In Gallardo v. Orozco, --- F.Supp.2d ----, 2013 WL 3803905 (W.D.Tex) Petitioner
Gallardo was a citizen of the Republic of Mexico and Respondent Orozco was a
citizen of the United States. Petitioner and Respondent were the parents of G.G.
who was born in Denton, Texas, in May of 2005. G.G. was currently 8 years old.
Petitioner and Respondent were married in Las Vegas, New Mexico, on December 18,
2006.
In 2007, Petitioner and Respondent relocated with G.G. from Los Alamos,
New Mexico, to Puerto Penasco, Sonora, Mexico. Petitioner and Respondent had a
shared intent to move G.G. from the United States to Puerto Penasco, Sonora,
Mexico. Since 2007 when the entire family relocated to Puerto Penasco, Sonora,
Mexico, from Los Alamos, New Mexico, until on or about July 26, 2012, G.G.
continuously lived with Petitioner in Puerto Penasco, Sonora, Mexico..
Respondent lived with Petitioner and G.G. in Puerto Penasco, Sonora, Mexico, for
approximately two years, until he moved to Midland, Texas. In 2008 Petitioner
and Respondent attempted to reunite and relocate to the United States.
Petitioner tried to return to the United States illegally and was arrested on
December 29, 2008, while attempting to cross the Rio Grande near the port of
entry at El Paso, Texas. Respondent was in the United States awaiting
Petitioner's crossing. Petitioner served approximately twenty-one (21) days for
her illegal re-entry after prior removal stemming from this arrest. Upon release
from custody in January 2009, Petitioner was deported to Ciudad Juarez,
Chihuahua, Mexico, where Respondent picked her up and returned her to Puerto
Penasco, Sonora, Mexico. After Respondent drove Petitioner to Puerto Penasco,
Sonora, Mexico, Respondent lived with Petitioner and G.G. for approximately
seven months before
moving permanently to Midland, Texas. G.G. remained in Puerto Penasco,
Sonora, Mexico, with Petitioner. Petitioner and Respondent had a shared intent
that G.G. remain with Petitioner in Puerto Penasco, Sonora, Mexico. Thereafter,
Respondent's mother, who resided in Puerto Penasco, Sonora, Mexico, would bring
G.G. to Midland, Texas, to visit Respondent during the summer while G.G. was on
vacation from school. Petitioner consented to these trips. Each visit would last
approximately one-to-two months. At the end of each scheduled visit G.G. would
be returned to Puerto Penasco, Sonora, Mexico.. G.G. has attended school in
Puerto Penasco, Sonora, Mexico, since the 2009-2010 school year. G.G. was
enrolled in school in Puerto Penasco, Sonora, Mexico, for the 2012-2013 school
year.
Petitioner asserted that on or about July 25, 2012, Respondent came to
Puerto Penasco, Sonora, Mexico, to have a few days of visitation with G.G. at
his parents' home in Puerto Penasco. Petitioner asserted that she agreed to
allow Respondent to have overnight visitation with G.G. at his parents' home and
that Respondent was scheduled to return G.G. after a few days. Petitioner
further asserted that instead of returning G.G. to Petitioner as scheduled,
Respondent removed G.G. to the United States without her permission. In
contrast, Respondent asserted that prior to arriving at Puerto Penasco, Sonora,
Mexico, in late July 2012, Respondent arranged with Petitioner to take G.G. to
Midland, Texas, for approximately a month to 45 days. It was Respondent's
position that Petitioner agreed and consented to the visitation. Respondent
asserts that before he took G.G. to Midland, Texas, the parties discussed the
possibility of G.G. staying in the United States to attend school. Respondent
asserts that Petitioner agreed to think about it, but did not agree at that time
to allow G.G. to stay and attend school in Midland, Texas. Respondent asserted
that Petitioner gave Respondent G.G.'s birth certificate. Respondent asserted
that he agreed to return G.G. if Petitioner wanted G.G. returned and not
enrolled in school in Midland, Texas. Respondent further asserted that after G.G.
was in Midland, Texas, the parties continued to have discussions about enrolling
G.G. in school. On July 31, 2012, Petitioner sent and Respondent received a text
message informing Respondent that G.G.'s school in Puerto Penasco, Sonora,
Mexico, started on August 20, 2012, and that G.G. needed to be back by that day.
On August 22, 2012, Petitioner sent and Respondent received a text message
demanding that Respondent return G.G. to her in Puerto Penasco, Sonora, Mexico.
After Respondent received the text message from Petitioner demanding G.G.'s
return, Respondent told Petitioner that he was going to enroll G.G. in school in
Midland, Texas. Petitioner objected to Respondent enrolling G.G. in school in
Midland, Texas. G.G. started school in Midland, Texas, on August 27, 2012.
The court observed 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."
The inquiry balances the interest of the child with the parents intentions, but
gives greater weight to the parents' subjective intentions when the child is
relatively young and incapable of deciding residency.
