Matas-Vidal v. Libbey-Aguilera, 2013 WL 3995300 (D.Utah) [Mexico] [Well-Settled] [Age and Maturity] [Petition Denied]

　

In Matas-Vidal v. Libbey-Aguilera, 2013 WL 3995300 (D.Utah) on June 7, 2013 Juan Pablo Matas-Vidal filed a Petition for Return against Respondent Susan Consuelo Libbey-Aguilera, also known as Brooke Robinson, who was the mother of the children,

At the same time, he filed a Motion for a Temporary Restraining Order, Order to Show Cause, Writ of Assistance, and Request for Immediate Return of Minor Children. On June 7, 2013, the court granted the Motion for a TRO and entered an Order which, among other things, prohibited Ms. Libbey-Aguilera from interfering with the children being taken into protective custody.

Petitioner and Respondent were married in Mexico City on June 26, 1999.  Petitioner was a Mexican national, and Respondent had dual citizenship in Mexico and the United States, as her father was a United States citizen and her mother was a Mexican citizen. SM-L was born in Mexico City in May 2001, and RM-L was born in Mexico City in November 2003. At some point when the children were very young, the couple discussed the possibility of moving to the United States, but that
possibility never came to fruition because Petitioner could not find adequate-paying work in the United States. The children were granted United States citizenship in 2005. In October 2006, Ms. Libbey-Aguilera purchased a condominium in San Antonio, Texas and sometimes visited there. For the duration of their marriage, however, Petitioner, Respondent, and their two children always lived in Mexico City. They lived there until the time Ms. Libbey-Aguilera removed the children from Mexico to Utah in December 2010. Petitioner filed for divorce in early October 2007 in Mexico City. On October 16, 2007, the Mexican court issued an Order barring the removal of the children from Mexico. On December 14, 2007, after a mediation on December 11, 2007, the court ordered that Ms. Libbey-Aguilera would be granted the provisional physical custody of the children at their marital domicile. Petitioner would have visits on Saturdays and Sundays every other week from 10:00 a.m.-1:00 p.m. at the Supervised Visitation and Socialization Center. It was also ordered that Mr. Matas-Vidal may socialize with his children on holidays, the children's birthdays, and fifty percent of school vacations, with prior notice and mutual agreement of both parties. The December 14, 2007 Order again prohibited Respondent from taking the children out of Mexico. On June 30, 2010, the Mexican court issued an order granting "custodia definitiva " to Respondent argued that the Order granted her "sole custody" and dissolved any restrictions on her travel outside of Mexico. Petitioner, however, provided evidence that the English translation of "custodia definitiva" is not "sole custody," as that term is understood in the United States, and he also provided evidence that, because he still had custody rights, Respondent was still prohibited from leaving Mexico. The June 30, 2010 Order provided that Mr. Matas-Vidal "has the obligation and essential human right to visit and go out with his children... on Saturdays and Sundays ... every other weekend. Visitations shall begin on Saturdays at 10 AM and end on Sundays at 6 PM." These visits were not ordered to take place at the Supervised Visitation and Socialization Center. Mr. Matas-Vidal was to "pick the  children up at they place where they live with their mother and return them to the same place."

On November 25, 2010, a bifurcated decree of divorce was entered. Thus, the divorce had become final, but the issue of child custody and support were still being litigated. During the custody litigation, Petitioner exercised all visitation awarded to him by the Mexican court. He regularly exercised his right of access until the children were removed from Mexico. On January 8, 2011 and January 9, 2011, he went to the Supervised Family Interaction Center but Ms. Libbey-Aguilera and the boys did not show up. He then confirmed that they no longer lived at their marital home and was informed by the boys' school that, as of December 16, 2010, the boys had stopped attending school. In December 2010, Respondent surreptitiously removed the children from Mexico to the United States. She came directly to Orem, Utah and enrolled the children in school on December 21, 2010.

On January 7, 2011, after Respondent had removed the children from Mexico, the Mexican appeals court revoked the June 30, 2010 Order. On February 9, 2011, in the District Court for the Seventh Judicial District in the State of Idaho, Respondent had her name legally changed to Brooke Robinson, claiming that she needed to change her name because she was "divorcing her husband and am seeking to avoid being located by my husband for the reason he has threatened to kill me and my family." Respondent and her two children had been living in Orem, Utah from December 2010 through the present time. Petitioner had been looking for his children since he realized they were gone in January 2011. The Petition was filed on June 7, 2013.

The court found that that the Convention applied to this dispute. SM-L and RM-L were both under 16 years old; they were habitual residents of Mexico; and both Mexico and the United States are contracting states. The children were "wrongfully removed" from Mexico, in violation of a right of custody. The children were born in Mexico City and never lived anywhere other than Mexico until Respondent removed them to the United States in December 2010. The court also concluded that the removal was in breach of Petitioner's custody rights under Mexican law and that Petitioner was exercising those rights at the time of removal. Although Respondent claims that she was awarded "sole custody" and that any restraints on her ability to take the children across the border were dissolved, the court did not agree. The July 9, 2010 Order stated that Respondent was given "custodia definitiva," but that is not the same thing as "sole custody," as discussed below. Moreover, both parties appealed that order in August 2010. Under Mexican law, the challenged order had no effect, so the ne exeat order from October 16, 2007 remained in effect. Because the June 30, 2010 order was being appealed, and because custody was still subject to litigation, the interim ne exeat order from October 16, 2007 continued to apply. Regardless of which Order applied, however, Petitioner had intrinsic ne exeat rights barring the children's removal pursuant to Mexico's Civil Code.

