In Lopez v Villareal, 2012 WL 458490 (D.Nev.)) Jorge Ramon Guadalupe Rivera Lopez, has filed a verified petition pursuant to the Hague Convention and respondent, Janet Nieri Villareal, aka Janet Patchett, moved to dismiss or stay this action. Jorge and Janet married in Mexico in April 2003. A son was born to the couple in November 2003. Jorge and Janet divorced, in Mexico, in August 2009. Janet was awarded physical custody of their son. Jorge was granted the right to visit and spend time with their son on any day of the week. Jorge could take their son outside the city only with the prior written consent of Janet. Janet was required only to inform Jorge when she intended to take their son outside of the city, informing him of the city, address, and specific time that would be spent outside of the city. Until late-December 2009, Jorge, Janet, and their son continued to reside in Mexico. In December, Jorge consented to Janet traveling with their son to the United States. Janet and their son entered the United States on December 26, 2009. By January 15, 2010, Janet informed Jorge that she would not be returning to Mexico. Jorge alleged that he did not consent to their son remaining in the United States after January 15, 2010. On December 15, 2011, Jorge filed the present petition pursuant to the Hague Convention and the International Child Abduction Remedies Act, seeking the return of their son to Mexico.
Janet's response to Jorge's petition raised a single argument-consent or acquiescence under Article 13-that rests solely upon the allegations of the petition. She argued that, pursuant to those allegations, Jorge could not obtain the relief requested as a matter of law. She pointed to Jorge's admission that in December 2009 he consented to her travel to the United States with their son and his concession that he was aware in January 2010 that she would not be returning to Mexico. She further noted that Jorge did not file the present petition until December 2011. Janet argues that Jorge consented to their son's travel to the United States. She further argued that Jorge's knowledge that Janet would not be returning to Mexico with their son, and his lack of action in attempting to obtain the return of their son establishes that he acquiesced to Janet's retention of their son in the United States.
The Court disagreed that Jorge alleged facts establishing that he consented and acquiesced to Janet's retention of their son in the United States. He alleged facts indicating that he consented to Janet traveling to the United States with their son. Absent from the petition, however, was any allegation suggesting that Jorge's consent was for Janet to travel to and remain in the United States, and indefinitely retain their son in the United States. Rather, Jorge alleged in the petition that Janet
indicated that the purpose of the travel was for Janet to visit her sister, and that Janet intended to return to Mexico with their son by January 7, 2010. Jorge did not allege that he consented to Janet retaining their son in the United States after January 15, 2010.
Jorge's admission that he knew Janet was retaining their son in the United States in January 2010, and his filing of the petition in December 2011, did not establish as a matter of law that he acquiesced in Janet's retention of their son in the United States after January 2010. Janet did not direct the Court's attention to any authority suggesting that a delay of 23 months between obtaining knowledge of the wrongful retention and the filing of a Hague petition establishes, as a matter of law, acquiescence in the wrongful retention. This is particularly true where, as here, Jorge alleged that subsequent to Janet's wrongful retention of their son he has sought the assistance of the Central Authority of Mexico, the Mexican Courts, the United States State Department, and local law enforcement officials in Las Vegas in obtaining the return of their son to Mexico. Accordingly, as Jorge had not alleged facts establishing, as a matter of law, that he either consented or acquiesced to Janet's retention of their son in the United States after January 15, 2010, the Court denied the motion to dismiss Jorge's petition.
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