The court found that the facts indicated that both parents shared the
intent that Puerto Penasco, Sonora, Mexico, was their child's residence prior to
Respondent's taking of G.G. to Midland, Texas, with or without Petitioner's
consent, in late July of 2012. Petitioner established that in 2007, Respondent
and Petitioner, together, moved their child G.G. to Puerto Penasco, Sonora,
Mexico, from Los Alamos, New Mexico. After relocating to Puerto Penasco, Sonora,
Mexico, Respondent lived in Mexico with Petitioner and G.G. for approximately
two years. The parents' mutual decision to move their child to Mexico from the
United States and relocate to Puerto Penasco, Sonora, Mexico, provided strong
evidence of shared parental intent in 2007 to make the Republic of Mexico their
child's country of habitual residence. Additionally, Respondent moved
permanently to Midland, Texas, in 2009, leaving G.G. with Petitioner in Puerto
Penasco, Sonora, Mexico. Even though no formal custody agreements existed, the
parties arranged visitation. Respondent's mother who resided in Puerto Penasco,
Sonora, Mexico, would bring G.G. to Midland, Texas, to visit Respondent during
the summer while G.G. was on vacation from school. Petitioner allowed G.G. to go
on these trips to visit Respondent and each visit would last approximately one
to two months. At the end of each scheduled visit G.G. would be returned to
Puerto Penasco, Sonora, Mexico. The parents' decision for G.G. to remain in
Puerto Penasco, Sonora, Mexico, with summer visitation in the United States,
also provided strong evidence of shared parental intent that the Republic Mexico
was G.G.'s country of habitual residence.
The question remained whether G.G.'s habitual residence was abandoned,
thus changing from Puerto Penasco, Sonora, Mexico, to the United States. The
threshold test for determining whether the parties intended for G.G. to "
'abandon the [habitual residence] left behind' " was whether both parties shared
that intention. Larbie, 690 F.3d at 310-11. "[I]n the absence of settled
parental intent, courts should be slow to infer from such contacts that an
earlier habitual residence has been abandoned." Mozes, 239 F.3d at 1079. Without
shared parental intent the " 'prior habitual residence should be deemed
supplanted only where the objective facts point unequivocally to this
conclusion.' " Larbie, 690 F.3d at 311. In cases such as this in which the
parties no longer agree where the child's habitual residence is fixed and "the
representations of the parties cannot be accepted at face value ... courts must
determine from all available evidence whether the parent petitioning for return
of a child has already agreed to the child's taking up habitual residence where
it is." Mozes, 239 F.3d at 1076.
After an exhaustive review of all available evidence the Court determined
that Petitioner never agreed to G.G. taking up habitual residence in the United
States and never consented to G.G. being enrolled in school in the United
States. There was, therefore, no shared parental intent to shift G.G.'s habitual
residence from Mexico to the United States. The evidence pointed toward
Respondent's retention and subsequent enrollment of G.G. in school in the United
States as Respondent's unilateral action.
Petitioner satisfied the threshold requirement for cases arising under the
Convention by establishing that the child's country of habitual residence prior
to removal or retention was the Republic of Mexico. Petitioner proved by a
preponderance of the evidence that Respondent removed or retained G.G. in the
United States, "somewhere other than the child's habitual residence." The State
of Sonora, Mexico, in accordance with the Sonora Civil Code adheres to the legal
doctrine of patria potestad. See Son. Civ.Code, tit. 8, ch. 1, art. 578 et seq.;
"Pursuant to that doctrine both parents have joint custody rights." The Court
found that Petitioner had rights of custody conveyed by patria potestad under
the laws of the State of Sonora, Mexico. Petitioner proven by a preponderance of
the evidence that Respondent removed or retained G.G. in breach of Petitioner's
rights of
custody under the laws of the child's habitual residence-the Republic of
Mexico and that such at the time of removal or retention she was actually
exercising her rights of custody or would have been exercising those rights but
for the removal or retention. Larbie v. Larbie, 690 F.3d 295, 307 (5th
Cir.2012); Convention art. 3(b).).
Respondent Orozco pleaded the grave risk affirmative defense. Respondent
elicited testimony from Petitioner admitting that she worked late hours at a
casino. In addition, Respondent questioned whether Petitioner works, or had
worked in the past, as a prostitute. Petitioner denied the allegations of
prostitution and no other evidence of such activities was placed before the
Court. Respondent's argument that return of G.G. to the child's country of
habitual residence, the Republic of Mexico, would pose a grave risk of harm to
G.G. because of Petitioner's work at a casino and unsupported allegations of
prostitution fell extremely short of reaching the high threshold necessary to
establish the grave risk of harm affirmative defense.
Respondent pleaded, and argued at trial, that Petitioner consented or
subsequently acquiesced to Respondent removing G.G. from Puerto Penasco, Sonora,
Mexico, to Midland, Texas. When examining a consent defense, a court considers
what the petitioner actually agreed to when allowing the child to travel outside
of its country of residence and the scope of the petitioner's consent. Larbie,
690 F.3d at 309. In contrast, the "acquiescence [defense] addresses whether the
petitioner subsequently agreed to or accepted the removal or retention." When
examining an acquiescence defense, "'each of the words and actions of a parent
during the separation are not to be scrutinized for a possible waiver of custody
rights.' " Simcox v. Simcox, 511 F.3d 594, 603 (6th Cir.2007). The defense of
acquiescence has been held to require "an act or statement with the requisite
formality, such as testimony in a judicial proceeding; a convincing written
renunciation of rights; or a consistent attitude
of acquiescence over a significant period of time." Friedrich, 78 F.3d at
1070. Respondent's affirmative defense of consent failed on his own testimony.
Respondent's argument that Petitioner acquiesced to the removal or retention of
G.G. in the United States also fell short. There was no evidence before the
Court that Petitioner subsequently acquiesced to G.G.'s removal or retention in
the United States.
Respondent asserted that G.G. objected to being returned, and should not
be returned to Petitioner in Puerto Penasco, Sonora, Mexico. The court
undersigned met in camera with G.G., who had recently turned 8 years old. The
Fifth Circuit has previously held that a 13 year-old child did not meet the
degree of maturity required to object and determine where he/she wanted to live.
In the Courts opinion GG was not of sufficient age and maturity for the Court to
take into account her objection to being returned to Mexico.
The Court granted the petition.
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