Bernal v. Gonzalez,--- F.Supp.2d ----, 2012 WL 7113186 (W.D.Tex.) [Mexico] [Habitual Residence][Rights of Custody] [Grave Risk of Harm] [Article 16 & 17] [Petition Granted]

In Bernal v. Gonzalez,--- F.Supp.2d ----, 2012 WL 7113186 (W.D.Tex.) Petitioner Amelia Aguilar Bernal filed a Verified Petition for Return of Children. Petitioner Bernal and Respondent Gonzalez were citizens of the Republic of Mexico; were married in Elk Point, South Dakota, on January 31, 2003; and were the parents of four children: A .B. (male), C.G.B., C.D.B., and A.B. (female). The children were all born in the United States of America and were United States citizens. A.B. (male) was born in 1996 in California and was currently sixteen years old. C.G.B. and C.D.B. were ten year old twins, born in Iowa in 2002. A.B. (female) was five years old, also born in Iowa, in 2007. In 2008, Petitioner and Respondent moved to Guasaves, Sinaloa, Mexico, from the United States, with their four children. There, Respondent purchased land and built a house. A.B. (male), C .G.B., and C.D.B. attended school in Guasaves, Sinaloa, Mexico. A.B. (female) was at home with Petitioner or family members. Petitioner took care of the children while Respondent worked in the United States. Petitioner and Respondent had marital problems and separated in 2010.

On December 16, 2010, Petitioner and Respondent entered into an agreement regarding the care of their four children at the Desarrollo Integral de La Familia (1) Respondent would pay $1500.00 Mexican pesos per week for support of A.B. (male), C.G.B., C.D.B., and A.B. (female); and (2) Respondent would have weekend visitation rights. The agreement restricted Respondent's visitation to locations within Sinaloa, Mexico. Respondent and Petitioner signed the agreement and each placed inked thumb prints on the document. After signing the agreement, Respondent returned to the United States to work. At some point in March of 2011, Respondent returned to Guasaves, Sinaloa, Mexico, with the intent to retrieve his four children and move them to the United States. On or about March 25, 2011, Respondent picked up A.B. (male), C.G.B., C.D.B., and A.B. (female) from Petitioner for a weekend of visitation as per their written agreement. On or about March 25, 2011, Respondent took A.B. (male), C.G .B., C.D.B., and A.B. (female) to the United States. Petitioner never consented to the initial removal of her four children to the United States and never subsequently acquiesced to the removal of the children. Petitioner diligently pursued the location and return of her children. On or about March 28, 2011, Petitioner reported Respondent's taking of the children to the Ministerio Publico in Guasaves, Sinaloa, Mexico.

On July 12, 2011, Petitioner signed an Application for Return of Children. Upon leaving Mexico, Petitioner first took A.B. (male), C.G.B., C.D.B., and A.B. (female) for a brief stay in San Diego, California. From California, they moved to Nebraska. From information provided to her by her aunt, Petitioner learned A.B. (male), C.G.B., C.D.B., and A.B. (female) were in Nebraska soon after their arrival there.. Petitioner requested that Respondent return the children to Mexico and he refused. Respondent moved A.B. (male), C.G.B., C.D.B., and A.B. (female) from Nebraska to Crane, Texas. Respondent filed for divorce in a Texas court on May 2, 2012. A default judgment was entered by the Texas court on July 26, 2012. Respondent was awarded sole managing custody.

Petitioner filed suit in the Western District of Texas, Midland/Odessa Division, for Return of Children on August 27, 2012. The court found that the Republic of Mexico was the country of habitual residence for A.B. (male), C.G.B., C.D.B., and A.B. (female) prior to their removal on or about March 25, 2011. Petitioner proved by a preponderance of the evidence that C.G.B., C.D.B., and A .B. (female) were wrongfully removed from their country of habitual residence. Petitioner had rights of custody under the laws of the State in which the children were habitual residents immediately before removal and was exercising those rights before removal. Respondent's removal of C.G.B., C.D.B., and A.B. (female) breached Petitioner's rights of custody.

