Saturday, December 15, 2012
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.
In Rovirosa v. Paetau, 2012 WL 6087481 (S.D.Tex.) Petitioner, Leandro Ampudia Rovirosa ("Ampudia"), brought an action seeking the return of his son, L.A.V., and daughter, M.A.V., to Mexico from the United States. Ampudia and Vieth were the natural parents of L.A.V. and M.A.V. and were both citizens of Mexico. Vieth had permanent resident alien status in the United States since 1980. L.A.V. was born in August 2005 in Mexico City and had permanent resident alien status in the United States based on Vieth's U.S. immigration status. L.A.V. had a U.S. social security number and a Texas identification card. . M.A.V. was born in June 2007 in Mexico City and had permanent resident alien status in the United States based on Vieth's U.S. immigration status. M.A.V. ha a U.S. social security number and a Texas identification card. Both L.A.V. and M.A.V. possessed only Mexican passports. Ampudia and Vieth lived with their children in a rented home on Contreras Street in Mexico City beginning in 2009. The children attended the Alexander Bain Institute in 2009, 2010, and a portion of 2011. They were driven to this school by a chauffeur employed by Ampudia's employer.
From May 10, 2010, to June 11, 2010, Ampudia received voluntary inpatient treatment for a gambling addiction. Ampudia testified that he no longer gambled as a result of this treatment. After Ampudia's release from the rehabilitation facility, the relationship between the parties deteriorated, and they began to discuss a separation.. On December 18, 2010, Vieth and the children went to Acapulco to visit her family for the Christmas holidays. Vieth, assisted by her friend, Celia Tello, packed up clothing and toys at the Contreras Street residence in preparation for her move to Houston to live with a friend. Vieth and her children drove with Tello and Tello's family to Acapulco with the clothing and toys. Vieth and the children flew from Acapulco to Houston, Texas, on December 26, 2010, and lived with Blomfield and his family until January 14, 2011. Between late December 2010 and early January 2011, Ampudia moved into an apartment approximately twenty minutes away from the Contreras Street residence. Ampudia testified that he believed Vieth was taking the children to the United States to visit her mother in Chicago, but learned that they went to Houston instead. Ampudia was aware that Vieth and his children had stayed with Blomfield when in Houston after the Christmas holidays. Vieth and the children returned to Mexico City on January 14, 2011. Vieth testified that although she considered Blomfield's home in Houston to be her and the children's permanent residence by that time, she returned to Mexico City to straighten out her and Ampudia's finances. According to Vieth, the rent on the Contreras Street residence was months in arrears and the utilities were also past due. She attributed the fault of the non-payments to Ampudia.
In February 2010, Vieth moved into Tello's residence, where Vieth and her children shared a bedroom vacated by Tello's two-year-old daughter. Tello averred that Vieth and the children lived with her through May 2011, when Vieth returned to Houston. Ampudia testified that Vieth and the children continued to reside at the Contreras Street address until June 1, 2011. On May 3, 2011, Vieth filed a petition in the 27th Family Court, Mexico City, D.F., to terminate Ampudia's parental rights on the ground that he had abandoned the children due to non-support. In the petition, she claimed that she had borrowed in excess of $633,000 pesos to support the children after he failed to do so. She also claimed in the petition that he had borrowed in excess of $7,000,000 pesos from her and owed $10,000,000 pesos in gambling debts. She sought $176,828 pesos in monthly support. The Mexican petition claimed expenses for the children's activities in Mexico City during the first quarter of 2011. The petition also avered that Vieth paid rent, maintenance fees and water expenses at the Contreras Street residence through May 2011 by using funds she borrowed. Emma Rovirosa testified that she paid these expenses for the same period of time on behalf of her son, Ampudia.
Ampudia's legal expert, David Lopez testified that, in his opinion, Ampudia, as the natural father of the children, had a right of custody, known as patria potestad, under Mexican law. Ampudia and Vieth lived together as a couple and acted as parents to the children. Cohabitation with a child is a parental right under Mexican law and, even after Ampudia ceased to cohabit with the children, he exercised parental rights by paying for their schooling, visiting the children at school or sporting events and having lunch with them. Lopez testified that the fact that Vieth filed a lawsuit to terminate Ampudia's parental rights was an admission by Vieth that Ampudia had rights to be terminated. And Ampudia's filing a response to Vieth's lawsuit was an assertion of his objection to the termination of his parental rights. Lopez acknowledged that patria potestad may be lost by a failure to pay child support for more than ninety days, but that determination had not been made by the Mexican court and, until that court determined that Ampudia abandoned the children, Ampudia had the presumption of having custodial rights. Lopez opined that Ampudia has rights of custody for purposes of the Hague Convention.
