In
Sarabia v Perez, 225 F.Supp.3d 1181 (D. Oregon, 2017) Plaintiff Anita Castro
Sarabia (“Castro”) filed a complaint requesting the court order the return of
KMRC, her seven year old son with defendant Bulmaro Ruiz Perez (“Ruiz”), to
Mexico.
The district
court found that in 2008, Castro and Ruiz met. They lived together for a few
months before separating. Two months after the separation, Castro learned she
was pregnant with Ruiz’s child, KMRC. When Castro informed Ruiz she was
pregnant, Ruiz immediately told Castro he would help support the child. Even
before KMRC’s birth, Ruiz began making monthly child support payments to Castro.
Castro gave birth to KMRC in April 2009. Ruiz testified that although he worked
during the week and lived about an hour’s drive away, he visited KMRC on many
weekends. Ruiz testified he would take KMRC shopping to buy toys and “little
things like that.” While Ruiz clearly was not a daily fixture in KMRC’s life
the Court found that his testimony more credible than Castro’s. Ruiz was at the
hospital and held KMRC on the date of his birth. Castro’s attempts to minimize
Ruiz’s involvement in KMRC’s life while in the United States were not credible
in light of all of the evidence.
In 2011, Castro decided to go to Mexico. Ruiz
testified the parties got into an argument in mid–2011 when Castro called Ruiz
and informed him she was taking KMRC to Mexico to visit her parents. Ruiz, who
did not want KMRC going to Mexico, informed Castro that taking KMRC without his
consent was illegal. Castro continued pressing Ruiz on the subject of the
visit, although she was unwilling to commit to a time frame with respect to the
length of the trip. At one point, Castro said she would go for three months.
Later, she said six months. As Castro had not seen her parents in a long time,
Ruiz ultimately consented to the request. The Court found the parties reached
an agreement that Castro could take KMRC to Mexico on a seven month trip. Because
Castro needed Ruiz’s permission to take KMRC out of the country, on October 25,
2011 Ruiz signed a notarized statement giving Castro permission to take KMRC
“on their trip to Pachuca Hidalgo, Mexico. The trip is scheduled for departure
on November 2nd, 2011 with an approximant [sic] 7 month stay, returning on May
15, 2012.”
By May of
2012, contrary to her agreement with Ruiz, Castro had essentially settled in
Mexico. KMRC at this time was one month past his third birthday. Castro married
in August 2012 and lived on her parents’ ranch in a rural area outside of
Mexico City. Ruiz asked Castro to send KMRC back to the United States in
accordance with the parties’ agreement. Ruiz testified he told Castro “I want
to see the boy. Send him to me.” Castro did not agree but said she would send
KMRC at some later point if Ruiz gave her an extension. Ruiz testified,
convincingly, that he really had no choice at this time but to agree to an
extension. On June 15, 2012, Ruiz signed a second notarized permission slip. This slip extended the Mexico trip, “scheduled
for departure on November 2, 2011 with an approximate returning date of May 15,
2014.” The court found that by June 2012, Castro made the unilateral decision
to keep KMRC in Mexico.
Ruiz
testified he called Castro attempting to speak with his son. But Castro usually
made excuses why Ruiz could not talk to KMRC. For instance, Castro would say
KMRC was sleeping or visiting with his grandparents. With Castro limiting even
phone calls between Ruiz and his son, and with Castro simply not returning in
accordance to the original agreement, Ruiz had to agree to the two year
extension as his best hope for his son to someday return to the United States. Ruiz
consistently held the desire and belief that KMRC would one day return home to
live permanently in the United States. During the entire time KMRC remained in
Mexico, Ruiz continued to make relatively consistent child support payments to
Castro. Like the first deadline to
return, the second deadline came and went. Eventually, by September 2015,
Castro decided to send KMRC to live in Oregon with her sister for two months.
Castro, her sister, and her parents all testified the purpose of this trip was
for KMRC to receive medical treatment for a neck issue. Castro sent KMRC,
accompanied by his grandparents, back to the United States. Nearly four years
had passed since six year old KMRC last set foot in the United States. Ruiz
provided a notarized permission slip for KMRC to travel. The Court found that Ruiz
by this point would sign pretty much anything if, in his mind, it increased his
chances of seeing his son.
The district
court found that the child’s habitual residence was the United States. Castro
made the unilateral decision to change KMRC’s country of habitual residence
from the United States to Mexico. Ruiz never consented or acquiesced to that
change. Instead, Ruiz always firmly wished for KMRC to return to live in the
United States. The courts reading of Mozes, along with practically no evidence
of KMRC’s acclimatization in Mexico, led to this conclusion. The court noted that a young child may acquire
a new habitual residence in one of two ways: (1) through the parents’ shared
settled intention to abandon the initial habitual residence; or (2) if “the
objective facts point unequivocally to a person’s ordinary or habitual
residence being in a particular place.” There was no dispute that when KMRC was born,
he was a habitual resident of the United States. KMRC was born in Oregon. Both
of his parents had lived in Oregon for years and, at least at that time, had no
intention of leaving. KMRC then spent the next 30 months or so in the United
States.
In Mozes, 239
F.3d at 1076–77 the court described four scenarios commonly arising in Hague
cases. This case involved multiple scenarios described in Mozes. When Castro
first took KMRC to Mexico, the parties agreed on a “specific, delimited period”
of seven months. After those seven months, Castro simply decided to stay in
Mexico with KMRC. The parties then negotiated, for lack of a better term, on an
extension. Castro, however, held all the cards in this negotiation. Ruiz could
not leave the country and simply had to agree to whatever Castro suggested.
Agreeing to whatever terms Castro supplied represented Ruiz’s only chance for
KMRC’s return to the United States. Ruiz never abandoned the United States as
KMRC’s country of habitual residence. But shared parental intent is not the
only way a child can acquire a new habitual residence. At some point, a child
obtains a new habitual residence if “the objective facts point unequivocally to
a person’s ordinary or habitual residence being in a particular place.” Courts look to a child’s acclimatization to a
new country and to all the facts of the particular case in determining how
deeply rooted the child’s ties are to the new country. Regarding KMRC’s
acclimatization in Mexico from 2012 to 2016, other than a few isolated
statements from Castro and her parents that KMRC was “happy” in Mexico, there was
literally no evidence from Castro about how KMRC acclimated to Mexico. Ruiz,
however, presented evidence that KMRC did not acclimatize to life in Mexico.
The only credible evidence demonstrated KMRC never really acclimated to life in
Mexico. The facts demonstrated that rather than acclimating to life in Mexico,
KMRC instead developed PTSD and never felt entirely safe there. Castro failed to establish that Mexico was
KMRC’s habitual residence in October 2015. Because KMRC’s habitual residence
remained the United States, Castro’s petition for return was denied.
No comments:
Post a Comment