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Cocom v. Timofeev

United States District Court, D. South Carolina, Charleston Division

January 2, 2019

Raquel Margarita Cocom, Petitioner,
Andrey Timofeev and Irina Timofeev, Respondents.



         This 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. 52.[1] The court also issues a separate return order covering the details of return and the extension of the preliminary injunction.


         Based on the evidence presented at the trial in this matter, the court makes the following findings of fact:

         1. Cocom is a Belizean citizen who has lived in Belize all her life. ECF No. 54, Proceedings 12/05/2018, Tr. 16:18-24.[2] 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.

         2. 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 status.

         3. 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.

         4. The 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.

         5. 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.

         6. 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. 106:15-107:2.

         7. 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.

         8. 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; 91:6-11.

         9. 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 Ex. 13.

         10. 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.

         11. In 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.

         12. The 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.

         13. 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.

         14. The 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' competing accounts.

         15. In 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.

         16. The 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.

         17. By 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. 60:6-61:8.

         18. The 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.

         19. 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.

         20. 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.

         21. On 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.

         The 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. 8.[3] Cocom testified that neither she nor Timofeev wrote the form, but that it was provided to them at the airport.

         22. 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.

         23. 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, Tr. 45:15-22.

         24. 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.

         25. 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. Id.[4]

         26. The 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.

         27. 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.

         28. 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.

         29. On 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 injunction.

         30. The court held a trial on the merits of this case on December 5-6, 2018.


         Cocom's Petition alleges that Timofeev wrongfully retained the Child, in violation of the Convention and ICARA.

         The relevant portions of the Convention, with emphasis added, are as follows:

Article 7
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 ...

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