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Thursday, August 15, 2013

Berezowsky v. Ojeda, 2013 WL 150714 (S.D.Tex.) [Mexico] [Habitual Residence] [Rights of Custody] [Deposit Passport] [Petition Granted]

 In Berezowsky v. Ojeda, 2013 WL 150714 (S.D.Tex.) petitioner, Michelle Berezowsky Gomez and the respondent, Pablo Angel Rendon Ojeda, who were both Mexican nationals and never resided permanently in the United States, were the parents of a three-year old child, who was born in the United States on May 31, 2009. The district Court granted the Petition.

On December 11, 2009, the respondent filed a suit for acknowledgment of paternity in the 24th Family Court in Mexico City, Mexico. On February 17, 2010, the respondent filed a petition to adjudicate parentage in the 410th District Court of Montgomery County, Texas where the petitioner was living with the child. After a jury trial, the Texas state court entered an amended final order on October 21, 2011, establishing the petitioner and the respondent as "joint managing conservators" and awarding them joint parental rights. Although the Texas order gave the respondent the right to determine the residence of the child, it ordered that the "primary residence of the child be relocated and redistricted to" either one of three places in Mexico: (1) Delegacion Coyoacan, Distrito Federal; (2) Delegacion Tlaplan, Distrito Federal; and/or; (3) Cuernavaca, Morelos. The Texas order further required that each parent obtain the consent of the other before traveling outside of Mexico with the child. The Texas order reflected that the respondent's residence would be Cuernovaca, Morelos, in Mexico, and the petitioner's residence would be Mexico City, Mexico, after October 18, 2011. The respondent traveled to Mexico with the child on October 7, 2011, and the petitioner returned to Mexico on October 18, 2011.

Thereafter, inter alia, suit was also commenced and consolidated into the 24th Family Court of Mexico City where the petitioner was granted exclusive parental rights and rights of possession to the child. Because the outcomes of the proceedings proved unfavorable to the respondent, he unsuccessfully moved to dismiss the case in the 24th Family Court of Mexico City. Undeterred, the respondent filed suit in the 11th Family Court of Mexico in September of 2012 to enforce the orders of the Texas state court. Using fictitious names for himself and the petitioner and failing to mention the order of the 24th Family Court that had granted the petitioner exclusive parental rights, the respondent successfully secured an order permitting him to have immediate possession of the child. The order of the 11th Family Court purported to domesticate the orders of the Texas state court but there was no indication in the record that the respondent followed the proper procedure to do so. Moreover, the order of the 11th Family Court, which noted that it was an "emergency measure," did not explicitly terminate the petitioner's rights of custody and the respondent acknowledged during the hearing before this Court that he never filed a suit to terminate the petitioner's rights in Mexico. Based on the order of the 11th Family Court of Mexico, the respondent proceeded to the child's school on October 11, 2012, and seized the child. Afterwards, the respondent crossed the border from Mexico into the United States, without permission from the petitioner, giving rise to the Amber alert that was issued by the Mexican officials. Subsequently, the 24th Family Court voided the orders of the 11th Family Court based on, inter alia, the fact that the respondent had obtained the orders using fictitious names and because it was contrary to the order of the 24th Family Court that had granted the petitioner exclusive parental rights.

The petitioner, who had been attending school in the United States, returned to Mexico on October 18, 2011. The child resided in Mexico from October of 2011 until November 1, 2012, when the respondent traveled to the United States with him. The petitioner petitioned the Court under the Convention, claiming that on or about October 11, 2012, the respondent abducted the child from preschool in Mexico City and successfully left Mexico for Texas where the child remains.

On December 18, 2012, the Court took possession of all the passports issued in the child's names and ordered that the child not be removed from the jurisdiction of the Court. On December 20, 2012, the Court issued a temporary order, setting parameters for parental access to the child pending a full hearing. The Court found that petitioner satisfied all three elements of a prima facie case by a preponderance of the evidence and that the respondent has failed to establish his claimed defense by clear and convincing evidence.

