Saturday, December 15, 2012

Fernandez-Trejo v. Alvarez-Hernandez, 2012 WL 6106418 (M.D.Fla.)

In Fernandez-Trejo v. Alvarez-Hernandez, 2012 WL 6106418 (M.D.Fla.) the district court granted the Petition for the return of the parties seven-year old daughter ("L.F.A.") to Mexico, where Petitioner he and the Respondent were living at the time L.F.A. was born and where she was raised until she was taken to the United States without his consent.

Respondent admitted in her answer that L.F.A. was born in 2005 in Monterrey, Nuevo Leon, Mexico, and wasy seven years of age. Petitioner testified at great length during the hearing about the family's residence in the Punta Esmeralda neighborhood in Juarez, Nuevo Leon, Mexico, at which the Respondent and L.F.A. resided until her departure to the United States in 2011 to, as Respondent put it, give L.F.A. "a better life." There was no credible testimony from either the Petitioner or Respondent that Petitioner consented to L.F .A's departure to the United States. Instead, Respondent proffered a partially translated, unsigned settlement offer that, according to Respondent's own testimony, was never executed by the parties. Accordingly, the Court found that Mexico was the "habitual residence" of L.F.A. and there was no "settled intention" to leave that behind for permanent residence in the United States. See Ruiz v. Tenorio, 392 F.3d 1247, 1252-53 (11th Cir.2004).

The Court pointed out that the existence of rights of custody are determined by the law of the country in which the child habitually resides at the time of removal." Hanley, 485 F.3d at 645. Citing to an English translation of Mexican law, Petitioner urged the Court to find that Petitioner had joint custody of L.F.A. at the time of the alleged wrongful removal to the United States. Petitioner cited to Articles 414 and 415 of the Civil Code of the Mexican State of Nuevo Leon: Article 414. Parental authority/responsibility (patria poteslas) is exerted jointly by both parents. Article 414 bis.In all cases where the mother does not live with the father of her children, she will have the right of preference to keep the children under seven years of age under her care, unless she practices prostitution, pimping or habitual drinking, suffers from a contagious disease or her antisocial behavior represents a serious danger for the health and morality of the children. Article 415 bis.Even if they do not have custody of the minors, those exerting parental authority/responsibility (patria potestas), have a right to coexist (spend time) with their descendants who will be asked for their opinion on the matter once they reach the age of twelve. The exertion of this right depends on it not representing a risk for the minor and for the fulfillment of child -support obligations. Personal relationships between the minor and his or her ancestors shall not be impeded without just cause. Whoever has custody, has the obligation to respect, promote and allow the coexistence of the child with the non-custodial ancestor exerting parental authority/responsibility (patria potestas). "Patria potestas," a legal concept derived from Roman law, provides for the joint exercise of parental authority. Moreno v. Martin, 2008 WL 4716958, at *9 (S.D.Fla. Oct.23, 2008). The right to exercise parental authority is distinguished from the right of custody because the mother of children under the age of seven years "h[as] the right of preference to keep the child [ ] ... under her care," despite the clear right to coexist with both parents. The right to coexist, if it means anything however, must mean that Respondent was not permitted under Mexican law to unilaterally decide to move L.F.A. to the United States, thus depriving Petitioner the ability to interact and coexist with L.F.A. in any meaningful way. See generally Whallon v. Lynn, 230 F.3d 450 (1st Cir.2000) (recognizing affidavits from Mexican lawyers stating that both parents must consent to the removal of a child under Mexican law).

There being no evidence that Petitioner's parental rights had been terminated under Mexican law, or voluntarily relinquished by Petitioner, the Court found that Petitioner met his burden of establishing that L.F.A.'s removal to the United States breached his custodial rights.

The Court found that Petitioner was actually exercising his custody rights at the time of removal. Petitioner and Respondent were not living together in marital bliss. Although the Court did not find sufficient evidence to support any of the competing
allegations of abuse, there was enough evidence to support a finding that Petitioner remained active in the life of L.F .A. Petitioner testified that he moved out of the family home to spare L.F.A. from the incessant fighting. He provided credible testimony that Petitioner and Respondent reached an informal, unwritten custody agreement by which he would have physical custody of L.F.A. every Wednesday and on weekends. Both Respondent and Petitioner testified that child support funds were transferred to a bank account to which Respondent had access. There was ample evidence that Petitioner was involved in her life. That is all that is required. See, e.g., Moreno, 2008 WL 4716958, at *9; Bocquet v. Ouzid, 225 F.Supp.2d 1337, 1346-47 (S.D.Fla.2002).