The Court rejected Respondents contention that there was a grave risk that return of the children would expose them to physical and/or psychological harm. While Respondent alleged that she and the children were victims of domestic violence, the court was not persuaded that these allegations were entirely true. Moreover, the records submitted from the Supervised Visitation Center suggested that, at first, the children did not exhibit any fear or reluctance to see their father. Indeed, they appeared to demonstrate a warm, loving, and playful interaction. Over time, however, they seemed to develop more hesitation about seeing him, which he blamed on Ms. Libbey-Aguilera's efforts to alienate the children from him. The reason the children most often gave to the supervisors about their reluctance to visit with their father was that his breath was bad. It seemed unlikely that the children would provide such an answer if they were actually subjected to physical or psychological abuse, and it was puzzling that the children did not appear to have any reluctance to see their father during the
beginning weeks or months of their supervised visits. The court found that even if there were a grave risk she had not demonstrated that Mexican courts would be incapable of providing adequate protection. Thus, the court concluded that Article 13 "grave risk" defense did not apply in this case.

The Respondent raised the Article 12 well settled defense. The default presumption under the Convention is that a child shall be returned to the state from which he originally was wrongfully removed unless both of two conditions are met: (1) one year has elapsed between the date of wrongful removal and the date proceedings commence; and (2) the child is found to be "now settled in its new environment." Loranzo v. Alvarez, 697 F.3d 41, 51 (2nd Cir.2012). SM-L and RM-L had been in Utah since late December, 2010-for over two and one-half years. The court found that they were both very well settled. And given the boys' ages, 12 and 9 ½, respectively, these thirty-plus months had been meaningful to the boys. They had been consistently enrolled in school since January 2011. They missed very few days during those two school years, and their academic success had been remarkable. Both boys had many friends, caring neighbors, and fellow LDS church members with whom they had  formed close bonds. Their maternal grandmother also frequently cared for them. The children were active in their church, in boy scouts (or cub scouts for RM-L), and they were on a competitive swim team. SM-L is also on a soccer team. Many friends and neighbors have provided glowing letters about Respondent and the boys, and attesting to the boys' happiness and stable environment. Their mother had also been consistently employed since March 2011 and appeared to be financially stable. They boys both spoke fluent English and appeared to have adjusted well to their
living situation. Given the outpouring of support for the boys and Respondent, both in terms of having friends and neighbors attend the two court hearings and in submitting letters to the court, there was no question that these two boys were surrounded by a loving and supportive community and that the boys were thriving in their current environment. They were indeed settled in their new environment.

The Court rejected Petitioner’s argument that he was entitled to equitable tolling of the one-year period for the filing of his Hague petition and that the Article 12 defense is therefore inapplicable. While the court agreed that Respondent concealed the boys, that such concealment delayed Petitioner's ability to file a petition, and that he filed his petition within one year after he finally learned of their location, the court declined to apply equitable tolling to the one-year mandatory return period. The Court agreed with the Second Circuit (Loranzo v. Alvarez, 697 F.3d 41, 51 (2nd Cir.2012), cert. granted in part, 133 S.Ct. 2851 (June 24, 2013) ) and other district courts that have found that the purpose of the one-year mandatory return period is not to provide a deadline for a petitioner to assert a claim but rather is to put a limit on the uprooting of a settled child. Thus, the court declined to apply the doctrine of equitable tolling to the Article 12 "well-settled" defense.

The Court observed that the Hague Convention provides that "[t]he judicial or administrative authority [considering a petition] may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views." Hague Convention, art. 13. In this case, SM-L was twelve-years old and would start seventh grade next month. RM-L would be ten-years old in three months and would soon start fourth grade. The court had the opportunity to observe the demeanor and maturity of both children during the court's in camera interview of each of them. They both demonstrated a high level of maturity in answering the court's questions-answering the questions in an articulate, thoughtful, and respectful manner. They were both good students with strong academic records. They both expressed a strong desire to remain in Utah and had particular objections to returning to Mexico. They confirmed that they enjoyed going to school here, were involved in church and several sports activities, and had many friends here. Both boys became visibly distraught when the court discussed the court's task of evaluating whether they should be returned to Mexico. The response of both boys appeared to be purely genuine-not concocted or rehearsed in any way.

Additionally, the boys were adamant about not wanting to have a supervised visit their father while he was in town for the court proceeding. The court found that the boys were of an appropriate age and maturity such that it was appropriate for the court to take into account their desire to not return to Mexico. The court recognizes that the boys had spent the past two years solely with their mother and maternal grandmother, and that this circumstance had undoubtedly had an impact on their desire to stay with their mother in Utah. It was also possible that their mother negatively colored the boys' view of their father. Here, while the children's objections to returning to Mexico could be due to the mother's possible undue influence over them, the court found that this possible undue influence was not the only reason the children desired not to return to Mexico, and thus, the court declined to ignore their wishes. The children appeared to be genuinely happy and thriving in their current situation. The court was convinced that the return of these children to Mexico City would severely traumatize these children. The Petition was denied.