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Friday, May 26, 2023

Recent Hague Convention District Court Cases - Sanchez v Peralta-Rangel, 2021 WL 984814 (E.D. North Carolina, 2021)

 

[Mexico][Habitual residence][Petition granted]


    In Sanchez v Peralta-Rangel, 2021 WL 984814 (E.D. North Carolina, 2021) the Court granted the Petition of Norma Edith Rodriguez Sanchez. Rodriguez Sanchez has lived in the City of Madero, Mexico at the same address since 2010. Respondent Justino Fausto Peralta-Rangel is a citizen of Mexico who currently resided in Angier, North Carolina. A.P.R. was born on May 11, 2008, in Raleigh, North Carolina, and is the biological daughter of Rodriguez Sanchez and Peralta-Rangel. A.P.R. is 12 years old. The parties were never married. They met while living in North Carolina, and A.P.R. is their sole child. In early 2010, Rodriguez Sanchez and A.P.R. returned to Mexico to stay with her family. Rodriguez Sanchez was not legally in the United States and was not able to return to North Carolina. The relationship between Rodriguez Sanchez and Peralta-Rangel ended shortly after she and A.P.R. returned to Mexico. A.P.R. has lived nearly her entire life in Madero, Tamaulipas, Mexico, with Rodriguez Sanchez. Between 2010 and December 18, 2018, Rodriguez Sanchez and A.P.R. resided in Madero, Tamaulipas, Mexico. Since A.P.R.’s birth, Peralta-Rangel only returned to Mexico in June 2015. During this one visit, Peralta-Rangel briefly saw A.P.R. During A.P.R.’s life in Mexico, Peralta-Rangel did not provide support in the form of clothing, money, or anything else. Rodriguez Sanchez never relied on Peralta-Rangel to meet A.P.R.’s basic needs. Rodriguez Sanchez reared A.P.R. in Mexico from infancy. Rodriguez Sanchez ensured A.P.R.’s health care and educational needs, and made all day-to-day decisions with little to no input from Peralta-Rangel. A.P.R. is a citizen of both Mexico and the United States. No court in either country has ever entered an order regarding the custodial rights of the parties in either country. A.P.R. attended school in Madero, Tamaulipas, Mexico through the first semester of fifth grade. A.P.R. is fluent in Spanish. In 2018, Rodriguez Sanchez and Rodriguez Sanchez’s sister, Alejandra Rodriguez Sanchez (“Alejandra”), discussed sending A.P.R. to Benson, North Carolina, to visit Alejandra’s family and attend one semester of school to learn English. In October 2018, Rodriguez Sanchez contacted Peralta-Rangel and asked Peralta-Rangel to complete a form allowing A.P.R. to renew her United States passport. Peralta-Rangel completed the form, but did not participate in the plans for A.P.R.’s visit. In December 2018, Rodriguez Sanchez’s niece, Cindy Garcia Rodriguez (“Cindy”), flew to Tamaulipas to visit family and escort A.P.R. to Benson, North Carolina, to stay with Alejandra. On December 18, 2018, Cindy and A.P.R. arrived in the United States. A.P.R. drove with Cindy directly to Alejandra’s home that evening, where A.P.R. remained for the next five months. *2 On January 3, 2019, A.P.R. was enrolled for a semester at Benson Middle School as Rodriguez Sanchez planned. Benson Middle School is in the school district that encompassed Alejandra’s address. Cindy was listed as the emergency contact, along with Alejandra Rodriguez, Adrian Rivera, and Maria Rodriguez. Peralta-Rangel was listed as the fifth contact on the emergency contact form. Shortly after A.P.R.’s arrival, Peralta-Rangel appeared at Alejandra’s door unannounced asking to see A.P.R. For approximately two months, Peralta-Rangel visited A.P.R. weekly. A.P.R. was not comfortable going anywhere alone with him. The visits ceased in approximately mid-February 2019. While A.P.R. was in the United States, Rodriguez Sanchez remained in constant contact with A.P.R., texting and calling almost every day. At no time did Rodriguez Sanchez abandon or act as though she abandoned A.P.R. In mid-February 2019, A.P.R. expressed homesickness and asked Rodriguez Sanchez if she could return to Mexico sooner than planned. At the time, Alejandra and Rodriguez Sanchez could not afford the return tickets, and they asked A.P.R. to be patient

