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Friday, September 15, 2017

Gutierrez v Juarez, 2017 WL 3215659 (D. Arizona, 2017)[Mexico] [Habitual Residence][Petition Granted

          In Gutierrez v Juarez, 2017 WL 3215659 (D. Arizona, 2017) the district court granted the Petition for the return of child A to Mexico.

          Zaragoza and Respondent Octavio Ramirez Juarez were the parents of Child A.  They were Mexican citizens. Child A was born in Phoenix, Arizona on July 23, 2006. Zaragoza and Ramirez never married. In November 2009, Zaragoza and Child A returned to Mexico. Ramirez remained in the United States. It was agreed that Child A would remain in Mexico with Zaragoza. Beginning in 2013, Zaragoza and Ramirez agreed that Child A would visit Ramirez in the United States for one month each summer. Child A spent a month visiting Ramirez in the summers of 2013, 2014 and 2015, each time returning to Zaragoza in Mexico at the conclusion of the visit. Child A again came to the United States in the summer of 2016, under circumstances which Zaragoza and Ramirez disputed. According to Zaragoza, Ramirez had been pushing throughout 2015 and 2016 for Child A to come live with him in Phoenix for the 2016–17 school year, but Zaragoza refused, as she believed that Ramirez did not have the time to take good care of Child A. Ultimately, Ramirez’s parents came down to Zaragoza in Mexico on July 20, and Zaragoza agreed to another summer visit, on the understanding that Child A would return in a month. Zaragoza testified that she packed one bag for Child A, containing about eight changes of clothes and no other personal belongings. Child A left for the United States on July 21. In August, a week before Child A was to return to school in Mexico, Zaragoza testified, Ramirez told Zaragoza that he would keep Child A in the United States so that she could learn English. Ramirez, on the other hand, testified that Zaragoza and Ramirez agreed that Child A would spend two years in the United States and that they would determine what the next steps were depending on how Child A was doing in school after those two years. In September 2016, Zaragoza filed a Hague Convention application with the Central Authority of Mexico, seeking the return of Child A.

          The district court found that Zaragoza has demonstrated that Child A was wrongfully retained in the United States when her habitual residence was Mexico. The retention occurred on August 13, 2016, when Ramirez informed Zaragoza that he intended to keep Child A in the United States. See Mozes, 239 F.3d at 1070 & n.5 (citing case where “mother wrongfully retained children by announcing her intent not to return them” to their home country).  Where, as here, children already have a well-established habitual residence, simple consent to their presence in another forum is not usually enough to shift it there. Rather the agreement between the parents and the circumstances surrounding it must enable the court to infer a shared intent to abandon the previous habitual residence, such as when there is effective agreement on a stay of indefinite duration. While the parents disputed exactly how long Child A was intended to remain in the United States, neither asserted that it was supposed to be an indefinite stay. Zaragoza said that they agreed to a definite stay of one month; Ramirez said that they agreed to a definite stay of two years. Prior to that, Child A had spent the previous seven years of her life in Mexico (with the exception of summer visits to the United States). There was thus no “settled intent” on the part of the parents for Child A to abandon her prior habitual residence of Mexico. While there had been a geographic shift with respect to where Child A was living, there was only a short period of time between her arrival in the United States and the retention. Nothing after that matters, because “a parent cannot create a new habitual residence by wrongfully removing and sequestering a child.” Miller v. Miller, 240 F.3d 392, 400 (4th Cir. 2001).

          The court also found that petitioner had custody rights under Guanajuato law and was exercising them. It also found that Ramirez could not demonstrate that any of the “narrow exceptions set forth in the Convention applied.

          The district court indicated primary dispute on which evidence was presented and on which the case turned was whether Zaragoza consented to or acquiesced in the retention of Child A in the United States. In examining a consent defense, it is important to consider what the petitioner actually contemplated and agreed to in allowing the child to travel outside its home country. The nature and scope of the petitioner’s consent, and any conditions or limitations, should be taken into account. The fact that a petitioner initially allows children to travel, and knows their location and how to contact them, does not necessarily constitute consent to removal or retention under the Convention. Baxter v. Baxter, 423 F.3d 363, 371 (3d Cir. 2005). The parties disputed the extent to which Zaragoza consented to Child A’s stay in the United States. Zaragoza asserted that she agreed to a summer visit; Ramirez asserted that Zaragoza agreed to a stay of two years.  As an affirmative defense, the burden of demonstrating this exception was on Ramirez. Based on the courts credibility determination, he did not carry that burden by a preponderance of the evidence.

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