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Sunday, July 29, 2012

Saldivar v Rodela, 2012 WL 2914833 (W.D.Tex.) [Mexico] [Habitual Residence] [Rights of custody] [Consent]

In Saldivar v Rodela, Slip Copy, 2012 WL 2914833 (W.D.Tex.) D.I.R.A. was the only child of Acosta and Rodela. Acosta was a Mexican citizen and held a United States permanent resident card. She lived most of her life in Ciudad Juarez, Chihuahua, Mexico. Rodela, who was an American citizen, grew up in Juarez, until he was twelve years old; he now lived in El Paso, Texas. Ciudad Juarez and El Paso are located next to each other on the border between the United States of America and the United States of Mexico.

In June 2002, Acosta and Rodela got married. Prior to their marriage, they lived in Juarez, but moved to the United States when they got married by the church in August that year. Following their marriage, they lived in El Paso for a few months and then moved back to Juarez around March 2003. In June 2004, D.I.R.A. was born at a hospital in El Paso, Texas. At the time of the child's birth, the parties were living in a rented home in Juarez. After his birth, Acosta, Rodela, and the child stayed in El Paso for a few days-not more than two months by Rodela's account-long enough to allow the mother to recuperate. Thereafter, Acosta and Rodela moved back to Juarez with the child. Once in Juarez, Acosta, Rodela, and D.I.R.A. lived in multiple rented homes, until sometime in 2007, when Rodela and Acosta purchased a house there. The house was located on a street across from and in front of the house of Maria del Rocio Acosta Saldivar, Petitioner's sister. The family lived together in the purchased house until October 2010, when Rodela and Acosta separated and he moved to El Paso. Since their separation, D.I.R.A. lived with his mother in that house until his removal to the United States in January 2012. Acosta continued to live there.

After the parties' separation in 2010 and prior to D.I.R.A.'s removal in January 2012, D.I.R.A. spent weekends with his father in El Paso. On occasion, the father visited the child in Juarez during weekdays after his school. During his school-break in summer 2011, D.I.R.A. stayed with his father in El Paso for three to four weeks. On August 10, 2011, Rodela filed a petition for divorce in the 388th Judicial District Court of Texas in El Paso. In his petition, he also sought sole custody of D.I.R.A. Acosta was not aware of this filing until sometime later. On Saturday, January 7, 2012, shortly before noon, Rodela arrived at the family's house in Juarez to take D.I.R.A. to El Paso. Acosta believed the child's trip to El Paso would be for that weekend only. She asked Rodela to return the child by 9:00 p.m. on Sunday, January 8, 2012, and Rodela agreed. The child picked up a few toys and his backpack, and left with the father. On January 8, when the child was not returned, Acosta called Rodela on his cellphone several times beginning at around 9:00 p.m., but her calls went unanswered. On the morning of January 9, she called Rodela again and asked him to return the child. Rodela instructed her to meet at the Ysleta-Zaragoza International Bridge for the purpose of returning D.I.R.A. When she arrived at the bridge on the Mexican side, she called Rodela on his cellphone, and he told her that he could not cross the bridge because he had lost his wallet and his ID. Explaining that it would not be safe for the child to cross over to the Mexican side by himself, Rodela instructed Acosta to cross the bridge to the American side to pick up the child. When she did as instructed, a process server approached her and served her with Rodela's petition for divorce. Neither Rodela nor D.I.R.A. met Acosta at the bridge; D.I.R.A. was not returned. D.I.R.A. now resided with his father at his paternal grandmother's home in El Paso.

On March 5, 2012, Acosta filed a petition under the Convention with the District Court. On March 28, 2012, Acosta filed a petition for divorce in the First Family Court of Bravos Judicial District in Juarez. In that petition, she also sought custody of the child. The District Court found that at the time of his removal, D.I.R.A. was enrolled in second grade at Colegio Latino Americano in Juarez and was mid-way through 2011-2012 academic year. Prior to that, he completed first grade and kindergarten, also in Juarez. Beginning January 9, 2012, he attended Lujan Chavez Elementary School in El Paso. At around the age of three, D.I.R.A. began to show signs of developmental and behavioral problems. He had difficulties with sustaining attention, following instructions, dealing with authority figures, and interacting with children of his age. The mother described that on occasion, he would refuse to go outside of home, would be found naked in the home, and would hit himself and cry. Between 2008 and 2010, he received therapy at a Chihuahua state facility, where twice a week he attended classes for children with special needs. With therapy, his condition improved, but in the recent years, following his parents' separation, it worsened.. During the parties' marriage and prior to their separation, Rodela held jobs in El Paso, though he lived in Juarez. During the same period, Acosta did not work. After their separation, she began to work in Juarez and continued to work there as of this date.

