Avendano v Smith, --- F.Supp.2d ----, 2011 WL 3702401 (D.N.M.) [Mexico] [Rights of Custody] [Patria potestas] [Grave Risk of Harm ] [Attorneys fees]

In Avendano v Smith, --- F.Supp.2d ----, 2011 WL 3702401 (D.N.M.) Quesada was from Costa Rica and K. Stoner was born in the United States. Quesada and K. Stoner were married on June 5, 1993 in State College, Pennsylvania. Quesada and K. Stoner moved to Mexico together in 1998. Both Quesada and K. Stoner held permanent positions as professors at the National Autonomous University of Mexico since 1998; K. Stoner no longer held her position at the National Autonomous University of Mexico. Quesada and K. Stoner were the parents of two minor children: Alejandra Quesada Stoner ("A.S.’), born September 29, 2000, in Puerto Vallarta, Jalisco, Mexico; and Victoria Quesada Stoner ("V.S.") , born November 16, 2004, in Morelia, Michocan, Mexico. A. S. and V. S. were American citizens born in a foreign country; Quesada and K. Stoner thought it would be good for them to have dual citizenship. A. S. was now ten years old, and V. S. was six years old. Since their marriage and the birth of their children, Quesada and K. Stoner maintained a home in common wherein they carried out their parental responsibilities towards the children. In the last five years, A. S. and V. S. lived with Quesada and K. Stoner at the family's home at Calle de las Vientas 120, Fraccionamianto Country Club Campestra La Huerta, Morelia, Michoacan, Mexico. Quesada lived with his children all of their lives. Before K. Stoner took the children to the United States, the children went to school in Mexico, and were settled and integrated in Mexico's life and culture.

From August 2008 through August 2009, A. S. and V. S. lived in Los Angeles, California, and attended school while K. Stoner was on sabbatical. K. Stoner and the children lived in Los Angeles alone for several months until Quesada joined them. Quesada's personality changed over the past ten years, and his personality had become worse lately when he was intoxicated. Quesada consumed alcohol to excess at times when he was not working, but when he was with the family. The alcohol was neither a habit nor extreme, but was a concern. Quesada had been abusive towards K. Stoner, especially when he was intoxicated.. Around Easter, in 2008, Quesada, K. Stoner, and the children went on a family vacation to Costa Rica with several members of Quesada's family. Quesada, K. Stoner, the children, and Quesada's family slept in a room together. Late one night, Quesada came back to the room intoxicated. He grabbed K. Stoner's wrists and raped her.K. Stoner was afraid of waking the children, so she did not scream or call out. On December 24, 2009, the family was staying at Quesada's mother's house in Costa Rica. On one occassion K. Stoner tried to calm Quesada's brother down, and Quesada told her "shut up bitch" and hit her. Quesada never harmed his children.

K. Stoner left Mexico with A. S. and V. S. on July 13, 2010, with Quesada's permission.. The plan was that the children were going to be returned to Mexico on August 3, 2010 after their vacation at K. Stoner's parents' house in Las Cruces. K. Stoner and the children were scheduled to return to Mexico on August 3, 2010, and the children were scheduled to start school again in Morelia on August 23, 2010. The children never came back to Mexico; K. Stoner returned to Mexico in early August when Quesada was in the United States for work, and took several household items and the car, which she drove from Mexico to New Mexico without telling Quesada anything. K. Stoner admitted that she deceived Quesada to get herself, and A. S. and V. S. out of Mexico in what she thought was a legal way. K. Stoner left Mexico with the children to travel to the United States and planned to allege that she was fleeing from the abusive behavior.

The District Court found that K. Stoner did not leave Mexico with the children because of abusive behavior; she left because she wanted custody of the children and because she was not securing the custody through divorce negotiations. It also found that Quesada did not acquiesce in K. Stoner's removal of A. S. and V. S. from his custody. At no time did Quesada agree to K. Stoner retaining the children in the United States.. A. S. and V. S. had now successfully completed a year of schooling at Mesilla Valley Christian School. The children were well acclimated to the United States, and they enjoyed it. In September, 2010, Quesada filed a Mexican Petition Under the Hague Convention, asking the Mexico Secretary of State under the Hague Convention to contact the United States Secretary of State. Quesada filed a petition for divorce in Mexico in April, 2011. There was no custody order from any court that has awarded custody of the children to either parent. K. Stoner filed a case seeking a divorce, child support, and child custody in Dona Ana County, State of New Mexico.

On June 23, 2011, Quesada filed a Verified Petition for Return of Children to Petitioner. At the hearing on August 2, 2011, both Quesada and K. Stoner testified. They did not present any other witnesses. The children were present outside of the courtroom, but did not testify.

The District Court granted the Petition. It observed that the Civil Code for the State of Michoacan states: Parental authority/responsibility (patria potestas ) over the children will be exerted: I. By the father and mother. II. By the paternal grandfather and  grandmother or by the maternal grandfather and grandmother, indistinctly, considering those with whom the children will have a better moral, educational, social, economical and family development. ... As long as the child is under parental authority/responsibility (patria potestas ), he or she shall not leave the residence of those who exert it without their permission or by order emitted by an authority legally qualified to do so. Michoacan Civil Code ss 367, 373. It observed that the Federal Civil Code states: Paternal uthority/responsibility (patria potestas ) is to be exerted over the children themselves as well as over their assets. Regarding the care and education of the minors, parental authority/responsibility (patria potestas ) is to be exerted in the manner prescribed by the order pronounced by the judge and in accordance with the Law of Social Prevision of Juvenile Delinquency of the Federal District (Distrito Federal ). .... Parental authority/responsibility (patria potestas ) is exerted by both parents.

