Garcia v. Pinelo, --- F.3d ---- (2015), 2015 WL 9300618 (7th Cir., 2015)[Mexico] [Rights of Custody] [Patria potestas][mature child exception]

  In Garcia v. Pinelo, --- F.3d ---- (2015), 2015 WL 9300618 (7th Cir., 2015)  Raul Salazar Garcia and Emely Galvan Pinelo, were both Mexican citizens. Their child D.S., was born in Monterrey, Nuevo León, Mexico in 2002. In 2006, a Nuevo León court entered a custody order recognizing Gal-van and Salazar as D.S.’s parents. The court awarded physical custody of D.S. to Galvan and gave Salazar weekly visitation rights. In late 2012, Galvan requested Salazar’s assistance in obtaining a passport and visa for D.S. to visit the United States. She intended to visit relatives in Texas and then to take D.S. to either Disney World or Disneyland. Before that trip took place, however, she became engaged to an American citizen named Rogelio Hernandez, whom she married in July 2013. Around this time, she decided that she wanted to move with D.S. to the United States. While Galvan had told Salazar about her initial plans to travel with D.S. to the United States as a tourist, she did not advise him of her change in plans. Salazar became suspicious, however, when he saw news of Galvan’s engagement on Facebook. That led to a meeting among Galvan, Salazar, and D.S. on July 30, 2013, at a Starbucks in Monterrey. Galvan and Salazar agreed then that D.S. would move to Chicago with his mother and stay there for one school year. What was not clear was what was to happen at the end of that year. Salazar recalled that the parties agreed that D.S.’s wishes would be dispositive, and Galvan thought that the two parents simply agreed to conduct further discussions. Ultimately  Salzar filed a petition for return with the Mexican Central Authority who transferred the petition to the United States Department of State, which filed it in the district court on December 2, 2014. . The district court granted the petition. The Seventh Circuit affirmed.

The Seventh Circuit held that (1) the Hague Convention is no exception to the general rule, reflected in Federal Rule of Civil Procedure 44.1, that an issue about foreign law is a question of law, not fact, for purposes of litigation in federal court; (2)  that Salazar had the necessary custodial right (referred to in Mexico either by its Latin name, patria potestas, or occasionally by its Spanish name, patria potestad ) over D.S. at the time when Galvan refused to permit his return to Mexico. Because D.S.’s habitual residence was Mexico, Galvan’s retention of D.S. was wrongful under the Convention; and (3) the district court had adequate reason to refuse to defer to D.S.’s indications that he prefers to stay in the United States. .

The Court noted that the  district court appointed a guardian ad litem for D.S. At first, D.S. did not indicate a preference for either Mexico or Chicago. Over time, however, his views evolved. In late April 2015, D.S. told his guardian that he wanted to stay in Chicago. The district court conducted an in-camera hearing with D.S.,by then 13 years old, to ascertain his views. D.S. told the judge that he preferred to stay in Chicago because it had better schools and opportunities, was safer, and he did not want his mother to be forced to pay Salazar’s costs and fees. He indicated that he wanted to finish eighth grade in Chicago, but that if he were not admitted to a good high school after eighth grade, he might return to Mexico. While he stated a preference for remaining in Chicago, he did not object to returning to Mexico. At some point while all this was happening, Galvan’s had overstayed their tourist visas and had no other basis for staying in the United States. This meant that she probably could not travel outside the United States, even to visit D.S. This news prompted Galvan to request a second in-camera hearing between the judge and D.S. She believed her immigration difficulties would change D.S.’s mind: since she would be unable to visit him in Mexico, it would be very difficult for D.S. to see his mother, possibly for a very long time. The district court obliged. During the second hearing, D.S. more clearly objected to returning to Mexico. While he gave several reasons for doing so, he also indicated that he would not object to returning if Galvan’s immigration situation were quickly resolved and she could travel freely between the United States and Mexico.