Acosta requested that D.I.R.A. be returned to Mexico because Rodela's retention of the child in the United States was wrongful under Article 3 of the Convention. The Court observed that in Mozes v Mozes, 239 F.3d 1067, the Ninth Circuit set out an elaborate approach for determining a child's habitual residence.. Under this approach, the focus of the inquiry is the parents', not the child's, subjective intention about the child's habitual residence. In applying that approach, a court must also inquire whether the child has lived in the country for "an appreciable period of time ... that is sufficient for acclimatization." D.I.R.A. lived essentially his entire life in Mexico. Although he was born at a hospital in El Paso, his parents were residing in Juarez for more than a year at the time of his birth. Following his birth, they stayed in El Paso for a few days and then returned to Juarez with the newborn. Since then, D.I.R.A. lived in Juarez until his removal in January 2012. There, he grew up surrounded by members of his extended family including his maternal grandmother, aunts, uncles, and eighteen cousins. With them, he developed a meaningful relationship. Acosta's sister (Rocio), who lived across from the child's house, cared for the child whenever Acosta had to run an errand. With his cousins, he celebrated holidays and birthdays. Moreover, in Juarez, he completed his kindergarten and first grade education, and at the time of his removal, he was enrolled in second grade. He also had friends with whom he played soccer after school. These facts led to the conclusion that D.I.R.A. was highly acclimatized and firmly rooted in Juarez. Rodela contended that when they translocated from the United States to Mexico in or around March 2003, they had a mutual intention that their stay in Mexico would last for a temporary period of time until they were financially able to buy a home in El Paso; the parties had lived in El Paso for six to eight months following their marriage. Acosta flatly denied that, stating that they moved to Mexico to live there for the long haul. Although the parties agreed that economic reasons motivated their move to Mexico (housing was cheaper in Juarez than in El Paso), Acosta testified that they had another reason for the move: Rodela, who grew up in Juarez until he was twelve years old, liked living there. Rodela's contention notwithstanding, subsequent events suggested that the parties adopted Juarez as their home. By late 2010, when the parties separated, they had lived together in Juarez for more than seven years. In 2007, they even bought a house in Juarez (the house appears to have been paid for in full at the time of its purchase), where the child and the parties lived. During this period, the only routine aspect of their daily lives that had a connection to the United States was Rodela's employment in El Paso. (In this part of the world, living on one side of the border and working on the other side is fairly commonplace.) Under these facts, even if the parties had a shared intention to someday return to the United States, they effectively abandoned their prior residence in that country and established a new one in Mexico. Rodela pointed out that Acosta obtained a U.S. resident alien card in 2009 and a Texas driver's license in 2010, which, according to him, indicated that they shared an intent to move back to El Paso. According to Acosta, she acquired the resident alien card as insurance against a possible eventuality. At best, the mother's acquisition of the resident alien card and the driver's license suggested that they were developing a tenuous plan to someday move to the United States and abandon their residence in Mexico. However, the parties never actually followed through with that plan. While the transformation of a child's habitual residence depends upon the settled intention of the parents, it cannot be accomplished "by wishful thinking alone." Mozes, 239 F.3d at 1078. It "requires an actual change in geography, as well as the passage of an appreciable amount of time." Koch v. Koch, 450 F.3d 703, 715 (7th Cir.2006). The Court found that the parties had no shared, settled intention about the child's habitual residence. Thus, to the extent that D.I.R.A. was highly acclimatized in Mexico, the Court concluded that Mexico was the country of his habitual residence immediately prior to his removal to the United States.

Acosta claimed that her "rights of custody" arose by operation of Chihuahua's civil law doctrine or institution of patria potestad, meaning parental rights or authority. At trial, Acosta submitted into evidence an affidavit by Mexican attorney Mariano Nunez Arreola, which explained some of the relevant Mexican laws.. Pursuant to Rule 44.1, Arreloa's affidavit was acceptable as proof of Mexican laws. The Court relied upon Arreola's affidavit and, when necessary, upon publically available, relevant materials on Mexican laws. The Court found that under the Mexican law, Acosta and D.I.R.A. were domiciled in Chihuahua at the time of his removal to the United States. Consequently, Mexico's choice of law rules directed that the Chihuahua Civil Code governed the determination of whether Acosta had "rights of custody" under the Convention.

