Carranco v Munoz, 2013 WL 150760 (D.N.J.) [Mexico] [Habitual Residence] [Petition Granted]

In Carranco v Munoz, 2013 WL 150760 (D.N.J.) Petitioner Andres Augusto Castenada Carranco was a Mexican citizen currently living in Chiapas, Mexico. Respondent Arianna Munoz Cabrera was a Cuban citizen and a U.S. legal permanent resident living in Newark, New Jersey. Petitioner and Respondent were married in Cuba in or about October 2006. Following their marriage, the parties lived in Chiapas, Mexico as a couple. There, they had a child-Ana Daylen Munoz Carranco ("Ana")-who was born on April 9, 2008. Respondent was Ana's primary caretaker, as she did not work outside the home in Mexico. In November 2009, Petitioner traveled to the United States with Respondent and Ana on tourist visas to visit Respondent's father and stepmother in Newark, New Jersey. Petitioner returned to Mexico after approximately two weeks, while Respondent and Ana remained in New Jersey for approximately a month and a half. Upon Respondent and Ana's return to Mexico in December 2009, the parties experienced marital discord. Consequently, Respondent told Petitioner that she wanted to live with her parents in New Jersey. Petitioner then told Respondent that "she could leave alone, but that the child wasn't leaving." On July 9, 2010, the parties entered into a consent agreement that, in relevant part, required (1) Petitioner to take Ana to Houston, Texas for purposes of remaining in the United States as a tourist until December 15, 2010; and (2) Respondent to return Ana to Petitioner on December 15, 2010.

    On or about July 22, 2010, the parties entered the United States via Mexico's border with Texas. Petitioner and Ana entered with tourist visas, and Respondent was paroled pursuant to the Cuban Adjustment Act. Approximately one day later, Respondent and Ana traveled to New Jersey where they stayed with Respondent's family, and Petitioner returned to Mexico. At some point between September and October 2010, Respondent asked Petitioner whether she could return Ana to Mexico before December of that year. Respondent wanted to return Ana prior to the date agreed upon in the consent agreement because she wanted time to adapt to living in New Jersey. Petitioner agreed to accept Ana's early return in or about September/October 2010, and Respondent sent Ana to Mexico shortly thereafter. In February 2012 Petitioner agreed to allow Ana to visit Respondent from May to August of that year. Respondent acknowledged that she and Petitioner orally agreed that Ana
would visit only for the summer, and would return in time to start the 2012-2013 school year in Mexico. On or about May 6, 2012, Petitioner and Ana traveled to Houston, Texas where they met Respondent. Respondent subsequently traveled to New Jersey with Ana, and Petitioner returned to Mexico. In June 2012, Respondent informed Petitioner that she wanted Ana to remain in New Jersey permanently, and would not return Ana to Mexico in August 2012.

On November 27, 2012, Petitioner filed his Petition. He personally served Respondent with copies of the Petition and his application with the Mexican Foreign Ministry on or about December 5, 2012. From early May 2012 until the present, Ana resided with Respondent in New Jersey, and has grown attached to Respondent's father, stepmother, and two brothers. Throughout this time, Petitioner has regularly communicated with Ana by telephone.

The court held that it had subject matter jurisdiction of this matter premised on 42 U.S.C. ¶11603(a), which provides that "[t]he courts of the States and the United States district courts shall have concurrent jurisdiction of actions arising under the Convention." Mexico and the United States are contracting states under the Convention.

Petitioner argued that the date of wrongful retention was August 2012 since that is the date the parties agreed Ana would return to Mexico. Respondent argued that the "measuring date for wrongful retention is December 5, 2012," as that is the date that "[P]etitioner filed a petition for the return of the child," and "personally served [R]espondent at her parent's home." The Third Circuit has endorsed the proposition that the retention date is thedate that a parent unequivocally communicates his or her desire to regain custody. However, when parents mutually agree to allow their child to travel outside the country of habitual residence for a specifically defined period of time, the retention date is measured as of the date on which the parent outside the country of habitual residence fails to return the child as agreed. See Karkkainen, 45 F.3d at 290. Petitioner and Respondent agreed in February 2012 that Ana would visit New Jersey until August 2012, and then return to Mexico. Respondent failed to return Ana to Mexico as agreed. Accordingly, the measuring date for wrongful retention was August 2012.

The Court found that as of the date of her May 2012 trip, Ana was a habitual resident of Chiapas, Mexico. That is where Ana was born and resided with the parties until Respondent immigrated to the United States in July 2010. Chiapas, Mexico is also where Ana has lived for all but approximately eight of the approximately 56 months she has been alive. Respondent acknowledged that the parties orally agreed that Ana's visit to New Jersey in the summer of 2012 would be temporary. Under the terms of the parties' oral agreement, Respondent was to ensure that Ana return to Mexico at some point in August 2012. Respondent failed to do this, and decided unilaterally that Ana would permanently remain in New Jersey. Respondent's changed intentions cannot result in an alteration in Ana's habitual residence. See Mozes, 239 F.3d at 1067. Thus, the Court concluded that Ana's habitual residence in August 2012 was Chiapas, Mexico.

The Court found that Respondents unlawful retention of Ana was in breach of his custody rights under the Civil Code for the State of Chiapas, Mexico (the "Civil Code"), which provides that "both parents have custody of their minor children." The Civil Code enshrines the concept of patria potestas is understood to mean the relationship of rights and obligations that are held reciprocally, on the one hand, by the father and mother or in some cases the grandparents and, on the other hand, the minor children who are not emancipated." Thus, under the Civil Code, etitioner had the right to exercise parental authority (i.e., patria potestas ) over Ana at the time of retention. Respondent's retention of Ana in New Jersey against Petitioner's will violates Petitioner's right to exercise parental authority over Ana in accordance with the Civil Code. Petitioner was exercising his custody rights at the time of retention.