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Friday, September 15, 2017

Sarabia v Perez, 225 F.Supp.3d 1181 (D. Oregon, 2017) [Mexico][Habitual Residence][Petition denied]


            In Sarabia v Perez, 225 F.Supp.3d 1181 (D. Oregon, 2017) Plaintiff Anita Castro Sarabia (“Castro”) filed a complaint requesting the court order the return of KMRC, her seven year old son with defendant Bulmaro Ruiz Perez (“Ruiz”), to Mexico.

          The district court found that in 2008, Castro and Ruiz met. They lived together for a few months before separating. Two months after the separation, Castro learned she was pregnant with Ruiz’s child, KMRC. When Castro informed Ruiz she was pregnant, Ruiz immediately told Castro he would help support the child. Even before KMRC’s birth, Ruiz began making monthly child support payments to Castro. Castro gave birth to KMRC in April 2009. Ruiz testified that although he worked during the week and lived about an hour’s drive away, he visited KMRC on many weekends. Ruiz testified he would take KMRC shopping to buy toys and “little things like that.” While Ruiz clearly was not a daily fixture in KMRC’s life the Court found that his testimony more credible than Castro’s. Ruiz was at the hospital and held KMRC on the date of his birth. Castro’s attempts to minimize Ruiz’s involvement in KMRC’s life while in the United States were not credible in light of all of the evidence.

           In 2011, Castro decided to go to Mexico. Ruiz testified the parties got into an argument in mid–2011 when Castro called Ruiz and informed him she was taking KMRC to Mexico to visit her parents. Ruiz, who did not want KMRC going to Mexico, informed Castro that taking KMRC without his consent was illegal. Castro continued pressing Ruiz on the subject of the visit, although she was unwilling to commit to a time frame with respect to the length of the trip. At one point, Castro said she would go for three months. Later, she said six months. As Castro had not seen her parents in a long time, Ruiz ultimately consented to the request. The Court found the parties reached an agreement that Castro could take KMRC to Mexico on a seven month trip. Because Castro needed Ruiz’s permission to take KMRC out of the country, on October 25, 2011 Ruiz signed a notarized statement giving Castro permission to take KMRC “on their trip to Pachuca Hidalgo, Mexico. The trip is scheduled for departure on November 2nd, 2011 with an approximant [sic] 7 month stay, returning on May 15, 2012.”

          By May of 2012, contrary to her agreement with Ruiz, Castro had essentially settled in Mexico. KMRC at this time was one month past his third birthday. Castro married in August 2012 and lived on her parents’ ranch in a rural area outside of Mexico City. Ruiz asked Castro to send KMRC back to the United States in accordance with the parties’ agreement. Ruiz testified he told Castro “I want to see the boy. Send him to me.” Castro did not agree but said she would send KMRC at some later point if Ruiz gave her an extension. Ruiz testified, convincingly, that he really had no choice at this time but to agree to an extension. On June 15, 2012, Ruiz signed a second notarized permission slip.  This slip extended the Mexico trip, “scheduled for departure on November 2, 2011 with an approximate returning date of May 15, 2014.” The court found that by June 2012, Castro made the unilateral decision to keep KMRC in Mexico.

          Ruiz testified he called Castro attempting to speak with his son. But Castro usually made excuses why Ruiz could not talk to KMRC. For instance, Castro would say KMRC was sleeping or visiting with his grandparents. With Castro limiting even phone calls between Ruiz and his son, and with Castro simply not returning in accordance to the original agreement, Ruiz had to agree to the two year extension as his best hope for his son to someday return to the United States. Ruiz consistently held the desire and belief that KMRC would one day return home to live permanently in the United States. During the entire time KMRC remained in Mexico, Ruiz continued to make relatively consistent child support payments to Castro.  Like the first deadline to return, the second deadline came and went. Eventually, by September 2015, Castro decided to send KMRC to live in Oregon with her sister for two months. Castro, her sister, and her parents all testified the purpose of this trip was for KMRC to receive medical treatment for a neck issue. Castro sent KMRC, accompanied by his grandparents, back to the United States. Nearly four years had passed since six year old KMRC last set foot in the United States. Ruiz provided a notarized permission slip for KMRC to travel. The Court found that Ruiz by this point would sign pretty much anything if, in his mind, it increased his chances of seeing his son.

          The district court found that the child’s habitual residence was the United States. Castro made the unilateral decision to change KMRC’s country of habitual residence from the United States to Mexico. Ruiz never consented or acquiesced to that change. Instead, Ruiz always firmly wished for KMRC to return to live in the United States. The courts reading of Mozes, along with practically no evidence of KMRC’s acclimatization in Mexico, led to this conclusion.  The court noted that a young child may acquire a new habitual residence in one of two ways: (1) through the parents’ shared settled intention to abandon the initial habitual residence; or (2) if “the objective facts point unequivocally to a person’s ordinary or habitual residence being in a particular place.”  There was no dispute that when KMRC was born, he was a habitual resident of the United States. KMRC was born in Oregon. Both of his parents had lived in Oregon for years and, at least at that time, had no intention of leaving. KMRC then spent the next 30 months or so in the United States.


          In Mozes, 239 F.3d at 1076–77 the court described four scenarios commonly arising in Hague cases. This case involved multiple scenarios described in Mozes. When Castro first took KMRC to Mexico, the parties agreed on a “specific, delimited period” of seven months. After those seven months, Castro simply decided to stay in Mexico with KMRC. The parties then negotiated, for lack of a better term, on an extension. Castro, however, held all the cards in this negotiation. Ruiz could not leave the country and simply had to agree to whatever Castro suggested. Agreeing to whatever terms Castro supplied represented Ruiz’s only chance for KMRC’s return to the United States. Ruiz never abandoned the United States as KMRC’s country of habitual residence. But shared parental intent is not the only way a child can acquire a new habitual residence. At some point, a child obtains a new habitual residence if “the objective facts point unequivocally to a person’s ordinary or habitual residence being in a particular place.”  Courts look to a child’s acclimatization to a new country and to all the facts of the particular case in determining how deeply rooted the child’s ties are to the new country. Regarding KMRC’s acclimatization in Mexico from 2012 to 2016, other than a few isolated statements from Castro and her parents that KMRC was “happy” in Mexico, there was literally no evidence from Castro about how KMRC acclimated to Mexico. Ruiz, however, presented evidence that KMRC did not acclimatize to life in Mexico. The only credible evidence demonstrated KMRC never really acclimated to life in Mexico. The facts demonstrated that rather than acclimating to life in Mexico, KMRC instead developed PTSD and never felt entirely safe there.  Castro failed to establish that Mexico was KMRC’s habitual residence in October 2015. Because KMRC’s habitual residence remained the United States, Castro’s petition for return was denied.

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