Monday, April 13, 2015
Margain v Ruiz-Bours, Not for publication, 2015 WL 500685 (9th Cir., 2015) [Mexico] [Now Settled Defense]
In Margain v Ruiz-Bours, Not for publication, 2015 WL 500685 (9th Cir., 2015), Mauricio Fernandez Margain (“Mauricio”) appealed from the district court's denial of his petition for the return of his minor daughter to Mexico. The Ninth Circuit affirmed the judgement of the district court because it concluded that the court correctly determined, without deciding the habitual residence questions, that the child was “settled” within the meaning of Article 12 of the Convention.
The Ninth Circuit observed that Article 12 of the Convention states the general rule that when a court receives a petition for return within one year after the child's wrongful removal, the court shall order the return of the child forthwith. Lozano v. Montoya Alvarez, 134 S.Ct. 1224, 1229 (2014) Article 12 also contains an affirmative defense: “If the abducting parent can show that the petition for return was filed more than a year after the wrongful removal or retention occurred, and ‘that the child is now settled in its new environment,’ the abducting parent can overcome the presumption in favor of return.” Courts may consider a number of factors that bear on whether the child has significant connections to the new country. The respondent must establish the Article 12 exception by a preponderance of the evidence. 22 U.S.C. § 9003(e)(2)(b).
The Court found that the district court's finding that the child's mother, Elsa Lourdes Ruiz–Bours (“Elsa”), moved with her daughter to Tucson in July 2012, more than one year before Mauricio filed his petition in September 2013, is supported by the record, so the district court did not clearly err in so finding. Elsa introduced into evidence a receipt regarding a transaction she conducted at a clothing store in Tucson on July 6, 2012. She also produced evidence of money orders drawn on July 11, 2012 from a bank in Tucson to a residential leasing company, which she explained were the first payment and deposit for the apartment in which they were residing. This evidence, along with the trial testimony, sufficiently establishes that Elsa and her daughter had lived in Tucson for more than one year at the time Mauricio filed his Convention petition. The district court did not clearly err in finding that Mauricio filed his petition more than one year after the alleged wrongful removal.
The district court’s conclusion that the child was now settled had ample support in the record. For example, Elsa's child psychology expert testified that the child had a “normal” emotional status for a five-year old child, and was “well acclimated” to her home and community. He noted that the child had friends with whom “she's very involved,” and that she liked her school and teacher. Other witnesses testified that the child had friends in the Tucson area. The child had lived with Elsa in Tucson for a longer period of time than she did in Mexico, and Mauricio has offered no evidence that her situation or environment was “unstable.” The “length and stability of the child's residence in the new environment” is “ordinarily the most important” factor in the “settled” analysis. It agreed with the district court that the child was settled in her new environment. Moreover, no equitable factors counseled against application of the Article 12 exception, as the record supported the district court's conclusion that Mauricio was not diligent in locating the child in Tucson. See Lozano, 134 S.Ct. at 1237–39 (Alito, J., concurring).