The Court noted that the institution of patria potestad "regulates relations between parents and children until the latter reach the age at which they must fend for themselves." It is largely governed by the civil codes of Mexican states. Designed to protect the interest of children, patria potestad constitutes the "most comprehensive" right that a parent can exercise over the person and property of his or her minor children. As with the Federal Civil Code and the civil codes of other Mexican states, Chihuahua's Civil Code embodied the same concept of patria potestad comprising a bundle of correlative rights over a minor child. Chih. Civ.Code, tit. 8, ch. 1, art. 388 et seq. These rights are equally shared by the mother and the father. Id ., art. 391 (providing that parental authority over children shall be exercised by the father and mother). In case of separation, parents can "agree on the terms of their exercise of parental authority, particularly in regards to the custody and care of minors," and if the parents are unable to reach an agreement, a judge decides the parents' respective rights. Chih. Civ.Code, art. 393; Absent an agreement or a court ruling, the parents' rights and obligations under patria potestad continue during their separation. Chih. Civ.Code, art. 393; Following their separation in 2010, Acosta and Rodela had not reached a formal agreement as to their parental rights over D.I.R.A. Moreover, there has not been any court ruling regarding the allocation of their rights; nor has there been any court judgment that stripped of either parent's patria potestad over D.I.R. A. The Court t found that Acosta and Rodela continued to jointly and severally share all of the rights derived from the institution of patria potestad. Cf. Hague Convention, arts. 3(a)-(b) (recognizing that "rights of custody" may be held "jointly or alone"). Chihuahua's institution of patria potestad gave Acosta both "the right relating to the care of the person of the child" and "the right to determine the child's place of residence" as contemplated under Article 5(a) of the Convention. The Chihuahua Civil Code's provisions governing patria potestad expressly gave her the rights to live with the child, to provide physical care (guarda ) to the child, to educate the child, and to discipline the child. Chih. Civ.Code, arts. 390, 394, 399, 400, 402; Additionally, parents with patria potestad are required to raise their minor children correctly and to conduct themselves in a manner so as to set a good example for their children. Id. art. 400. These extensive rights are clearly the "right[s] relating to the care of the person of the child." Hague Convention, art. 5(a). Moreover, while the Chihuahua Civil Code gives a parent having patria potestad over a child the right to live with that child, it also places a reciprocal obligation on the child not to leave the home of that parent without her permission. Chih. Civ.Code, arts. 394, 398. See also Chih. Civ.Code, art. 32(1) (providing that an un-emancipated minor, like D.I.R.A., is deemed as legally domiciled with the person who exercises patria potestad over him). It followed therefore that Chihuahua's patria potestad gave Acosta, who was free to reside anywhere, the right to determine D.I.R.A.'s "place of residence"-be it an address in Mexico or the country of residence-and consequently the "right to determine the child's place of residence." Hague Convention, art. 5(a); Abbott, supra, 130 S.Ct. at 1991. That conclusion was further reinforced by the amendatory language of Article 398 of the Chihuahua Civil Code. Article 398 gives a parent the right to consent before her child can be removed or retained away from Mexico. Article 398 is therefore a ne exeat-plus provision. Under ne exeat, a civil law doctrine, a parent's consent is required before her child can be taken to another country. The Supreme Court has held that ne exeat rights are "rights of custody," reasoning that ne exeat gives a parent the right to determine his child's country of residence, and thereby the right to "determine the child's place of residence" as contemplated under Article 5(a) of the Convention. Abbott, 130 S.Ct. at 1990-91. Acosta's Article 398 right to consent gave her the right to determine D.I.R.A.'s country of residence, and thereby the right to "determine the child's place of residence."

Accordingly, the Court concluded that Acosta's rights pursuant to Chihuahua's institution of patria potestad were "rights of custody" under the Convention. The Court found that Rodela's retention of D.I.R.A. in the United States was in breach of Acosta's custody rights. Specifically, because Acosta did not consent to Rodela's retention of the child in the United States, his retention was in breach of Acosta's right to consent before D.I.R.A. could be retained away from Mexico, as provided under Article 398 of the Chihuahua Civil Code. His retention also breached Acosta's other rights under Chihuahua's patria potestad, such as her rights to live with the child and care for the child, as his retention precluded her from exercising those rights.

The court found that she was actually exercising her custody rights at the time of D.I.R.A.'s removal and retention. Courts in this country have construed the term broadly in order to avoid crossing the line into a consideration of the underlying custody dispute. Sealed Appellant, 394 F.3d at 344. Under the courts' liberal construction, a non-removing parent with rights of custody cannot fail to exercise those rights short of acts that constitute abandonment of the child. Id. at 345.The non-removing parent need only adduce "some preliminary evidence that he or she actually exercised custody of the child, for instance, took physical care of the child."

Having found that Acosta established a prima facie entitlement to the return remedy, the court pointed out that respondent asserted the defense of consent. A child may not be returned to his country of habitual residence if the removing party can show, by a preponderance of the evidence, that the non-removing party "had consented to ... the removal or retention." Hague Convention, art. 13(a); 42 U.S.C. s 11603(e) (2)(B)."The consent defense involves the petitioner's conduct prior to the contested removal or retention." Baxter v. Baxter, 423 F.3d 363, 371 (3d Cir.2005) (citations omitted). The consent inquiry turns on the subjective intent of the parent who is claimed to have consented. .Further, " 'each of the words and actions of a parent during the separation are not to be scrutinized for a possible waiver of custody rights.' " Simox v. Simox, 511 F.3d 594, 603 (6th Cir.2007).