Respondent raised two affirmative defenses. Respondent's first affirmative defense was that the petition was served greater than one year from the date of removal from Mexico and L.F.A. had become settled in her new environment. There was no dispute that L.F.A. had been in the United States for greater than one year (i.e., she moved here in August 2011).The Eleventh Circuit has held that the one year limitations period in the Hague Convention can be equitably tolled "where the parent removing the child secreted the child from the parent seeking return." Furnes v. Reeves, 362 F.3d 702 (11th Cir.2004); see, e.g., Mendez Lynch v. Mendez Lynch, 220 F.Supp.2d 1347, 1362-63 (M.D.Fla.2002) (tolling the limitations period because the respondent absconded with children without notifying the petitioner). It was clear that Respondent took L.F.A. to the United States without the consent of Petitioner. There was no testimony that Respondent reached out to Petitioner to notify him of L.F.A.'s whereabouts. Instead, Respondent presented evidence of public filings, i.e., state court divorce proceedings and a driver's license application, to support her argument that Petitioner was remiss in his pursuit to locate her. Respondent filed for divorce in the Circuit Court for the Thirteenth Judicial Circuit in and for Hillsborough County, Florida in a case styled, Daymi Alverez-Hernandez v. Hector Jesus Fernandez-Trejo. Petitioner filed a Notice of Hague Convention Proceedings Related to the Wrongful Removal of Minor Child, L.F.A. in that court. The Court rejected any argument that it was incumbent upon Petitioner to sift through the records of the DMV to locate the Respondent's driving records or any one of the twenty circuit courts in Florida to locate a divorce filing. Petitioner testified that he was only able to locate Respondent and L.F.A. with the help of the Mexican and United States Central Authorities. The Court found that the limitations period was appropriately tolled in this case and Respondent was unable to meet her burden of proving this defense.

Moreover, there was not sufficient evidence to find that L.F.A. was "well settled" in the United States as that term is used in the Hague Convention. Whether a child is "well settled" requires "substantial evidence of significant connections to the new environment." In re Ahumada Cabrera, 323 F.Supp.2d 1303, 1313 (S.D.Fla.2004). Courts consider the child's age, stability of the new residence, school attendance, stability of the mother's employment, and the presence of friends or relatives in the new environment to establish significant connections. The testimony adduced at the hearing showed that L.F.A. was brought to Miami, Florida, and then Largo, Florida, living in a total of three (3) residences in the roughly fifteen (15) months since coming to the United States. L.F.A. spoke some English, attended elementary school in Largo. Florida, and stayed at home with a babysitter in the evening while Respondent went to work. Based on all the factors, and considering an ex parte interview with L.F.A., the Court found that L.F.A. was not well settled in the United States. Mendez Lynch, 220 F.Supp.2d at 1363-64 (finding children not well settled in the United States when they lived in seven locations in only a couple years, even though they were attending school and making friends). Accordingly, Respondent failed to meet her burden of proving her first affirmative defense.

Respondent's second affirmative defense was that L.F.A.'s return to Mexico would
"expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." The Court observed that Respondent must prove by clear and convincing evidence that returning to Mexico would place L.F.A. in an "intolerable situation ." 42 U.S.C.11603(c)(2)(A). An "intolerable situation" under Article 13b of the Hague Convention encompasses, for example, sexual abuse by a parent or other familial relative, Grijalva v. Escayola, 2006 WL 3827539, at *6 (M.D.Fla.Dec.28, 2006) (citing Hague Convention, 51 Fed.Reg. 10494-01, 10510 (March 26, 1986)), or when returning the child would place her in a "zone of war, famine or disease[.]" Friedrich v. Freidrich, 78 F.3d 1060, 1069 (6th Cir.1996). The proper focus of the inquiry is the effect on L.F.A. if she is returned to Mexico. See Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 377 (8th Cir.1995).

As support for this defense, Respondent testified generally that there existed drug trafficking activity and gang violence in the proximal location of their residence in Nuevo Leon, Mexico. Respondent testified that on at least one occasion a stray bullet struck the residence. Other than oblique references to the quality of life in Nuevo Leon, Mexico immediately surrounding the Petitioner's residence, there was no testimony that L.F.A. or Petitioner or Respondent was personally threatened or in immediate danger. The living conditions of the surrounding area, even if as they were as deplorable as Respondent contended did not satisfy the "intolerable conditions" defense by clear and convincing evidence. See Avendano v. Smith, 806 F.Supp.2d 1149, 1177 (D.N.M.2011) ("Although Mexico is more dangerous than the United States at this time, intolerable situation was not meant to encompass return to a home where living conditions are less palatable."). Moreover, removing L.F.A. from her mother will not, standing alone, satisfy this burden. See Rydder v. Rydder, 49 F.3d 369, 373 (8th Cir.1995). Accordingly, the Court found that Respondent failed to prove her second affirmative defense.

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