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Saturday, December 15, 2012

Rovirosa v. Paetau, 2012 WL 6087481 (S.D.Tex.) [Mexico] [Patria Postestas]

In Rovirosa v. Paetau, 2012 WL 6087481 (S.D.Tex.) Petitioner, Leandro Ampudia Rovirosa ("Ampudia"), brought an action seeking the return of his son, L.A.V., and daughter, M.A.V., to Mexico from the United States. Ampudia and Vieth were the natural parents of L.A.V. and M.A.V. and were both citizens of Mexico. Vieth had permanent resident alien status in the United States since 1980. L.A.V. was born in August 2005 in Mexico City and had permanent resident alien status in the United States based on Vieth's U.S. immigration status. L.A.V. had a U.S. social security number and a Texas identification card. . M.A.V. was born in June 2007 in Mexico City and had permanent resident alien status in the United States based on Vieth's U.S. immigration status. M.A.V. ha a U.S. social security number and a Texas identification card. Both L.A.V. and M.A.V. possessed only Mexican passports. Ampudia and Vieth lived with their children in a rented home on Contreras Street in Mexico City beginning in 2009. The children attended the Alexander Bain Institute in 2009, 2010, and a portion of 2011. They were driven to this school by a chauffeur employed by Ampudia's employer.

From May 10, 2010, to June 11, 2010, Ampudia received voluntary inpatient treatment for a gambling addiction. Ampudia testified that he no longer gambled as a result of this treatment. After Ampudia's release from the rehabilitation facility, the relationship between the parties deteriorated, and they began to discuss a separation.. On December 18, 2010, Vieth and the children went to Acapulco to visit her family for the Christmas holidays. Vieth, assisted by her friend, Celia Tello, packed up clothing and toys at the Contreras Street residence in preparation for her move to Houston to live with a friend. Vieth and her children drove with Tello and Tello's family to Acapulco with the clothing and toys. Vieth and the children flew from Acapulco to Houston, Texas, on December 26, 2010, and lived with Blomfield and his family until January 14, 2011. Between late December 2010 and early January 2011, Ampudia moved into an apartment approximately twenty minutes away from the Contreras Street residence. Ampudia testified that he believed Vieth was taking the children to the United States to visit her mother in Chicago, but learned that they went to Houston instead. Ampudia was aware that Vieth and his children had stayed with Blomfield when in Houston after the Christmas holidays. Vieth and the children returned to Mexico City on January 14, 2011. Vieth testified that although she considered Blomfield's home in Houston to be her and the children's permanent residence by that time, she returned to Mexico City to straighten out her and Ampudia's finances. According to Vieth, the rent on the Contreras Street residence was months in arrears and the utilities were also past due. She attributed the fault of the non-payments to Ampudia.

In February 2010, Vieth moved into Tello's residence, where Vieth and her children shared a bedroom vacated by Tello's two-year-old daughter. Tello averred that Vieth and the children lived with her through May 2011, when Vieth returned to Houston. Ampudia testified that Vieth and the children continued to reside at the Contreras Street address until June 1, 2011. On May 3, 2011, Vieth filed a petition in the 27th Family Court, Mexico City, D.F., to terminate Ampudia's parental rights on the ground that he had abandoned the children due to non-support. In the petition, she claimed that she had borrowed in excess of $633,000 pesos to support the children after he failed to do so. She also claimed in the petition that he had borrowed in excess of $7,000,000 pesos from her and owed $10,000,000 pesos in gambling debts. She sought $176,828 pesos in monthly support. The Mexican petition claimed expenses for the children's activities in Mexico City during the first quarter of 2011. The petition also avered that Vieth paid rent, maintenance fees and water expenses at the Contreras Street residence through May 2011 by using funds she borrowed. Emma Rovirosa testified that she paid these expenses for the same period of time on behalf of her son, Ampudia.

Ampudia's legal expert, David Lopez testified that, in his opinion, Ampudia, as the natural father of the children, had a right of custody, known as patria potestad, under Mexican law. Ampudia and Vieth lived together as a couple and acted as parents to the children. Cohabitation with a child is a parental right under Mexican law and, even after Ampudia ceased to cohabit with the children, he exercised parental rights by paying for their schooling, visiting the children at school or sporting events and having lunch with them. Lopez testified that the fact that Vieth filed a lawsuit to terminate Ampudia's parental rights was an admission by Vieth that Ampudia had rights to be terminated. And Ampudia's filing a response to Vieth's lawsuit was an assertion of his objection to the termination of his parental rights. Lopez acknowledged that patria potestad may be lost by a failure to pay child support for more than ninety days, but that determination had not been made by the Mexican court and, until that court determined that Ampudia abandoned the children, Ampudia had the presumption of having custodial rights. Lopez opined that Ampudia has rights of custody for purposes of the Hague Convention.

