Bobadilla v Cordero, 2014 WL 3869998 (M.D.N.C.) [Mexico] [Now Settled] [Discretion to Order Return] [Petition granted]

In Bobadilla v Cordero, 2014 WL 3869998 (M.D.N.C.)   Ms. Ramos and Mr. Cordero were citizens of Mexico. They never married. Their child, B.F.S.R.,  was born in Cabarrus County, North Carolina, in 2006, and was a citizen of both Mexico and the United States. Neither Ms. Ramos nor Mr. Cordero had legal immigration status in the United  States.   In December 2009, Ms. Ramos and B.F.S.R. moved to Zacatecas, Mexico, where the parties had planned to build a small house on Mr. Cordero's parents' land. Mr. Cordero paid for the airplane tickets. The parties agreed that Mr. Cordero would join Ms. Ramos and the child after he earned more money in North Carolina to fund the construction. Ms. Ramos and the child lived with Mr. Cordero's family, and Ms.Ramos oversaw the construction of the parties' new home, the exterior of which was completed in March or April of 2010. Ms.Ramos and B.F.S.R. travelled to Tijuana to stay with her family. At some point while Ms. Ramos was in Tijuana, the parties ended their romantic relationship because of Mr. Cordero's refusal  to come to Mexico. In August 2010, the parties agreed that B.F.S.R. would travel to North Carolina to stay with Mr. Cordero for a visit. Before B.F.S.R. left Mexico, Mr. Cordero signed a notarized statement agreeing to return B.F.S.R. to Ms. Ramos in Tijuana on January 14, 2011,  and provided the statement to Ms. Ramos. Mr. Cordero paid for B.F.S.R.'s travel expenses.   Mr. Cordero did not return B.F.S.R., despite Ms. Ramos's requests and demands. Since then, B.F.S.R. has lived with Mr. Cordero, Mr. Cordero's brother, and Mr. Cordero's sister, her husband, and her daughter. He attends school in Concord, North Carolina, he plays soccer, and he sees friends and Mr. Cordero's family regularly. Mr. Cordero has allowed only intermittent telephone and internet-video contact between the child and Ms.  Ramos. In September 2011, Ms. Ramos attempted to cross over the United States border using a false passport and was arrested and deported.

In March 2012, Mr. Cordero filed a custody petition in North Carolina district court. That same month, Ms. Ramos filed a Hague application to the Mexican authorities, for which the custody suit was stayed. Petitioner Rosa Ramos Bobadilla sought the return of her minor child, B.F.S.R., to Mexico. Ms. Ramos, who was not employed, searched for an attorney to assist her, eventually obtaining representation pro bono from Legal Aid of North Carolina. She filed this petition on March 11, 2014.
The Court held an evidentiary hearing  at which Mr. Cordero appeared in  person and Ms. Ramos appeared by video feed.  The Court found that B.F.S.R. was habitually residing in Mexico as of January 14, 2011, as the  shared intent of the parents was to settle in Zacatecas. The parties agreed that they would move to Zacatecas and build a house on Mr. Cordero's parents' land. Mr. Cordero purchased one-way tickets for Ms. Ramos and the child. Ms. Ramos and the child traveled to Mr. Cordero's parents' home, and they began building the house, for which Mr. Cordero sent money. Even Mr. Cordero testified that he intended to join Ms. Ramos and the child in Zacatecas. They had no specific plans to return to the United States; indeed, return would have been difficult since neither parent could do so legally. Because Mexico was the habitual residence of the child and the other elements of a prima facie case were 
established without dispute, the Court concluded that Mr. Cordero wrongfully retained B.F.S.R. 
within the meaning of the Hague Convention.