When due to any circumstance one of them ceases to exert it, it shall be exerted by the other one. .... As long as the child is under parental authority/responsibility (patria potestas ), he or she shall not leave the house of those who exert it without their permission or by means of an order emitted by an authority legally qualified to do so. 18 Federal Civil Code art. 413, 414, 421.

The Court held that Quesada had established by a preponderance of evidence that the children have been wrongfully removed or retained. A. S. and V. S. were physically present in Mexico "for an amount of time sufficient for acclimatization and which has a 'degree of settled purpose' from a child's perspective," Feder v. Evans-Feder, 63 F.3d 217, 224 (3d Cir.1995), because they were born in Mexico and, because, before their removal to the United States, they lived in Mexico and went to school there, except for a year that they spent in Los Angeles when their mother was on sabbatical. Quesada's and K. Stoner's shared intentions regarding their children during the time preceding the abduction reflected an intention to stay in Mexico, because Quesada and K. Stoner owned a house in Mexico, because they were professors at a university in Mexico, and because the children were registered to begin school in Mexico in August, 2010. Because it appeared Quesada had rights of custody under Mexico law, and because K. Stoner did not have the right to remove the children, K. Stoner's removal of the children from Mexico, and retention of the children in the United  States, was in breach of Quesada's custody rights under the laws of Mexico. Although Quesada did not give K. Stoner money for supporting the children since January, 2010, he paid the mortgage of their home where he, K. Stoner, and  the children lived, and throughout the children's lives Quesada and K. Stoner had provided for the children's food, shelter, and education. The District Court found that Quesada was exercising his rights to custody at the time K. Stoner removed the children to the United States, and retained them in the United States, because  he and K. Stoner lived with the children, because he participated in the children's lives, and because he helped to provide the children with food, shelter, and education. See Friedrich v. Friedrich, 78 F.3d at 1066 ("We ... hold that, if a person has valid custody rights to a child under the law of the country of the child's habitual residence, that person cannot fail to 'exercise' those custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child.").

The District Court found that although K. Stoner argued that Quesada acquiesced or consented in the removal of the children, because he legally abandoned the children by his failure to financially support them, K. Stoner had not directed the Court's attention to authority which states that a person can acquiesce or consent to removal through abandonment. All the cases that the Court found which discuss abandonment related to whether the petitioner exercised his or her rights to custody. Quesada did not consent to the removal or retention under the convention,  because although he consented to the children going on a trip to the United  States, he did not consent to the children staying in the United States. It also found that K. Stoner has not proved by clear and convincing evidence that there was a grave risk that the children will be put in an intolerable situation, or will be subject to physical or psychological harm, if they are returned to Mexico. K. Stoner had not proved by clear and convincing evidence that Quesada's drinking or abuse of her would create a grave risk that the children would be put in an intolerable situation, or would be subject to physical or psychological harm, if they are returned to Mexico. Because there is no evidence that Quesada had abused his children, and because, although Quesada can, at times, drink to excess, he was not an alcoholic and there was no evidence he had been abusive towards his children when he was drinking, there was not clear and convincing evidence that the children would be put in an intolerable situation, or subject to psychological or physical harm, if they were returned to Mexico. Although there was evidence that Quesada raped and abused K. Stoner, "any instances of physical abuse by Petitioner were limited incidents aimed at persons other than the child[ren] at issue, and thus are not sufficient to support application of the 'grave risk' exception."

The Court ordered K. Stoner to "pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, ... and transportation costs related to the return of the child." 42 U.S.C. s 11607(b)(3). To determine attorneys' fees, the Court multiplied "the number of reasonable hours expended by a reasonable hourly rate." Neves v. Neves, 637 F.Supp.2d 322, 339-40 (W.D.N.C.2009)("In determining the amount of reasonable attorney's fees to award under ICARA, federal courts typically apply the lodestar method. Under the lodestar method, the Court multiplies the number of reasonable hours expended by a reasonable hourly rate." (citing Wasniewski v.. Grzelak-Johannsen, 549 F.Supp.2d 965, 971 n. 5 (N.D.Ohio 2008); Distler v. Distler, 26 F.Supp.2d 723, 727 (D.N.J.1998); Freier v. Freier, 985 F.Supp. 710, 712 (E.D.Mich.1997); Berendsen v Nichols, 938 F.Supp. 737, 738 (D.Kan.1996); Flynn v. Borders, No. 5:06-323-JMH, 2007 WL 862548, at *2 (E.D.Ky. Mar. 20, 2007); Friedrich v. Thompson, No. 1:99-CV-772, 1999 WL 33951234, at *3 (M.D.N.C. Nov. 26, 1999)). Quesada filed an affidavit for attorneys' fees and costs. Quesada's attorney, Shane English, represented that his hourly rate was $160.00 per hour until May 31, 2010 and $180.00 per hour thereafter. The Court found that this hourly rate was reasonable for federal court practice in the District of New Mexico. The Court ordered K. Stoner to pay Quesada's attorneys' fees and costs of $14,5 81.72, and transportation costs related to the return of the children.