Aguilera v. De Lara, Not Reported in F.Supp.2d, 2014 WL 3427548 (D.Ariz.)[Mexico] [Grave Risk of Harm] [Petition granted]

In Aguilera v. De Lara, Not Reported in F.Supp.2d, 2014 WL 3427548 (D.Ariz.)
 Petitioner Alger Ivan Rodriguez Aguilera filed a "Petition for Return of Child under the  Hague Convention." Repondent Gabriela Samaniego De Lara opposed the petition.  Petitioner and Respondent were the parents of a nine-year-old daughter, "I.R.," who was born in Aguascalientes, Mexico in 2004. Petitioner and Respondent were not 
married at the time, but began living together in Aguascalientes after I.R. was born. Respondent  and I.R. moved out of the home in 2006, and, after a period of reconciliation, moved out again in 2008.   Respondent continued to live in Aguascalientes with I.R. until July of 2013. The Petitioner maintained a relationship with I.R. Between 2008 and 2013, I.R. attended a private school in Aguascalientes, had medical insurance, was involved with numerous family members on both sides, and had friends. Using a tourist visa, Respondent left Aguascalientes with I.R. on July 5, 2013, telling Petitioner that she and I.R. would visit Respondent's mother in Arizona for one month and would then return. After arriving in Arizona, Respondent informed Petitioner that she and I.R. would not return. 

Counsel for Petitioner and Respondent agreed that I.R. was habitually resident in Mexico immediately before her removal and that Petitioner had custody rights under Mexican law. Petitioner's verified petition and  supporting affidavit made a sufficient showing that Petitioner was exercising his custody rights  at the time of removal. Given these established facts, Respondent's removal of I.R. was  "wrongful" within the meaning of Article 3 of the Hague Convention and the Court had to order I.R.'s return to Mexico unless Respondent has established one or more of the exceptions.

The district court found that Petitioner was exercising sufficient parental rights to satisfy the requirements of the Convention. After Respondent and I.R. moved out of his home in 2008, Petitioner continued to see I.R. regularly, took her to his parents' home, movies, parks, and out to eat, picked her up from school on occasion, accompanied Respondent and I.R. to the child's doctor appointments, provided medical insurance for I.R., and provided at least some additional financial support. These activities satisfied the custody  requirement of the Hague Convention. This exception, therefore, did  not preclude return of I.R. to Mexico.

 Respondent presented evidence that Petitioner struck her on five different occasions. She did not testify that medical treatment was required on these occasions. Respondent also testified that Petitioner struck her father in the mouth during a disagreement over whether I.R. should spend time with Petitioner. Respondent testified that I.R. was present when her grandfather was struck, and the evidence suggested that I.R. was present on at least one  occasion when Petitioner struck Respondent.    Respondent testified that three of the assaults on her occurred before she and Petitioner separated, which would have been in 2008 or earlier. Two assaults apparently occurred after  their separation. Nor could the Court determine when the assault occurred on Respondent's father. Given the narrowness of this 
exception, and for several factual reasons, the Court could not conclude that Petitioner's assaults  on Respondent and her father satisfied the grave risk requirement. The assaults were directed at Respondent and another adult, not I.R.  In addition, at least some of the assaults, and perhaps all, occurred several years ago. The Ninth Circuit has instructed that the focus must be on the present-whether a grave risk will   exist if the child is returned now. Goudin, 415 F.3d at 1036-37.  Moreover,  Petitioner was not asking to be granted physical custody of I.R. He made clear at the  hearing that he believed Respondent was a good mother and should continue to have full-time custody of I.R. Petitioner simply sought to preserve his rights to have a relationship with I.R. Thus, a return of I.R. to Mexico need not result in her being placed in Petitioner's physical custody.

  Respondent and I.R. testified that Petitioner slapped I.R. on one or more occasions and twisted her arm when he was angry. Respondent and I.R. did not testify that these actions caused serious physical injury or required medical attention. Nor did Respondent or I.R. explain whether these actions were disciplinary in nature or simple assaults.   Petitioner's actions toward I.R. clearly were relevant to the "grave risk" inquiry. The question was whether slapping a child or twisting her arm shows a grave risk of  physical or psychological harm. The Ninth Circuit and other authorities have  instructed that the risk of harm must be grave, not merely serious. In addition, Petitioner did not seek custody of I.R. This fact mitigated, to some extent, any risk that might be presented to  I.R. by Petitioner's past tendency to slap or twist arms. Courts have also recognized that many countries of habitual residence have the capacity to protect children, including Mexico. For these reasons, the Court concluded that this evidence did not meet the high threshold of  clear and convincing evidence that a return of I.R. to Mexico would present a grave risk of physical or psychological harm.

  Respondent testified that she has bonded with I.R. and that separating them would seriously damage I.R. In addition, Respondent presented the testimony of Dr.
Leonard D. Goodstein, a consulting psychologist, that separation of I.R. from Respondent would present a grave risk of psychological harm to I.R.  The Court noted that several courts have held  that separation of a parent and child, although traumatic, is not itself sufficient to satisfy a grave risk exception. See, e.g.,  Charalambous v. Charalambous, 627 F.3d 462, 469-70 (1st Cir.2010);England v. England, 234 F.3d 268, 270-72 (5th Cir.2000) ;   Nunez-Escudero, 58 F.3d at 377. The Court agreed with these decisions. Separation from an abducting parent is a likely consequence in many Hague Convention cases. If the difficulty caused by such separation were deemed sufficient to satisfy the grave risk exception, the purposes of the Convention would be largely frustrated. Parents could carry their children across international borders to obtain an advantage in custody disputes and then defeat return under the Convention by virtue of the fact that return would be traumatic for the child. The Court could not conclude that such a  result was intended by the grave risk exception.

Respondent testified at the hearing that she would not return to Mexico because she did not want to subject herself to the abusive and manipulative actions of Petitioner. The Court asked Dr. Goodstein whether a return of I.R. to Mexico with Respondent would present a grave risk of psychological harm, and he was unable to say that it would. Respondent could choose to separate from her daughter and cause the trauma she claimed was substantial, or she could return to  Mexico and retain physical custody of I.R. (Petitioner testified that he did not seek to obtain physical custody of I.R.). The Court had difficulty concluding that an abducting parent could invoke  the grave risk exception simply by refusing to return to the country of habitual residence with the child. Respondent  failed to show by clear and convincing evidence that an order that I.R. be returned presented a grave risk of physical or psychological harm.

 It was evident during I.R.'s testimony at the hearing that she was bright, capable, and able to  express her views. I.R. stated unequivocally that she did not wish to return to Mexico. When  asked why she said: "I don't like seeing my mom sad and I don't want to be sad  because of that."  When asked leading questions as to 
whether her father frightened her and whether that was a reason she did not want to return to  Mexico, she said yes. When then asked again how she would feel about returning to Mexico, she said: "Really sad and frustrated because my mom would be really sad and I don't want to not be myself. I like being myself." I.R. also testified that she enjoyed her new school, is doing  well, and has many friends, but she did not give these as reasons when asked why she did not want to return to Mexico. The Court concluded that I.R. had not reached the age of maturity sufficient for the Court to rely upon her objection in its ruling.  Her primary reason for not wanting to return to Mexico-that it would make her  mother sad-appeared to be more a reflection of Respondent's feelings than I.R.'s.   It also appeared clear to the Court that I.R. had been influenced in her views by her mother and her mother's parents and other family members.  The Court concluded that Respondent had not shown by a preponderance of the evidence that I.R.'s views were sufficiently independent and based on sufficient age and maturity for the Court  to given them deference. The Petition for Return was granted.