After a hearing the district court granted summary judgment for Salazar. It found as a matter of fact that when Salazar and Galvan met in the Monterrey Starbucks in July 2013, they agreed that it would be D.S.’s decision whether to remain in Chicago after one school year had passed. It also found that Mexico was D.S.’s country of habitual residence. Applying the law of the Mexican state of Nuevo León, the court found that Salazar had the right of patria potestas over D.S., and that this qualified as a “right of custody” for purposes of the Convention. This meant that as of the summer of 2014 D.S. was wrongfully retained. The court found that D.S. had eventually objected to returning to Mexico, and that he was sufficiently mature. It nonetheless declined to give effect to D.S.’s wishes, because it determined that doing so would not serve the purposes of the Convention. It thus ordered D.S. to be returned to Mexico.

The Seventh Circuit  observed that the doctrine of  patria potestas is a gender-neutral legal regime that regulates the relationship between parents (or parent-like figures) and their children. The court has recognized patria potestas as a right of custody” within the meaning of the Convention. Altamiranda Vale v. Avila, 538 F.3d 581, 587 (7th Cir.2008). Galvin denied that Salazar has such a right on two bases. Primarily, she asserted that he never possessed the patria potestas right over D.S.;and that any patria potestas right he may have held was extinguished by a 2006 custody agreement. The Court rejected both arguments. The Court observed that some courts have held that patria potestas may be extinguished by a custody agreement. See, e.g., Gonzalez v. Gutierrez, 311 F.3d 942, 954 (9th Cir.2002), abrogated by Abbott, 560 U.S. at 10, 22; see also Avila, 538 F.3d at 587. None of these decisions, however, cite any Mexican law for this proposition, nor did if find any basis for it in the Civil Code for Nuevo León. The Court held that patria potestas cannot be lost through a custody agreement. Even if it were theoretically possible for a parent to lose patria potestas through a custody agreement, this custody agreement would not suffice.  

  The Court pointed out that the district court  had the discretion to refuse to return D.S. to Mexico if Galvan proved by a preponderance of the evidence that D.S. “object[ed] to being returned and ha[d] attained an age and degree of maturity at which it is appropriate to take account of [his] views.” Hague Convention art. 13, T.I.A.S. No. 11670 (mature-child exception). The district court found that D.S. was sufficiently mature to invoke the exception, and we see nothing in the record to cast doubt on that assessment. The district court also found that D.S. eventually stated his objection to being returned to Mexico during the second in-camera hearing. Both formal prerequisites for this exception were therefore satisfied. The Seventh Circuit held that nonetheless, the exception did not automatically apply in such a case, and it retained discretion to follow the rule rather than the exception. A district court retains discretion not to apply an exception, and that its decision either way is reviewed only for abuse of discretion. Here, the district court decided that it would be inconsistent with the aims of the Convention to refuse to repatriate D.S. It  noted D.S.’s ambivalence before he finally objected to returning to Mexico, and the fact that D.S.’s objection was founded “almost entirely” on his belief that his mother would not be able to travel to and from Mexico because of her immigration status. The court was particularly struck by the fact that D.S. stated that he would not object to return if his mother’s travel to and from Mexico were not impeded, based on the assumption that she could obtain the proper visa within six months. The court’s greatest concern was it believed that the application of the mature-child exception in this case would reward Galvan for problems of her own making. Her immigration status was unstable because she (and D.S.) overstayed their tourist visas. It reasoned that allowing D.S. to stay in the United States would allow Galvan to benefit from her own violations of the Convention and U.S. immigration laws. The district court was concerned that exercising the exception in this case would set a precedent that allows a parent to prevent the return of a child by problems of his or her own making. It reasoned that an inquiry into a litigant’s subjective intentions is a difficult endeavor, and one potentially subject to abuse by savvy litigants. It would be difficult for a court to smoke out bad faith in these situations. Neither the Convention nor ICARA forbids the district court to take these concerns into account when it makes its ultimate decision.