Tr. 58:11- 59:15.
However, the expert admitted that he was not familiar with
and could not testify regarding the interview process at the
American Consulate in Belize.
parties' accounts of the visainterview also diverge.
Timofeev testified that his interview was ultimately
scheduled for June 2017 at the American Consulate in Belize
City, Belize. ECF No. 55, Tr. 87:23-88:1. He testified that
he had received an appointment letter that listed his and the
Child's names. ECF No. 55, Tr. 88:1-12. Timofeev
explained that he went to the consulate with the Child and
Cocom, but that Cocom stayed outside of the security
checkpoint with his laptop. ECF No. 55, Tr. 113:7- 15. Cocom
did not enter the consulate at that time. ECF No. 55, Tr.
88:7-12. Timofeev testified that Cocom eventually entered the
consulate and was present for a portion of the interview,
which was conducted in front of a window. ECF No. 55, Tr.
89:1-22. Timofeev claims that the interviewer explained that
only Timofeev and the Child would be travelling to the United
States and that Cocom might not see the Child for several
years. ECF No. 55, Tr. 90:14-91:3.
contrast, Cocom testified that she was at the United States
Embassy in Belize on July 11, 2017, but was not formally
interviewed or put under oath. ECF No. 54, Tr. 59:9-60:
61:9-12; 24; 68:5-8. She claimed that Timofeev was the only
one to answer any questions that were asked. ECF No. 54, Tr.
60:17-24; 61:13-24; 66:14-15. She testified that she never
gave consent to an embassy official for the Child to travel
to the United States permanently, and that she did not raise
any objections while at the embassy because of Timofeev's
bad temperament and her lack of understanding of the process.
ECF No. 54, Tr. 66:6-15; 67:3-16; 69:6-18. Additionally,
Cocom testified that Timofeev explained to the official at
the consulate that Cocom would be travelling to the United
States on a tourist visa, leading her to believe that the
whole family would be getting tourist visas. ECF No. 54, Tr.
immigration paperwork received by the parties from the State
Department and DHS and provided to the Court as exhibits does
not contain any interview appointment letter. ECF No. 55, Tr.
112:14-113:6. Likewise, the Court record does not contain any
documentation about the visa interview to corroborate either
side's version of events. Further, the physical
documentation that the court does possess- namely the
Child's medical records and the immigration application
forms submitted by Timofeev and Grandmother-did not require
Cocom's signature or otherwise indicate that she must
have given her approval for them to be submitted and for the
Child to obtain a visa.
Following the completion of the immigration process, Timofeev
and the Child received visas to travel to the United States
and to become lawful permanent residents. ECF No. 55, Tr.
48:9-13; Pet.'s Ex. 19. Cocom testified that she was not
aware of this, instead thinking that they had received
tourist visas. ECF No. 54, Tr. 49:11-16. Cocom's
immigration law expert explained the differences between
tourist and immigration visas. ECF No. 55, Tr. 54:7-55:18.
Generally speaking, the type of immigrant visa received by
Timofeev and the Child is used to permanently relocate to the
United States. Id. Conversely, a non-immigrant,
“tourist, ” or “B” visa that Cocom
thought the family would receive is usually for a six-month
visit and “comes with this implicit promise that at the
end of that six months, you're going to return [to your
home country].” Id.
Timofeev testified that his and the Child's visas for
permanent residency status were approved in mid-October 2017,
and that he informed Cocom of this immediately. ECF No. 55,
92:6-22. Cocom testified that she was not made aware of the
permanent residency visas and was rather told on November 4,
2017 that Timofeev and the Child would be departing for a two
week visit the following day.
November 4, 2017, Grandmother purchased tickets for Timofeev
and the Child to fly from Belize to Miami the following day.
ECF No. 55, Tr. 17:13-19; 113:22-114:1. The parties testified
when they arrived at the airport the next day, November 5,
2017, the Belizean immigration authorities required a signed
document from Cocom authorizing the Child to fly out of the
country. ECF No. 55, Tr. 118:1-10.
document was drafted and signed at the airport shortly before
the flight. Id. The document authorizes Timofeev to
take the Child out of Belize, but is silent as to the length
of the trip or the scope of the authorization. Resp. Ex.
Cocom testified that neither she nor Timofeev wrote the form,
but that it was provided to them at the airport.
Cocom testified throughout the trial that she and Timofeev
had agreed that Timofeev would take the Child to the United
States for two weeks to visit Grandmother and would then
return home. By contrast, Timofeev claimed that the plan at
the time of his departure was that he and the Child would
travel to the United States and then petition to bring Cocom
and her son, J.J.R., into the United States legally. ECF No.
55, Tr. 14:4; 100:21-101:1; 114:12-115:1117:21-25.
