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Tuesday, June 6, 2017

Alvarez v Alvarez, 2017 WL 2335600 (D. Md., 2017) [Mexico] [Federal & State Judicial Remedies] [Comity]

In Alvarez v Alvarez, 2017 WL 2335600 (D. Md., 2017) Petitioner, Enedina Alvarez filed her Verified Petition for Return of the Children to Mexico on April 12, 2017. With her Petition for Return, the Mother included a copy of a Custody Agreement dated January 6, 2016 and a copy of the Mexico Appellate Court Decision  issued September 7, 2016.5 The Father filed his Answer on May 10, 2017, denying that the Mother had legal custody over the children and denying that the children had been wrongfully removed from Mexico. By the current Motion in Limine, the Mother requests this Court to accord comity to the Mexico Hague Convention Proceedings.

The district court observed that the Fourth Circuit has noted that “though foreign judgments are not entitled to full faith and credit, comity is at the heart of the Hague Convention.” Smedley, 772 F.3d at 189 (quoting Miller, 240 F.3d at 400). The United States Supreme Court provided a description of comity with some guiding principles in Hilton v. Guyot, 159 U.S. 113, 163-64, 202-03 (1895). Where comity is at issue, a court begins its analysis “with an inclination to accord deference to” a foreign court’s decision of a related Hague petition. Diorinou v. Mezitis, 237 F.3d 133, 145 (2d Cir. 2001). However, a court may decline to extend comity if the foreign court “clearly misinterprets the Hague Convention, contravenes the Convention’s fundamental premises or objectives, or fails to meet a minimum standard of reasonableness.” Smedley, 772 F.3d at 189 (quoting Asvesta, 580 F.3d at 1014). In Smedley, the Fourth Circuit found that the district court had properly found the foreign court’s decision was “at least minimally reasonable,” which was sufficient to accord comity. Id. at 191.

  The Court had access only to the Mexico Appellate Court Decision  which was attached to the Petition for Return. The decision which affirmed the lower court finding, details the facts considered and the law applied. There is nothing in the decision that would indicate that the court either misinterpreted the Hague Convention or was inconsistent with its fundamental premises and objectives. The Mexico courts found that the Father had consented to the children remaining in Mexico. Such a finding was supported by the evidence, such as the custody agreement. These decisions were issued in relation to the Father’s Hague Convention Petition for Return filed in Mexico against the Mother while the children were living with the Mother in Mexico. The appellate decision affirmed a lower Mexico court order finding that the Mother had not wrongfully retained the children in Mexico, and that the Father had consented for the children to live in Mexico with the Mother.

The Father noted that the custody agreement was intended to be temporary and did not entitle the Mother to keep the children in Mexico past the January 11, 2016 scheduled return to the United States. The Mexico court, however, considered this argument in its decision. The Mexico court determined that the vacation circumstances had radically changed due to an episode of violence between the Father and the Mother. The Mexico court further noted that since the Custody Agreement was signed on January 6, 2016, and the parties had full knowledge of the scheduled return date, if it was intended to end on that date, they had the opportunity to so specify but did not. Further, as noted by the Mother in her motion, the Mexico trial court appointed a guardian ad litem for the children, ordered psychological evaluations for the parties, and received extensive testimony and evidence, including documents and affidavits. After considering all of the evidence, the Mexico trial court found that the Mother did not wrongfully retain the children in Mexico, and this finding was upheld after further extensive analysis by the Mexico appellate court. The finding is certainly at least minimally reasonable. Accordingly, the Court directed that it would  accord comity to the Mexico Hague Convention Proceedings.

The Court’s held that its deference to the Mexico Hague rulings that the Mother did not wrongfully retain the children in Mexico did not end the Court’s consideration of whether the Father’s removal of the children from Mexico required an order for their return. Rather, the Court stated it would take into account the reasons for the Mexico courts’ decisions when deciding the instant Petition for Return. There remained other evidence to be considered, including the circumstances surrounding the Father’s removal of the children from Mexico, and the Convention’s defenses and exceptions. The Court held that it would consider all material evidence to be presented at a hearing prior to making an ultimate finding on the Petition for Return.

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