Ampudia testified that, until June 2011, he visited the children once a week, took them to lunch or for ice cream, and attended their school and sporting events.L.A.V. and M.A.V. attended the Alexander Bain Institute from January 2011 to May 2011. On May 23, 2011, Vieth committed in writing to pay the past-due tuition at the Alexander Bain Institute for the months of January 2011 to May 2011 by July 4, 2011. The sum was deducted from Ampudia's salary. On May 20, 2011, M.A.V. and L.A.V. were seen by their pediatrician in Mexico City. Vieth testified that another reason for her return to Mexico City with the children in January 2011 was to renew the passport of M.A.V., which would expire in April 2011. Ampudia's signature was required by law to renew the passport, and, according to Vieth, he delayed complying with her requests to renew the passport for months. On May 31, 2011, Ampudia and Vieth went to the passport office and signed documents renewing M.A.V.'s passport. Ampudia, Vieth and the children had lunch at Ampudia's apartment that same day. Vieth testified that she told Ampudia on May 31, 2011, that she had filed the lawsuit to terminate his parental rights. Vieth conceded that she did not tell Ampudia that she and the children were flying to Houston the following day. On May 31, 2011, Ampudia applied for a passport for himself, replacing one that had been lost. Vieth produced this lost passport, along with his U.S. visa, in discovery in this action, leading Ampudia to conclude that Vieth had retained his passport and visa to prevent him from traveling to the United States in pursuit of her and the children. Vieth denied taking Ampudia's passport but had no credible explanation for its discovery in her possession.
On June 1, 2011, Vieth purchased airline tickets for herself and the children to travel from Mexico City to Houston, Texas, later that same day. The children ha continuously resided in Houston, Texas, since June 1, 2011. Ampudia was served with Vieth's lawsuit to terminate his parental rights on June 10, 2011. He filed his answer and countersuit for visitation rights on June 29, 2011. That case was being actively litigated in Mexico City. Ampudia testified that he was unaware of where his children were after June 1, 2011. Ampudia concluded that Vieth and the children were in the United States because the automatic voice mail message on Vieth's phone was in English. Ampudia asserted that Vieth never answered his calls or voice mails, and the first time he learned that Vieth and the children were in Houston, Texas, was when Blomfield phoned him on August 18, 2011. Blomfield averred that while he was certain that Ampudia knew that Blomfield lived in Houston, he could not say that Ampudia knew exactly where he lived. Contradicting Ampudia's testimony in part, Vieth testified that Ampudia, along with his father and brother, spoke to M.A.V. on her birthday in June 2011 via Vieth's cell phone.. M.A.V. and L.A.V. attended summer camps in Houston, Texas, during the summer of 2011. M.A.V. and L.A.V. attended The School at St. George Place, a public elementary school in Houston, for the 2011-2012 academic year. Ampudia's parents traveled to Houston, Texas, several times to visit the children.
Their first visit was in September 2011. Because Vieth had Ampudia's U.S. visa in her
possession when she traveled to Houston in June 2011, Ampudia could not travel to the United States until he obtained a replacement visa, which he was not able to do until January 2012. In April 2012, Ampudia traveled to Houston to see the children.
The children were presently enrolled in The School at St. George Place for the
2012-2013 academic year. Since October 2012, Vieth worked in Mexico several
days a week. In her absence, the children were cared for by Blomfield, his wife, and a
family member of Vieth.
In support of her claim of abandonment, Vieth testified that eight months passed before Ampudia paid any child support, that he failed to help with the children, failed to take them to school and did not feed or clothe them. The district court held that this was a claim reserved for the Mexican court. Vieth testified that she was a public figure in Mexico because of her employment as an actress. She believed that her children might be kidnapped because of Ampudia's gambling debts. Vieth also feared that the children may be harmed in an earthquake or fire. She acknowledged that her fears of kidnapping did not prevent her from returning from Houston with the children in January 2011. Vieth also conceded that she made several personal appearances at public events with the children but felt safe because of the security provided by the sponsors of the events.
The district court found that Ampudia had established by a prima facie case preponderance of the evidence that, under the laws of Mexico, he had rights of custody over L.A.V. and M.A.V. and that he was exercising his rights of custody over L.A.V. and M.A.V. at the time of the children's removal from Mexico by Vieth; that Mexico was L.A.V.'s and M.A.V.'s habitual residence before their removal from Mexico by Vieth; and that Vieth wrongfully removed L.A.V. and M.A.V. from their habitual residence in Mexico in violation of Ampudia's rights of custody over the children.
Given that Ampudia established by a preponderance of the evidence each of the elements required by the Hague Convention to show that Vieth wrongfully removed L.A.V. and M.A.V. from Mexico, and given that Vieth has failed to meet her burden that any of the exceptions apply to the facts of this case, the court ordered the return of L.A.V. and M.A.V. to Mexico, their habitual residence prior to their wrongful removal by Vieth.