Timofeev and the Child arrived in Miami on November 5, 2017,
and presented themselves to Customs and Border Protection for
admission into the country. Pet.'s Exs. 6-7. Cocom's
immigration expert testified that travellers entering the
United States with children are not required to present any
parental consent documentation-a child's passport and
visa will suffice. ECF No. 55, Tr. 47:11-23. At that point,
Timofeev and the Child became lawful permanent residents, and
several weeks later they received their permanent resident
cards (“green cards”) in the mail. ECF No. 55,
After arriving in the United States, Cocom would routinely
speak with Timofeev and the Child over the phone. ECF No. 55,
Tr. 115:21-116:11. After a brief stay in Marion County, South
Carolina, the Child began living with Timofeev and
Grandmother in Georgetown County, South Carolina, where she
currently lives. ECF No. 55, Tr. 17:20-21.
Cocom testified that upon learning that Timofeev would not be
returning with the Child two weeks after the child departed
Belize, she visited INTERPOL in Belize to request information
about the location of Timofeev and the Child. ECF No. 54, Tr.
33:14-34:11; Pet.'s Ex. 9. She did so on November 21,
2017, shortly after the alleged fourteen-day return deadline
passed on November 19, 2018. ECF No. 54, Tr. 34:4-6. She also
visited a governmental agency, Human Development, which
serves as the Belizean Central Authority under the Hague
Convection. ECF No. 54, Tr. 34:12-16; Pet.'s Ex. 11. At
that time, she applied for return of the Child under the
Hague Convention. ECF No. 54, Tr. 34:12-24; Pet.'s Ex.
11. Though Cocom's Hague Convention application is dated
January 26, 2018, Pet.'s Ex. 11, Cocom testified that she
was required to return to the Belizean Central to provide
additional information and sign the application, Tr. 54,
34:25-35:6. Cocom attributes this later signature to
processing delays by the governmental agency.
next day, November 22, 2017, Cocom visited the Orange Walk
Police Department and filed a police report. ECF No. 54, Tr.
35:7-24; Pet.'s Ex. 8. In that police report, she stated
that the parties had an agreement for the Child to return
from the United States after two weeks, but that Timofeev
violated the agreement by failing to return the Child to
Belize. Pet.'s Ex. 8.
Cocom also testified that during this time she continued to
ask Timofeev to return the Child to Belize. She testified
that when she would ask Timofeev to return the Child, she
would remind him that they had a verbal agreement that the
Child would only be gone from Belize for two weeks. ECF No.
36, Tr. 36:10-13. At trial, Cocom played a voice recording
that Cocom had made of a telephone conversation between her
and Timofeev, in which she can be heard telling him that he
had agreed to return with her daughter in two weeks, and she
wanted to bring him home. Cocom relies on that recording to
support her argument that Timofeev had agreed to return the
child in two weeks. However, the court was unable to discern
all of Timofeev's answers during that phone call. At
most, the court heard Timofeev state that “I do not
come back” and “I do not just send anything until
she gets these papers.” ECF No. 54, Tr. 43:14-17. Thus,
the court declines to rely on this recording as conclusive
evidence that Timofeev had in fact agreed to only be gone
with the child for two weeks.
Belizean officials completed the application for the Petition
on or about January 26, 2018, after which it was transmitted
to the United States Department of State. Cocom then obtained
pro bono counsel in the United States to locate the Child and
to file the Petition. INTERPOL in Washington, D.C. confirmed
on June 26, 2018 that the Child is now living with Timofeev
and Grandmother in Georgetown, South Carolina. Cocom's
petition before this court, filed on August 14, 2018, alleges
wrongful detention of the Child, in violation of the
Convention and ICARA. ECF No. 1.
August 14, 2018, Cocom also filed an ex parte
emergency motion for a temporary restraining order,
requesting that the court order Timofeev and Grandmother to
surrender their passports to the court and to not remove the
Child from South Carolina. On August 17, 2018, the court
granted in part and denied in part the motion. ECF No. 15.
The order was served upon defendants on August 20, 2018, the
same day that the U.S. Marshal's service confiscated the
passports of Timofeev, Grandmother, and the Child. On August
28, 2018, the court held a hearing at which counsel for
petitioner and respondent Timofeev were present. The court
ordered that the terms of the TRO be issued as a preliminary
court held a trial on the merits of this case on December
CONVENTION AND APPLICABLE U.S. LAW
Petition alleges that Timofeev wrongfully retained the Child,
in violation of the Convention and ICARA.
relevant portions of the Convention, with emphasis added, are
Central Authorities shall co-operate with each other and
promote cooperation amongst the competent authorities in
their respective States to secure the prompt return of
children and ...