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Tuesday, December 20, 2022

Recent Hague Convention District Court Cases - Esparza v Nares, 2022 WL 17724414 ( S.D. Texas, 2022)

 

[Mexico] [Age and Maturity exception] [Petition granted]

In Esparza v Nares, 2022 WL 17724414 ( S.D. Texas, 2022) the District Court granted the petition for the return of the two minor children to Mexico. Petitioner and Respondent were Mexican. During their marriage, Esparza and Nares had two children: M.G.R.D. and V.N.R.D. The Children were both Mexican citizens, having been born in Nuevo Leon, Mexico. They resided there for the majority of their lives. In April  2021, Esparza and Nares divorced. As part of their divorce, the parties, entered into a divorce decree, that governs the legal custody arrangement of the Children. Under the decree, that was agreed to by both sides, the parents maintained joint legal custody of the Children. Pursuant to that decree, Esparza was permitted to see and live with his daughters from 11:00 a.m. to 8:00 p.m. on Saturdays and from 2:00 p.m. to 9:00 p.m. on Wednesdays. At all other times, the Children remained with Nares. The divorce agreement also specified how the parents were to travel with the Children. Under that agreement, each parent was allowed to travel with the Children, but travel was limited to 15 days per trip and the parties were required to inform one another about the trips. In May 2022, Nares, without permission or prior notice to Esparza, left Nueva Leon and brought the two Children to Texas. The Children remained in Texas ever since. The only issue for the Court to decide was whether the Hague Convention’s Article 13 age and maturity exception applied. It states, “[t]he judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.” Hague International Child Abduction Convention; 51 Fed. Reg.at 10494-01, Art. 13. The party opposing the child’s return must establish the child’s maturity by a preponderance of the evidence. England v. England, 234 F.3d 268, 272 (5th Cir. 2000). “[W]hether a child is of sufficient age and maturity is a fact-intensive process,” and the Fifth Circuit has “declined to hold, as a matter of law, that any particular age is sufficient of insufficient to meet the defense.” Dietz v. Dietz, 349 F. App’x 930, 934 (5th Cir. 2009). The  age and maturity exception is to be applied narrowly. The two Children here were  eleven and six years old. Neither speaks English; consequently, the Court’s interpreter translated. The girls were interviewed separately so the Court could evaluate them separately. During their respective interviews, both kept their eye cast downwards and spoke in a quiet manner. Both Children only spoke a couple of words at a time. For the most part, they were unable to explain their answers, often sticking to yes, no, I don’t know or one word answers. The case shared similarities with Dietz v. Dietz. In the Dietz case, the court held a 13-year-old was not mature under the Hague Convention. Dietz, 349 F. App’x at 934. The court noted that he was “highly defensive,... he spoke in a short and cut manner in a low monotone and kept his eyes cast downward.” The court also pointed to the report of a child psychologist who examined the boy and determine despite showing high average to superior intelligence, he displayed only average verbal skills, and performed poorly in school. Id. Also in that case, the Court did not credit 9-year-old Angus’s preference because it found that his views were “unduly influenced by his father.” The Court acknowledged that both Children voiced a preference for remaining in Texas with their mother, but this testimony, even when one gives due consideration to the circumstances surrounding the questioning, was not sufficient to prove by a preponderance of the evidence that the Children were mature enough for the Court to appropriately take into account their views under the age and maturity exception. Rodriguez v. Yanez, 817 F.3d 466, 476 (5th Cir. 2016) (requiring an “[o]bject[tion] not a mere preference.”). In so holding, this Court considered their answers, but also their demeanor, their attention to what was being asked, and the manner of their responses. The totality of the evidence made it clear that neither girl demonstrated the age and maturity necessary for the Court to take their views into account. Since the Court found the Children were not of sufficient age and maturity, and ordered the two minor children be returned to Nuevo Leon, Mexico.

 

 

 

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