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Friday, December 12, 2014
In Marquez v Castillo, 2014 WL 6883134 ( M.D. Florida) Petitioner and Respondent married in Cuba on or about April 6, 2012. Respondent and J.V.O. moved to Mexico to live with Petitioner on or about December 5, 2012. Respondent requested that Petitioner file the appropriate papers for her to bring her other two children to live in Mexico. Petitioner, Respondent, and J.V.O. lived together in Petitioner's family home until October 2013. J.V.O. spent ten months in Mexico living with Petitioner and Respondent prior to arriving in the United States. On or about October 4, 2013, Respondent left Mexico with J.V.O. without warning to or knowledge of Petitioner. Several days later, the parties began communicating by email. However, the communication stopped and Petitioner has not seen J.V.O. since Respondent removed him from Mexico. Petitioner was J.V.O.'s natural father. Petitioner was born in Mexico, lived in Mexico for his entire life, and was a Mexican citizen. Respondent was J.V.O.'s natural mother. Respondent was born in Cuba and was a Cuban citizen. Respondent lived in Cuba until she moved to Mexico. Her current address was in Tampa, Florida.
The district court found that J.V.O. was habitually resident in Mexico at the time of his removal adopting the methodology of Seaman v. Peterson, 762 F.Supp.2d 1363, 1377 (M.D.Ga.2011)aff'd,766 F.3d 1252 (11th Cir.2014). First, the Court had to determine “[w]hether there [was] a settled intention to abandon a prior habitual residence....”Ruiz v. Tenorio, 392 F.3d 1247, 1252–53 (11th Cir.2004). Courts recognize that where the situation involves a very young child, the shared intent of the parents in determining the residence of their child is of primary concern. The Court was satisfied that Respondent had a settled purpose to abandon Cuba as her and the child's primary residence and to reside permanently in Mexico with Petitioner and the minor child. Respondent presented evidence that she maintained a home in her name in Cuba; the minor child resided in Cuba for over a year prior to arriving in Mexico; and she had two minor children in Cuba. However, the Respondent did agree that she began the process to have her other minor children move to Mexico, that she intended to live with Petitioner in Mexico as a family with J.V.O., and that the Petitioner began construction of additional space in his home to accommodate her other minor children. She also insisted that she wanted to find work while in Mexico. The Court next found there was “an actual change in geography and the passage of a sufficient length of time for the child to have become acclimatized J.V.O. lived in Mexico for approximately ten months with Petitioner, Respondent and Petitioner's extended family. Respondent was his primary caretaker. The child was not registered in school and he traveled to Cuba on a few occasions with Respondent to visit family. Nonetheless, Respondent did not dispute that it was her overall intention to live with Petitioner in Mexico as a family, in spite of her trips to Cuba. The Court found that J.V.O.'s country of habitual residence, prior to his removal to the United States, was Mexico. Mexico was the last country where the parties intended to reside together with the child. Further, when Respondent traveled from Cuba to Mexico, she intended to bring her other children to Mexico to live with her and Petitioner. Respondent also came to Mexico intending to obtain work. The Court determined that petitioner had rights of custody under the laws Mexico. The court examined whether the rights conferred on the petitioner by the doctrine of patria potestas are rights of custody and found that under the the Civil Code of the State of Mexico Petitioner established that he had a custody right to J.V.O. by operation of law under the doctrine of patria potestas. The Court found that Petitioner had custody rights to J.V.O. at the time of removal and that the Respondent's removal of J.V.O. from Mexico to the United States was in violation of Petitioner's custody rights under Mexican law. It also determined that he exercised his custody rights at the time of the removal. Consequently, Respondent's removal was “wrongful.”
Respondent asserted that there was a grave risk of physical or psychological harm to J.V.O. if he was returned to Mexico. She asserted that she feared for her life if she returned to Mexico, that the Petitioner's residence was in a dangerous neighborhood with active drug activity, one of his nephews was a drug addict who consumes drugs outside of the home, and that Petitioner was very controlling and would not allow her to leave the home without an escort. The Court observed that this defense requires the alleged physical or psychological harm to be “a great deal more than minimal.” Only severe potential harm to the child will support this defense. The harm must be greater than what is normally expected when taking a child away from one parent and passing the child to another parent. The court found that petitioner did not establish this defense and granted the petition.