The court observed that the the Fifth Circuit adopted its framework for making country of habitual residence determinations. Larbie v. Larbie, 690 F.3d 295, 310 (5th Cir.2012). The inquiry balances the interests of the child with the intentions of the parents. Larbie, 690 F.3d at 310. A court's "inquiry into a child's habitual residence is not formulaic; rather it is a fact-intensive determination that necessarily varies with the circumstances of each case." When determining a child's country of habitual residence, analysis focuses on the "parents' shared intent or settled purpose regarding their child's residence." Here the facts indicated that both parents shared the intent that Guasaves, Sinaloa, Mexico, was their children's residence prior to removal. Petitioner clearly established that in 2008, Petitioner and Respondent, together, moved their children, A.B. (male), C.G.B., C.D .B., and A.B. (female), from the United States to Sinaloa, Mexico. Once there, Respondent purchased land and built a home. Further, the children were enrolled in and attended the local Mexican public schools. Moreover, Respondent left the children in Mexico with Petitioner for months at a time while he worked in the United States. Habitual residence is determined by looking at the parents' intent or settled purpose prior to removal. See Larbie, 690 F.3d at 310. The parents' mutual decision to move their children to Mexico from the United States and establish roots in Guasaves, Sinaloa, Mexico, provided strong evidence of shared parental intent to make Mexico their children's country of habitual residence. Further evidence of shared parental intent and settled purpose was provided by the parents' signed written agreement, outlining Respondent's voluntary agreement to a visitation arrangement in Mexico.

Rights of custody was to be determined by the application of the laws of the Republic of Mexico. Petitioner Bernal asserted that the parties voluntarily executed a legally enforceable custody agreement under Article 17 of the Sinaloa Civil Code. To assist in proving that the document was a legally enforceable custody agreement under the laws of the Republic of Mexico, Petitioner submitted into evidence an affidavit by Mexican attorney Mariano Nunez Arreloa which explained relevant Mexican laws. When interpreting issues of foreign law, Federal Rule of Civil Procedure 44.1 allows a liberal approach to evidentiary rules, thus making Mariano Nunez Arreola's affidavit acceptable proof of Mexican laws. The State of Sinaloa, Mexico, in accordance with the Sinaloa Civil Code adhered to the legal doctrine of patria potestad. See Sina. Civ.Code, tit. 8, ch. 1, art. 412 et seq.; "Pursuant to that doctrine both parents have joint custody

rights." The Court found that the agreement between Petitioner and Respondent was valid under the laws of the State of Sinaloa, Mexico. Furthermore, the agreement gave Petitioner specific rights of custody as defined by the Convention. Petitioner proved by a preponderance of the evidence that Respondent took C.G.B., C.D.B., and A.B. (female) in breach of Petitioner's rights of custody under the laws of the children's habitual residence-the Republic of Mexico ,and that such rights were exercised at the time of removal.



In support of his "grave risk" affirmative defense, Respondent argued that the narrow exception to return of the children to Mexico applies because the ongoing cartel violence in Guasaves, Sinaloa, Mexico, posed a grave risk; and Petitioner was less fit than Respondent to care for their children. The court found that Respondent failed to establish by clear and convincing evidence that there was a grave risk that return of C.G.B., C.D.B., and A.B. (female) would expose the children to physical or psychological harm or otherwise place the children in an intolerable situation. Respondent argued that the following provided evidence that return would expose the children to physical or psychological harm or place the children in an intolerable situation: (1) the ongoing cartel violence in Guasaves, Sinaloa, Mexico; Respondent testified to observing what appeared to be dead bodies in the river near their home in Guasaves, Sinaloa, Mexico. (2) an occurrence in which A.B. (male) was a passenger in a vehicle stopped at gunpoint by alleged cartel members; A.B. (male) testified that he was in a vehicle with his uncle, grandmother, and cousin. The vehicle was stopped by armed men and a gun was pointed at his uncle. A.B. (male) further testified that the armed men were not police and were looking for people in a similar vehicle. The armed men allowed them to leave.

