In
Martinez v Cahue, 2016 WL 3457617 (7th Cir, 2016) the first seven years of
A.M.'s life, he lived in Illinois with his mother, Jaded Mahelet Ruvalcaba
Martinez. He was born in Chicago in 2006. A.M.'s father, Peter Valdez Cahue,
lived nearby, although he and Martinez never married. They entered into a
private arrangement, never formalized through a court order, for custody and
visitation rights. In 2013, Martinez moved to Mexico and took A.M. with her.
About a year later, Cahue persuaded Martinez to send A.M. to Illinois for a visit;
he then refused to return A.M. to Mexico.
The district court held an
evidentiary hearing, after which it determined that there was sufficient
evidence that A.M. had acclimatized to Mexico during the year he lived there with
his mother. It also found, however, that Cahue and Martinez did not jointly
intend that A.M. should move to Mexico in the first place. It said, Martinez
took A.M. to Mexico without Cahue's permission or knowledge (presumably about
the permanence of the move—Cahue admitted that he knew about the trip).
Emphasizing the absence of shared parental intent, the district court held that
Illinois had remained A.M.'s habitual residence during the year he spent in
Mexico, and thus Martinez's petition had to be dismissed.
The Seventh Circuit reversed. It concluded
that the district court asked the wrong question, and thus came to the wrong
answer. It found that at all relevant times, Martinez had sole custody of A.M.
under Illinois law, while Cahue had no right of custody either under Illinois
law or the Convention. That meant that only Martinez's intent mattered, and it was
plain that Martinez wanted A.M.'s habitual residence transferred to Mexico.
Cahue's retention of A.M. in Illinois was therefore wrongful and he had to be
returned to Mexico.
The Court found that Martinez's
initial removal of A.M. to Mexico in July 2013 was not subject to any legal
restrictions that might allow Cahue's intent to affect the analysis. Cahue
never obtained rights of custody for Convention purposes under these statutes,
nor was Martinez's right to relocate A.M. constrained by them. In the absence
of a court order, Illinois law presumes that the mother of a child born out of
wedlock has sole custody. See 720 ILCS 5/10–5(a)(3) (2013) Cahue did not obtain
a custody order during the time that mattered. When Martinez moved to Mexico
with A.M., she may have violated the terms of the couple's private custody
agreement. But the move did not violate a right of custody for Convention
purposes. Martinez's removal of A.M. to Mexico was therefore not wrongful. Nor
did it violate Illinois law. Because only Martinez has rights of custody under
the Convention, and Illinois law did not in any way restrict her right to move
away from the country with her son, only her intent was of legal significance.
The second key consideration in
determining habitual residence is the extent to which the child has
acclimatized to one or the other place. The district court found that by August
2014, A.M. had acclimatized to Mexico. While A.M. had spent most of his life in
Illinois, that fact is not dispositive. (That would create the kind of
formulaic, ratio-based test that appears nowhere in the Convention.) The
Seventh Circuit found that by the end of his first year in Mexico, he displayed
all of the indicia of habitual residence, including friends, extended family,
success in school, and participating in community and religious activities.
Based on Martinez's intent that he change
habitual residence, the lack of any right on Cahue's part to veto her
preference, and A.M.'s own successful acclimatization, the Court conclued that Mexico was A.M.'s habitual residence at
the time Cahue acted to retain him in the United States. Because the district court found that A.M.'s
habitual residence was Illinois, it had no reason to evaluate the wrongfulness
of Cahue's 2014 retention of A.M., or any possible defenses that Cahue might
have raised.
Cahue admitted that he retained A.M. in Illinois without
Martinez's consent. In doing so, he violated her rights of custody under
Mexican law. See Civil Code for the State of Aguascalientes, arts. 434, 437,
440–41; Garcia, 808 F.3d at 1164 (noting that the right called patria
potestas is “a ‘right of custody’ under the Convention” that is conferred
to both parents, and whose “central values” are “fairness and reciprocity”).
Because Cahue's retention of A.M. in
July 2014 was wrongful, A.M. had to be returned to Martinez unless Cahue can
show that either of the two defenses he presented applies: that A.M. is now so
“settled in [his] new environment” that he should not be returned, see Convention
art. 12, T.I.A.S. No. 11670, or that Martinez “subsequently acquiesced in the
... retention,” see id. art. 13(a). The record did not support the applicability of
the “settled-child” defense, and did not not support a finding that Martinez
ever acquiesced in Cahue's actions.
