Padilla v. Troxell, 2016 WL 4098588 (W.D. Virginia, 2016) [Mexico] [Consent Defense Established] [Petition Denied]

In Padilla v. Troxell, 2016 WL 4098588 (W.D. Virginia, 2016) on May 23, 2016, Petitioner Xochitl Jazmin Velasco Padilla (“Petitioner”) filed a Petition claiming that her son, J.V., was brought into this country without her consent and in contravention of her custody rights by the child’s legal father, Respondent Joe Richard Troxell. The district court found that J.V. was wrongfully removed (or retained) from his habitual residence in violation of her custody rights. However, Respondent established that Petitioner consented to J.V. being brought into this country. Because consent of the petitioning parent is a defense to the Petition, and because Respondent had adequately shown that Petitioner consented to J.V.’s removal from Mexico, the petition for return was denied. Although Respondent was not J.V.’s biological father, he was listed on J.V.’s birth certificate as his father and was listed with the full consent of both Petitioner and Respondent. Under Mexican law, as stipulated by the parties, Respondent enjoyed the same parental rights as Petitioner. In December of 2014, Petitioner and Respondent discussed Petitioner’s desire to live in the United States and whether J.V. would be better off with Respondent. According to Respondent, Petitioner said her other two sons were born in the United States, so they were U.S. citizens, but that she would have a problem moving with J.V. Respondent agreed to help Petitioner get papers for J.V. and bring him to the United States. After J.V.’s passport was secured in December 2014, J.V. returned with Respondent to his home in Acapulco. A few months later, Respondent acquired a “fiancee visa” for Blanca Leyva, which permitted Leyva to enter the United States for ninety days to marry Respondent. According to Respondent, it would have taken too long to get a visa for J.V., so he paid a smuggler to take the three-year-old J.V. across the U.S./Mexican border.  J.V. was picked up during a raid by Border Patrol near El Paso, Texas. After a review of his documents, J.V. was released into Respondent’s custody, and Respondent, J.V., and Leyva settled in Halifax County, Virginia. The Court rejected Petitioner’s story. She agreed that she wanted Respondent on J.V.’s birth certificate, and she agreed that she went with Respondent to acquire a passport for J.V. in December 2014; she contended, however, that Respondent took J.V. without her knowledge or consent. The district court found that the  evidence established that Petitioner consented to his removal and had no objections to J.V. remaining in Respondent’s care so long as Respondent supported her financially. The court pointed out, in a footnote that that “consent” would seem to obviate the “wrongful” element of Petitioner’s prima facie case, but the Convention nevertheless presupposes that one parent may consent to wrongful removal.