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Tuesday, February 7, 2017

Ambrioso v. Ledesma, 2017 WL 27454 (D. Nevada, 2017)[Mexico] [Acquiescence] [Petition denied]

In Ambrioso v. Ledesma, 2017 WL 27454 (D. Nevada, 2017) the Court denied the Petition of Vladimir Gonzalez Ambrioso (Gonzalez) against Garcia for the return of his child, 2 year old child, Francisco, from the United States to Mexico. Francisco was born on February 7, 2014. In July 2014, Gonzalez purchased a home in the Gran Santa Fe II neighborhood of CancĂșn. Garcia and Francisco. Gonzalez and Delia had divorced, but they remained close friends. .Gonzalez had simultaneous relationships with both women. Gonzalez maintained separate households for each partner, lived with Delia, and visited Garcia regularly. On March 28, 2016, after a  breakup of the couple’s relationship Garcia and her son departed for the United States.  On or about April 4 and 5, 2016, Gonzalez sent Garcia a series of text message demanding the return of Francisco. Once Gonzalez learned that Garcia and Francisco were in the United States, he formulated a plan to visit, or possibly join, them in the United States. The couple rekindled their romance. In text messages, Gonzalez sent gifts, contemplated purchasing a home, and had other family members visit on his behalf. Before leaving for the United States, Gonzalez sold his car and Delia sold the home she shared with him. The district court found that after April 4, 2016 Gonzalez made genuine efforts to establish a home for Garcia and Francisco in the United States; and from April 2016 to June 2016, Gonzalez subjectively intended to allow Francisco to remain in the United States indefinitely. In late June 2016, Gonzalez attempted to enter the United States. He and Delia were detained and eventually removed from the United States.In August 2016, Gonzalez retained Nevada counsel, who filed his Hague application. After his removal, Gonzalez’s attitude changed. To that end Gonzalez, started legal proceedings to have Francisco returned to Mexico. Gonzales claimed that between mid–April and late June, 2016, his agreement with Garcia that Francisco should become a permanent resident of the United States and grow up here was a ruse. The court found that for this two and one half month period before Gonzalez’s failed attempt to enter the United States, he in fact intended to allow Francisco to remain in the United States indefinitely.

The court found that Gonzalez established a claim for return under 22 U.S.C. § 9003(e)(1).  However, if also found that the  Acquiescence exception applied. “[A]cquiescence under the Convention requires either: [1] an act or statement with the requisite formality, such as testimony in a judicial proceeding; [2] a convincing written renunciation of rights; or [3] a consistent attitude of acquiescence over a significant period of time.” Friedrich v. Friedrich, 78 F.3d 1060, 1070 (6th Cir. 1996). “Courts have held the acquiescence inquiry turns on the subjective intent of the parent who is claimed to have acquiesced.” Rehder v. Rehder, No. C14–1242 RAJ, 2014 WL 7240662 at* 5 (W.D.Wa. Dec. 19, 2014).The court’s acquiesce analysis focused on the third option: “a consistent attitude of acquiescence over a significant period of time.”12 Friedrich, 78 F.3d at 1070. From the case law the  court distilled two rules: 1) action is a stronger indicator of acquiesce than inaction, compare Giles, 2012 WL 704910 at *7 (finding inaction over a 12–month period was acquiescence), with Culculoglu, 2013 WL 4045905 at *11(finding a 4–month period of active support was acquiescence), and 2) the more unambiguous the indictors of acquiesce are, the shorter a period of the time the petitioner’s behavior needs to continue before a court may find that the petitioner has acquiesced to the removal. See Culculoglu, 2013 WL 4045905 at *11. When these rules are applied this action, the court found that Gonzalez did acquiesce to Francisco remaining in the United States indefinitely. Consistent with his behavior throughout his relationship with Garcia, Gonzalez had a change of heart once he learned that Francisco was in the United States. He quickly reestablished contact with Garcia and rekindled their romance. Garcia credible testified that Gonzalez commented that it would be better if Francisco grew up in the United States and that on at least one occasion the couple had phone sex. From about mid–April 2016 to late June 2016, Gonzalez began helping mother and son get established in Las Vegas: 1) he contacted a realtor to look for a home; 2) he sent gifts and financial support; and 3) he sent his brother Elpidio to establish businesses in the Las Vegas area. The court concluded that Gonzalez’s actions were motivated by his subjective intent to allow Garcia to keep Francisco in the United States. He provided financial support for his child including taking the extraordinary step of looking for a house for him. He maintained contact with the child and Garcia and on at least one occasion expressed a desire for Francisco to remain in the United States. Further supporting this conclusion, Gonzalez took steps to relocate to the United States. He explored the possibility of setting up businesses in the United States, he sold his car, and had Delia sell their current home. In short, for a period of two and a half months, Gonzalez demonstrated a consistent attitude of acquiescence. Given the unambiguous nature of Gonzalez’s actions, the tumultuous nature of the couple’s relationship, and the court’s factual findings regarding Gonzalez’s subjective intent from April 2016 to June 2016, the court found that two and one half months was a sufficiently significant period of time to support a finding of acquiescence by a preponderance of the evidence.

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