The Court held that ongoing violence in the Republic of Mexico was a serious concern; however, the general cartel violence in Mexico, and specifically the testimonial evidence, did not constitute the clear and convincing evidence necessary to trigger the grave risk of harm exception. Moreover, courts have refused to extend the grave risk of harm exception to cases in which return of a child was to a country facing similarly violent sociopolitical disruptions as those currently confronting the citizens of the Republic of Mexico. Respondent demonstrated that the ongoing violence in Mexico posed serious risk: however, Respondent failed to show that the risk to the children was grave. Respondent failed to show that the conditions in Guasaves, Sinaloa, Mexico, equated to a "zone of war, famine, or disease." Respondent's grave risk of harm defense based on the cartel violence in Mexico was denied.

Respondent presented evidence that Petitioner possibly over-consumed alcohol; possibly entertained late night visits by men seeking money; failed to provide a clean house for the children; did not have employment; failed to provide the children with properly fitting clothing and shoes with money supplied by Respondent; and failed to rid the children of lice infestation. At trial, much was made over an incident in which A.B. (female) was stung by a scorpion at approximately 10:00 p.m., while staying at her grandparents' home. The child was rushed to the local hospital for treatment. Petitioner could not be immediately located, however, Petitioner testified that once she learned of the scorpion incident she went to the hospital and found that A.B. (female) had already been released. Although the evidence presented did not paint Petitioner in a pleasant light, Respondent failed to present any evidence of serious neglect or abuse to satisfy the grave risk of harm exception. The grave risk of harm defense was not intended to be used by a respondent as a vehicle to litigate the child's best interests.

When a petition for return of child is commenced in a court after one year from the date of removal, the respondent can assert an affirmative defense and prevent removal back to the country of habitual residence if respondent proves by a preponderance of the evidence that the child is now settled into the new environment. 42 U.S.C. § 11603(e)(2)(B); Convention, art. 12. Petitioner filed suit five months after the deadline. However, Respondent never raised the settled into new environment affirmative defense. Convention, art. 12. It was not raised in his answer, supplemental briefing, post-trial briefing, or at trial. Petitioner urged the Court to treat the Article 12 affirmative defense as waived because Respondent never asserted the defense. See Fed.R.Civ .P. 8(c)(1) (requiring parties to plead affirmative defenses)." Nevertheless the court held that Petitioner was never per se ambushed by an Article 12 settled into new environment defense because Respondent never raised the defense at any time over the course of the proceedings. Petitioner was well aware of the potential for an Article 12 affirmative defense based on the delayed filing of Petitioner's Verified Petition for Return of Children. However, the Court was mindful that by exercising its "contingent discretionary power" and examining Respondent's unpleaded Article 12 affirmative defense, Petitioner might be prejudiced by her inability to respond and assert a potentially viable equitable tolling defense, available to petitioners that fail to meet the one-year filing deadline under the Convention.

Through the exercise of the Court's "contingent discretionary power" to examine Respondent's settled into new environment affirmative defense under Article 12 of the Convention, it held that substantial evidence had not been presented to the Court to prove by a preponderance of evidence that C.G.B., C .D.B., and A.B. (female) were now settled into Crane, Texas; thus, there was no exception to return under the Convention. See 42 U.S.C. s 11603(e)(2)(B).

Respondent asserted that a default judgment divorce, entered by a Texas court on July 26, 2012, in which the Court awarded Respondent sole managing custody over the children was a defense to the return of C.G.B., C.D.B., and A.B. (female) to their country of habitual residence-the Republic of Mexico. The court pointed out that the Convention provides that state court actions "shall not decide ... the merits of rights of custody until it has been determined that the child is not to be returned" to the country of habitual residence in cases of wrongful removal under the Convention. Convention. art. 16. Furthermore, ICARA expressly prohibits a court from deciding the underlying merits of a custody dispute. 42 U.S.C. § 11601(b)(4). Under Article 17, that State cannot refuse to return a child solely on the basis of a court order awarding custody to the alleged wrongdoer made by one of its own courts or by the courts of another country. Significantly, the Court's determination that C.G.B., C.D.B., and A.B. (female) were wrongfully removed from their country of habitual residence under the Convention preempted the default judgment in state court that awarded sole managing custody. Respondent's award of sole managing custody under the laws of Texas was no defense to the return C.G.B., C.D.B., and A.B. (female) to the Republic of Mexico. The Texas court did not have the authority to decide the custody of the children and assign Respondent sole managing custody while the suit for return of children under the Convention was pending. Convention, art. 16.