 

    On May 10, 2019, after nearly three months without contact, Peralta-Rangel arrived at A.P.R.’s school and demanded that she be released into his care. Benson Middle School administrators contacted Cindy and Alejandra about Peralta-Rangel’s demand and asked that they come to the school. Cindy immediately went to Benson Middle School. When Cindy arrived, she found A.P.R., who was very upset. The principal told Cindy that the school had to release A.P.R. to Peralta-Rangel because he was her father. Cindy contacted Rodriguez Sanchez via videophone and was able to speak to A.P.R. during the incident. A.P.R. asked not to be released to her father, but the principal did so on May 10, 2019. That was the last day that A.P.R. stayed with Alejandra and Cindy as Rodriguez Sanchez had planned.

 

    Peralta-Rangel never returned A.P.R. to Alejandra’s care or retrieved A.P.R.’s belongings from Alejandra’s home. A.P.R. came to the United States to visit Rodriguez Sanchez’s family, stayed with Rodriguez Sanchez’s family, was enrolled in school by Rodriguez Sanchez’s family and in the family’s school district, and was scheduled to return to Mexico at the end of the semester. Rodriguez Sanchez maintained her custody rights under the doctrine of patria potestas and actively exercised her custody rights of A.P.R. from the time A.P.R. arrived in the United States until Peralta-Rangel wrongfully retained A.P.R. on May 10, 2019. Rodriguez Sanchez never consented to Peralta-Rangel withholding A.P.R.

 

    On May 16, 2019, Rodriguez Sanchez filed a Hague Application for the return of A.P.R.

 

    Rodriguez Sanchez never acquiesced to A.P.R. remaining with Peralta-Rangel in the United States.  Rodriguez Sanchez never consented to Peralta-Rangel’s retention of A.P.R. or acquiesced in the retention. Rodriguez Sanchez filed her Hague Application within days of the retention, signed a power of attorney naming her niece, Cindy Rodriguez, and consulted with lawyers in both the United States and Mexico. On May 8, 2020, Rodriguez Sanchez filed her Hague Petition for the Return of A.P.R., which is within one year of A.P.R.’s wrongful retention. When Rodriguez Sanchez filed this action and at all times throughout this proceeding, A.P.R. resided with the Peralta-Rangel in Angier, North Carolina. Angier is within the jurisdiction of the United States District Court of the Eastern District of North Carolina.

 

    The Court found petitioner established a prima facie case.  Based on the evidence presented and crediting Rodriguez Sanchez’s testimony about how and where she reared A.P.R., A.P.R.’s habitual residence was Mexico. Rodriguez Sanchez had a right to custody under the laws of the contracting state. Patria potestas rights are “rights of custody” as defined by the Convention and ICARA. Both parents retain joint custodial rights to A.P.R., and it was Peralta-Rangel’s affirmative action in retaining A.P.R. that hampered Rodriguez Sanchez’s joint custodial rights under the Civil Code for the State of Tamaulipas, Mexico. Under the Civil Code of the State of Tamaulipas, Mexico, Rodriguez Sanchez maintained her rights of custody over A.P.R. while A.P.R. was visiting with family in the United States. Rodriguez Sanchez was actually exercising her custodial rights when A.P.R. was wrongfully retained. “A parent who sends his or her child to live with a caretaker has not relinquished custody rights but rather has exercised them.”. A parent exercises custodial rights “whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child.” Bader, 484 F.3d at 671. Rodriguez Sanchez maintained daily contact with A.P.R. until May 10, 2019, when the wrongful retention occurred. Even after the wrongful retention, Rodriguez Sanchez continued to contact A.P.R. daily, even when A.P.R. was

 

    In his response, Peralta-Rangel asserted the following affirmative defenses: (1) Rodriguez Sanchez was not actually exercising her custody rights of A.P.R. at the time of the retention; (2) Rodriguez Sanchez consented to the retention or acquiesced in the retention; (3) Rodriguez Sanchez failed to file the petition within one year of the retention and A.P.R. is now well settled, and (4) A.P.R. will suffer physical or psychological harm or otherwise be in an intolerable situation if returned to Mexico. Peralta-Rangel presented no evidence to support these defenses. Thus, they fail. Alternatively, the defenses fail on the evidence presented.

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