The Court found that Mexico was the child's habitual residence. The Fifth Circuit has joined "the majority" of Circuits that "have adopted an approach that begins with the parents' intent or settled purpose regarding their child's residence." Larbie, 690 F.3d at 310. This approach does not ignore the child's experience, but rather gives greater weight to the parents' subjective intentions relative to the child's age. In those cases, the threshold test is whether both parents intended for the child to "abandon the [habitual residence] left behind." Absent shared intent, "prior habitual residence should be deemed supplanted only where 'the objective facts point unequivocally' to this conclusion." Larbie, 690 F.3d at 311. Although the child was born in the United States, the facts established that the parents intended to make Mexico the child's habitual residence. Specifically, the petitioner and the respondent were both Mexican nationals, they met while residing in Mexico, they were not citizens of the United States, did not own real property in the country, and did not have immigration status that allowed them to permanently reside here. Moreover, the respondent moved the child to Mexico pursuant to a Texas court order that designated Mexico as the child's place of residence. In the Texas order, both parents listed Mexico as their place of residence. The respondent admitted, and the evidence established, that he represented to the Mexican courts that his residence was Mexico. In other words, the evidence establishes that neither parent has meaningful or deep-rooted ties to the United States. Moreover, the child resided in Mexico for approximately thirteen months and was attending school there before the respondent removed him to the UnitedStates. Therefore, based on these undisputed facts, the Court concluded that Mexico was the child's habitual residence.

The Court held that the respondent's removal of the child to the United States was a breach of the petitioner's "rights of custody" under both the laws of Mexico and Texas. The order of the 24th Family Court of New Mexico gave the petitioner full and exclusive parental rights over the child. Moreover, the Court found persuasive the testimony of an expert in Mexican law, that as the sole parent listed on the child's birth certificate, the petitioner was the only recognized parent in Mexico and no order of any Mexican court ever revoked her parental rights. Although the respondent obtained an order from the 11th Family Court that gave him rights of possession of the child, that order did not terminate the petitioner's parental rights. Preliminarily, the respondent, as another Mexican court subsequently found, used fictitious names to file the suit that resulted in the favorable order and failed to mention the prior unfavorable order against him from the 24th Family Court. Therefore, this Court was not obliged to give substantial weight to an order that was apparently obtained, at the very least, through misrepresentations. In any event, the order of the 11th Family Court, which noted that it was an emergency measure, never expressly revoked the petitioner's rights of custody.

The Court was also of the opinion that, under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), the 410th District Court of Montgomery County, Texas, that granted rights of custody to the petitioner and the respondent, lost "exclusive continuing jurisdiction" when, pursuant to its own order, the parents not only moved to Mexico with the child, but established Mexico as the child's residence. Even assuming that Texas did not lose jurisdiction over the parties, at the very least, Mexico had concurrent jurisdiction because all the parties, including the child, resided in Mexico. Mexican courts affirmatively determined that they had jurisdiction over the parties. Moreover, even assuming arguendo that the Texas court retained continuing and exclusive jurisdiction over the parties, the petitioner would still have rights of custody under the October 21, 2011, order which granted the parties joint parental rights. While subsequent orders from January and February of 2012 purportedly modified the October 21, 2011, amended final order, this Court is of the opinion that those orders were entered in violation of the Due Process clause of the federal Constitution and the Hague Convention on service of process. Under the Hague Service Convention, signed by both Mexico and the United States, a Mexican national, like the petitioner, can be served with a foreign proceeding in Mexico only through the Central Authority of Mexico. See Hague Service Convention, arts. 2-5; Here, there was no evidence in the record that the respondent served the suits that resulted in the Texas orders modifying parental rights in accordance with the Hague Service Convention. Therefore, those orders were void. Since the Texas state court order designated Mexico as the child's residence, and specifically required that the child not travel outside of Mexico without consent of the parents, the respondent breached the petitioner's rights of custody under Texas law and, also under Mexican law, when he removed the child to the United States, admittedly, without the petitioner's permission. Finally, the Court concluded that the petitioner has established by a preponderance of the evidence that she was exercising her rights of custody prior to the child's removal from Mexico. The Fifth Circuit has noted that it is "relatively easy" to show that a petitioner was exercising her rights of custody, either jointly or alone, or would have exercised them but for the removal or retention. The evidence established that the petitioner, as the primary custodian of the child in Mexico, regularly exercised her rights of custody, including, inter alia, taking the child to school and providing for his welfare.

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