Rodela testified that during the last week of December 2011, he met with Acosta in Juarez to discuss the child's schooling. At the meeting, he related to Acosta that he wanted the child to attend school in El Paso. He also testified that previously the parties had exchanged emails, wherein he explained that it would be too expensive to have the child reside in Mexico (thus be considered a resident of Mexico for purposes of tuition and fees) and attend school in El Paso; he suggested that the child should live with Rodela's mother in El Paso. The meeting and the emails show, according to Rodela, that Acosta agreed to let the child live and attend school in El Paso beginning January 2012. He further testified that he made arrangements for the child to live with Rodela's mother at her home in El Paso, and that a few days before D.I.RA.'s removal, Rodela moved into her home (previously he stayed with his uncle in El Paso). Thus, when he arrived at Acosta's house on January 7, 2012, Rodela maintained, he did not agree to return the child by the next day; he was there to pick up the child and relocate him to El Paso permanently. During her testimony, Acosta denied that she ever agreed to let the child live and attend school in El Paso.

The determination of this issue turned on who was more credible. To that end, the timing of and the surreptitious manner in which Rodela served process on Acosta undercut his credibility. On the morning of January 9, when the mother called him for the child's return, he instructed her to meet him at the Ysleta-Zaragoza International Bridge. According to his own testimony, they were going to discuss the child's schooling at the bridge, but he also gave Acosta specific instructions to cross the bridge so that she could be on the American side of the border (he testified that she was supposed to cross over the bridge). But what transpired next at the bridge was not a meeting for such a discussion, but a service of process on Acosta; neither Acosta nor D.I.R.A. was there to meet her. Accordingly, the Court found that at the time D.I.R.A. was removed to the United States, Acosta agreed only to let the child stay with Rodela until January 8, 2012, and that she did not consent to Rodela's retention of the child in the United States beyond that date.

At trial, Rodela alleged that Acosta subjected the child to physical and psychological abuse. He averred that, on several occasions, Acosta struck the child with a stick and a belt. At times, he further claimed, Acosta struck her hand to the child's head, face, and leg. He also asserted that Acosta yelled at the child. These conducts, according to Rodela, resulted in family violence under Texas law. At trial, Rodela introduced a demonstrative evidence of the stick: it is 1-1/2 feet long, 1-1/2 inches wide, and 1/4 inches thick, and weighs about two ounces. According to the testimony of Rocio, Petitioner's sister, Rodela used to bring those sticks to the parties' home because the child liked to play with them and use them as swords. Rodela testified that although he never saw any marks on D.I.R.A.'s body, the child suffered psychological harm. He related that the child "freezes"-presumably because of the psychological harm done to him by his mother. Acosta testified that she had one such stick. In her family, she explained, such sticks are known as "magic stick" or the "wisdom stick," and they are used to discipline children: swat a child with it once and she/he will be scared of it. In case of D.I.R.A, she would say in his presence "where is that stick?" or "I am going to look for the stick"; that, she said, would be enough to secure his obedience. She further testified that during the child's entire life, she struck him with the stick only on three occasions; and on each occasion, she struck him only once and only on his buttocks. She also testified that on one occasion, when the child was hitting the wall with a belt, she took the belt away from him and struck him with the belt. Other than these four occasions, she stated, she never hit the child. She vehemently denied Rodela's characterization that she abuses or hits the child as a matter of course. Acosta also introduced a deposition testimony by one Veronica S. Torres, who was a special education teacher at Centro de Atencion Multiple, a Chihuahua state facility in Juarez. It was there that the child received therapy for his developmental and behavioral problems between 2008 and 2010. Torres's testimony revealed that after D.I.R.A.'s removal, Rodela took the child to Torres, asking her to evaluate whether the child had been a victim of mistreatment. She testified that based on her evaluation, she observed no sign of any physical or psychological mistreatment. She further testified that over the course of her dealing with D.I.R.A. since 2008, she never observed any sign that the child might have been subjected to any aggression, mistreatment, or abuse. At trial Rodela presented no expert or opinion (other than his own) testimony in support of his allegations of physical and psychological harm, even though prior to trial, he filed a witness list, listing as witnesses, among others, a child protective representative and a licensed professional counselor, who allegedly treated the child for physical and emotional harm. The Court found that the evidence presented fails to meet the demanding burden for establishing an exception under Article 13(b) of the Convention. Accordingly, Rodela's defense on this ground failed and the court granted the petition for return to Mexico.

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