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Saturday, October 19, 2013

Avila v. Morales, 2013 WL 5499806 (D.Colo.) [Mexico] [Habitual Residence] [Telephone appearance]

In Avila v. Morales, 2013 WL 5499806 (D.Colo.) the district court adopted the recommendation of the Magistrate Judge and granted the petition for return. Petitioner sought an order returning her children to their place of habitual residence in Mexico. The Court held a hearing on June 19, 2013, at which the Petitioner appeared telephonically. Her attorney appeared in person. Respondent appeared in person and was also represented by counsel. Petitioner was a Mexican citizen residing in Durango, Mexico. Respondent was a Mexican citizen residing in Aurora, Colorado. The parties never married but had two children subject to this petition: A.G.E.M, an 11-year-old boy, and A.E.M., a 9-year-old boy. Both boys were born in Colorado and had Colorado birth certificates. Petitioner, Respondent and their two sons resided together from August 2000 until December 2004, when Petitioner and the boys moved out and lived with other family members from that point until April 2010. From December 2004 to April 2010, the children resided with Petitioner, and she parented them nearly exclusively.

In April 2010 Petitioner decided, upon the sudden death of her father in Durango, Mexico, to move to Mexico with the boys to take care of her mother. She called Respondent the night before she left to tell him she was leaving with the children the next day, on April 27, 2010. Respondent did not think this was a permanent move because on two prior occasions Petitioner had traveled to Mexico with their sons, returning both times. Respondent asked Petitioner not to take the children with her in 2010. Petitioner took them anyway, packing their belongings and moving to El Pueblito, Durango, Mexico, to live with Petitioner's mother. The children went to school in El Pueblito for two years. They were enrolled to start a third year there in the fall of 2012. They had integrated into the family, community, and church in Durango. The children had been baptized in Colorado but completed their communions and confirmations in Mexico. While the boys lived in Mexico during a period of two years and four months, Respondent communicated by phone with the children periodically and his family visited the children in Mexico six (6) times. Respondent also sent at least some money to Mexico to support the children. Respondent did not take any action through the courts to seek return of his children, nor did he seek their return in any manner in the two years and four months they were living in Mexico.

  Petitioner made plans for the children to visit Colorado for two weeks in the summer of 2012 before they were to return to Mexico for the school year. Before the boys traveled to the United States, Petitioner procured Mexican birth certificates from the Mexican government. Petitioner was able to do so because both of the children's parents are Mexican citizens. Petitioner intended her children to travel to the United States using their American birth certificates and return to Mexico using their Mexican birth certificates. Petitioner's mother, nephew, and three children traveled to the United States as planned in early August 2012. Just a few days into the visit, however, Petitioner decided that her mother and nephew should end the trip and return the children to Mexico. As the children and Petitioner's mother and nephew headed south from Denver through Colorado on a commercial bus on August 8, 2012, Respondent and his sister contacted the bus company to request the bus to be stopped, claiming people were taking Respondent's children illegally. The bus driver pulled the bus over and Respondent, his sister, and his girlfriend, all of whom had been following the bus, pulled behind it and waited a few minutes until the City of Pueblo police officer arrived, took the children off the bus, and gave them to Respondent. Respondent assured the children that he just wanted to continue their visit but would return them home to their mother in Mexico after the two-week visit. The day after taking the children off the bus, Respondent filed a petition for custody in Adams County District Court. The Adams County magistrate dismissed the case on September 13, 2012, for lack of jurisdiction. Respondent decided he would not allow the children to return to Mexico.