Ampudia testified that, until June 2011, he visited the children once a week, took them to lunch or for ice cream, and attended their school and sporting events.L.A.V. and M.A.V. attended the Alexander Bain Institute from January 2011 to May 2011. On May 23, 2011, Vieth committed in writing to pay the past-due tuition at the Alexander Bain Institute for the months of January 2011 to May 2011 by July 4, 2011. The sum was deducted from Ampudia's salary. On May 20, 2011, M.A.V. and L.A.V. were seen by their pediatrician in Mexico City. Vieth testified that another reason for her return to Mexico City with the children in January 2011 was to renew the passport of M.A.V., which would expire in April 2011. Ampudia's signature was required by law to renew the passport, and, according to Vieth, he delayed complying with her requests to renew the passport for months. On May 31, 2011, Ampudia and Vieth went to the passport office and signed documents renewing M.A.V.'s passport. Ampudia, Vieth and the children had lunch at Ampudia's apartment that same day. Vieth testified that she told Ampudia on May 31, 2011, that she had filed the lawsuit to terminate his parental rights. Vieth conceded that she did not tell Ampudia that she and the children were flying to Houston the following day. On May 31, 2011, Ampudia applied for a passport for himself, replacing one that had been lost. Vieth produced this lost passport, along with his U.S. visa, in discovery in this action, leading Ampudia to conclude that Vieth had retained his passport and visa to prevent him from traveling to the United States in pursuit of her and the children. Vieth denied taking Ampudia's passport but had no credible explanation for its discovery in her possession.

On June 1, 2011, Vieth purchased airline tickets for herself and the children to travel from Mexico City to Houston, Texas, later that same day. The children ha continuously resided in Houston, Texas, since June 1, 2011. Ampudia was served with Vieth's lawsuit to terminate his parental rights on June 10, 2011. He filed his answer and countersuit for visitation rights on June 29, 2011. That case was being actively litigated in Mexico City. Ampudia testified that he was unaware of where his children were after June 1, 2011. Ampudia concluded that Vieth and the children were in the United States because the automatic voice mail message on Vieth's phone was in English. Ampudia asserted that Vieth never answered his calls or voice mails, and the first time he learned that Vieth and the children were in Houston, Texas, was when Blomfield phoned him on August 18, 2011. Blomfield averred that while he was certain that Ampudia knew that Blomfield lived in Houston, he could not say that Ampudia knew exactly where he lived. Contradicting Ampudia's testimony in part, Vieth testified that Ampudia, along with his father and brother, spoke to M.A.V. on her birthday in June 2011 via Vieth's cell phone.. M.A.V. and L.A.V. attended summer camps in Houston, Texas, during the summer of 2011. M.A.V. and L.A.V. attended The School at St. George Place, a public elementary school in Houston, for the 2011-2012 academic year. Ampudia's parents traveled to Houston, Texas, several times to visit the children.

Their first visit was in September 2011. Because Vieth had Ampudia's U.S. visa in her
possession when she traveled to Houston in June 2011, Ampudia could not travel to the United States until he obtained a replacement visa, which he was not able to do until January 2012. In April 2012, Ampudia traveled to Houston to see the children.

The children were presently enrolled in The School at St. George Place for the
2012-2013 academic year. Since October 2012, Vieth worked in Mexico several
days a week. In her absence, the children were cared for by Blomfield, his wife, and a
family member of Vieth.

In support of her claim of abandonment, Vieth testified that eight months passed before Ampudia paid any child support, that he failed to help with the children, failed to take them to school and did not feed or clothe them. The district court held that this was a claim reserved for the Mexican court. Vieth testified that she was a public figure in Mexico because of her employment as an actress. She believed that her children might be kidnapped because of Ampudia's gambling debts. Vieth also feared that the children may be harmed in an earthquake or fire. She acknowledged that her fears of kidnapping did not prevent her from returning from Houston with the children in January 2011. Vieth also conceded that she made several personal appearances at public events with the children but felt safe because of the security provided by the sponsors of the events.

The district court found that Ampudia had established by a prima facie case preponderance of the evidence that, under the laws of Mexico, he had rights of custody over L.A.V. and M.A.V. and that he was exercising his rights of custody over L.A.V. and M.A.V. at the time of the children's removal from Mexico by Vieth; that Mexico was L.A.V.'s and M.A.V.'s habitual residence before their removal from Mexico by Vieth; and that Vieth wrongfully removed L.A.V. and M.A.V. from their habitual residence in Mexico in violation of Ampudia's rights of custody over the children.

Given that Ampudia established by a preponderance of the evidence each of the elements required by the Hague Convention to show that Vieth wrongfully removed L.A.V. and M.A.V. from Mexico, and given that Vieth has failed to meet her burden that any of the exceptions apply to the facts of this case, the court ordered the return of L.A.V. and M.A.V. to Mexico, their habitual residence prior to their wrongful removal by Vieth.

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