         Mr. Cordero asserted the "well-settled" affirmative defense. Ms. Ramos did not dispute that she failed to file her Hague petition within one year of the removal, but she contended  that B.F.S.R. was not well-settled in North Carolina. The district court concluded that a preponderance of the evidence did not show that B.F.S.R. was well-settled and that application of this narrow defense was not warranted. Mr. Cordero testified at the hearing in Spanish through an interpreter and the child's report cards from school were sent home in Spanish, establishing that B.F.S.R. lives in a Spanish-speaking household and community. Mr. Cordero also testified that the child's English gets better every day, making it clear that Spanish was his primary language. This indicated both that the child had not completely acclimated to a culture in which English is the predominant language and that a return to Mexico would not cause language problems common in many cases where the "well-settled" defense is applied. The child's life in North Carolina was not so different from his life in Mexico 
that it would be "worse to order the child to be uprooted."     Belay v. Getachew, 272 
F.Supp.2d 553, 562 (D.Md.2003). Moreover, there were significant aspects of the child's life in North Carolina that were not stable.  The child had required therapy in North Carolina to deal with sadness over his parents' separation. Despite this, Mr. Cordero had not allowed the child to have contact with his  maternal grandparents and uncle in Cabarrus County and had not allowed the child to have  regular telephone or video-internet contact with his mother. This interference with family relationships is inherently disruptive and was particularly disruptive here. See  Lozano, ---U.S. at ----, 134 S.Ct. at 1236 (noting with approval that "American courts have found as a factual matter that steps taken to promote concealment can also prevent the stable attachments that make a child 'settled' " and citing cases.) This compared negatively to B.F.S.R.'s situation when he resided in Mexico, where he maintained relationships with both parents' families in that country. Finally, Mr. Cordero's immigration status made B.F.S.R.'s living situation tenuous, as his primary caretaker could be arrested and deported to Mexico at any time. See  In re R. V.B., --- F.Supp.2d ----, 2014 WL 3058250 at *12 (E.D.N.Y.July 7, 2014) (noting that "the immigration status of [the abducting parent] is a factor that disfavors finding the Child is settled"). Weighing all of these considerations, the Court found that Mr. Cordero had not established the  "well-settled" defense by a preponderance of the evidence.

          The district court observed that a Federal court retains the discretion to return a child, despite the existence of a defense, if return would further the aims of the Convention. (See  Miller, 240 F.3d at 402; England v. England, 234 F.3d 268, 270–71 (5th Cir.2000); Friedrich II, 78 F.3d at 1067 (citing Feder, 63 F.3d at 226) (citing Pub. Notice 957, 51 Fed.Reg. 10494, 10509 (1986)); Antunez-Fernandes v. Connors-Fernandes, 259 F. Supp. 2d 800, 812 (N.D. Iowa 2003) , the Court  found that equitable justifications warranted the Court's exercise of its discretion even if  B.F.S.R. was well-settled. Ms. Ramos was unable to legally come to the United States for a custody hearing, whereas there were no legal impediments to Mr. Cordero's return to Mexico, where he was a citizen, for participation in a custody hearing there. Mr. Cordero also limited or even prevented opportunities for Ms. Ramos and her family to maintain a relationship with B.F.S.R. after the wrongful abduction. Antunez-Fernandes v. Connors-Fernandes, 259 F.Supp.2d 800, 815 (N.D.Iowa 2003) (considering abducting parent's attempts to sever meaningful relationship with petitioner in exercising discretion to return child).   Ms. Ramos had convincingly shown that her delay in filing the petition should not weigh against her as the Court balances the equities. Ms. Ramos initiated efforts to retrieve B.F.S.R. soon after he was  wrongfully retained and even attempted to illegally re-enter the country so she could see her son. Moreover, Mr. Cordero was financially supporting Ms. Ramos up until their breakup, Ms. Ramos was indigent, and she diligently pursued pro bono representation. Mr. Cordero abducted B.F.S.R. with knowledge that Ms. Ramos did not have the legal or financial means to  enforce her rights. See, e.g .,  Belay 272 F.Supp.2d at 561;cf.  Lozano, — U.S. at ----, 134 S.Ct. at 1236-1240 (Alito, J., concurring) (approving consideration of concealment in exercise of equitable discretion.)