Petitioner filed on October 8, 2012, an application with the Mexican Central Authority seeking return of the boys from the United States. Petitioner on March 27, 2013, filed the now-pending Petition with the district Court. For its analysis, the Court applied the Tenth Circuit's procedural directives on handling Convention petitions. It observed that Courts have also made it clear that a parent cannot create a new settled purpose and therefore a new habitual residence simply by fleeing a country with a child in tow or retaining a child in his former habitual residence. Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir.1997) "In an attempt to untangle the Gordian knot the parents, together, have seen fit to tie," the court indicated, in discussing the parents' repeated efforts to help themselves outside legitimate legal channels through "grab-and-run" law, that it would "refuse to condone such conduct." Id. The Tenth Circuit in Ohlander addressed parents who had both filed petitions under the Hague Convention; thus, the court also provided specific details of the "proper interpretation of the Hague Convention's procedures." The court criticized and ultimately reversed the district court for "misconstru(ing) the Convention's contemplated procedures." "According to the Convention, once a petition is filed, a court should consider only whether respondent's removals of a child are wrongful." A court is to examine whether a respondent parent took the child wrongfully-not whether the petitioning parent did. Similarly, exceptions to return run only one way-a respondent asserts them, not a petitioner. Only when a cross petition is filed would bilateral analysis be appropriate. Petitioner asserted that the habitual residence was Mexico, where the children lived for two years and four months with the Respondent's eventual acquiescence. Respondent's primary theory of habitual residence relied on the children's birth and residence in the United States and Petitioner's removal of the children to Mexico without his permission or consent.

The Court found that the parents shared an intent that the children's habitual residence would be Mexico. This shared intent was sufficient for the Court to find that the parents had a "settled purpose" that the children's habitual residence would be Mexico. While the Court believed it likely that Respondent did not initially agree to such a move nor did he immediately know that Petitioner planned a permanent move, even his own testimony indicated he knew within weeks of Petitioner's intent to stay there. The Court found Respondent's testimony credible that he continued his involvement with the children once they moved to Mexico, that he called them regularly, and that he sent them money. However, these facts merely validated the argument that he knew where they were, knew they were integrating in school and the community, and yet still did not seek their return in any way. As in Mozes, the Court also considered the significant passage of time. Respondent allowed the children to stay in Mexico for two years and four months, which is long enough to create a "settled purpose" that this was the children's new habitual residence-if not by clear consent, then at least by clear acquiescence. Mozes, 239 F.3d at 1081. Similarly, Respondent's own testimony indicated that he knew the children were only coming to visit the United States for two weeks and that they would return home to Mexico to start the school year. Regardless of his reasons, the Court found that not unlike the grab-and-run parents in Feder and Ohlander, the Respondent utilized his own illegal version of grab-and-run law, taking matters into his own hands and running down a bus to wrongfully retain his children. He testified that he stopped the bus because he wanted his full two weeks of visitation, not to keep them permanently. Respondent's attempt to reestablish their U.S. habitual residence failed, because wrongfully retaining children for two months before their mother filed her Petition did not create a new "settled purpose" and change the habitual residence from Mexico. Respondent continued to assert that Petitioner was the initial abductor back in April 2010 when she left for Mexico. Even assuming the truth of this assertion, the Court found that the Respondent within the first year of their wrongful taking could have sought a legal remedy for their return. Importantly, he did not. He sought no legal remedy for their return, including failing to file his own Convention petition. As the Tenth Circuit clearly directed in Ohlander, this Court is to evaluate the current petition in only one direction: "whether the respondent's removals of a child are wrongful." Ohlander, 114 F.3d at 1540. The Court's consideration of "whether the petitioner's removals of the child were wrongful" would be "antithetic[al] to the Convention's intent as a whole." Therefore, Respondent's arguments concerning his efforts to regain his children, made years too late after the children had become well established in a new habitual residence to which he consented by his actions, and made without the required framework of a Convention petition, fell short. Thus, the court found that the habitual residence was Mexico.

The Court found that Mexican law, as outlined in the Civil Code for the State of Durango, Mexico, uses a concept called "patria potestas " ("parental authority/responsibility") to determine rights of custody. United States courts have determined that patria potestas creates rights of custody, not rights of access, and begins from birth. Whallon v. Lynn, 230 F.3d 450 (1st Cir.2000). The Court found that Petitioner had rights of custody under Mexican law as described in Whallon that far exceeded mere rights of access as described in Abbott, and that Respondent breached those rights by retaining the children in the United States. Petitioner enrolled the children in school, met their physical and religious needs, participated in their day-to-day lives, made decisions about their care, and lived with them as their primary caretaker until the August 2012 retention. The Court found that under the Convention, Petitioner's care of the children until their removal demonstrated her exercise of those rights of custody at the time of their retention in the United States. The Court determined that Petitioner met her burden, and that Respondent did not establish any exceptions. It granted her petition.