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Friday, December 8, 2017

Velarde v Gurgan, 2017 WL 4570304 ( W.D. Texas, 2017)

In Velarde v Gurgan, 2017 WL 4570304 ( W.D. Texas, 2017), the district court granted the Petition of Leticia Isabel Velarde for the return of her son A.G. to Mexico. 

Petitioner Leticia Isabel Velarde was born in Laredo, Texas and was a United States citizen. Petitioner grew up in Mexico and was also a Mexican citizen. Her family resided in Nuevo Laredo, Mexico. Respondent Johnathan Asher Gurgan was a United States citizen. Petitioner came to the United States in 2002 for employment and stayed until 2013.  On November 8, 2012, A.G. was born in New Braunfels, Comal County, Texas. He was a United States citizen. Petitioner testified that she believed he was also a Mexican citizen by virtue of his birth to a Mexican mother. In August 2013, Respondent enrolled in University of Texas San Antonio (“UTSA”). The family lived together in an apartment in New Braunfels from the time of A.G.’s birth in November 2012 until October 2013, when they moved together to Mexico. During this time, they discussed moving to and living in Mexico. Due to financial issues, the cheaper cost of living in Mexico, the desire to be near Petitioner’s family in Mexico while being close to the university in Laredo, Texas, and possibly a desire to remove themselves from issues with Child Protective Services, Petitioner and Respondent jointly agreed to move the family to Mexico in October 2013. Although it was undisputed that the parents jointly agreed to move to Mexico, the duration of the planned move was disputed. Respondent testified that, at the time of the move, he did not have the intent to abandon the United States to take permanent residence in Mexico. Petitioner testified that they were “finally moving to Mexico” as they had talked about ever since they met, and her intention at the time of the move was not to return to the United States. She testified that they had visited often and always talked about living there, and when A.G. was born it seemed like the perfect opportunity for her to go back to her family and friends there with her son and husband. In mid-2016, Petitioner started discussing the possibility of divorce with Respondent. Respondent was upset and was opposed to getting a divorce. Petitioner testified that Respondent’s attitude about staying in Mexico changed sometime after June 2016. She testified that her intent to stay in Mexico had not changed. On November 25, 2016, Petitioner filed for divorce in Mexico (3rd Judicial District of Nuevo Laredo, Tamaulipas, Mexico). On November 30, 2016, Respondent said he was taking A.G. to the park but instead took the child to San Marcos, Hays County to the residence of his mother. A.G. was four years old and had been living in Mexico with his parents continuously since he was 11 months old. Before taking A.G. to San Marcos, Respondent researched the requirements of the Hague Convention, and he left some of his research and notes behind in Mexico. Next to the sentence “Therefore, failing to consider shared parental intent could potentially cause the court to overlook whether a parent is acting unilaterally to alter what had been previously agreed to by both parents,” which Respondent partially underlined, Respondent wrote, “we had agreed to stay in Mexico if possible from an employment perspective but I knew that Letty would not want to return. I didn’t either except for the divorce idea.” Also in the margin he had written “this is our house”; “1 yr lease”; “intention.” 

  On December 5, 2016, Respondent filed a suit for possession and custody in 22nd District Court, Hays County.  He stated that he did not want a divorce. On July 13, 2017, the Mexican court issued a divorce decree. On August 21, 2017, this proceeding was filed. The only real dispute was whether Mexico or the United States was the country of A.G.’s habitual residence immediately prior to the removal in November 2016. Petitioner contended that the parties agreed to move to Mexico permanently, and that Respondent unilaterally changed his mind in 2016 when his behavior and religious views changed and Petitioner began discussing a possible divorce. Respondent contended that he and Petitioner never agreed to move to Mexico permanently, but only for a limited duration while Respondent completed his education, and that A.G.’s country of habitual residence had always remained the United States. 
The district court noted that in 2012, the Fifth Circuit “join[ed] the majority of circuits that ‘have adopted an approach that begins with the parents’ shared intent or settled purpose regarding their child’s residence.’ ”  “This approach does not ignore the child’s experience, but rather gives greater weight to the parents’ subjective intentions relative to the child’s age” and “parents’ intentions should be dispositive where ... the child is so young that ‘he or she cannot possibly decide the issue of residency.” In such cases, “the threshold test is whether both parents intended for the child to ‘abandon the [habitual residence] left behind.” Absent shared intent, prior habitual residence should be deemed supplanted only where the objective facts point unequivocally to this conclusion. Context, rather than specific periods of time spent in one location or another, is key. Berezowsky v. Ojeda, 765 F.3d 456, 467 (5th Cir. 2014). 

The Court did not agree with Respondent’s version of the facts, and a preponderance of the evidence indicated that the family abandoned Texas and intended to and did make A.G.’s home in Mexico indefinitely or permanently. Rather than finding an intent to move for a maximum amount of time, the Court found that the initial move was intended to be permanent, or alternatively for a minimum of two years. The Court further found that, at least by 2015, the parents had mutually agreed to stay in Mexico if possible, and there was no agreement to return to the United States at any specific time. The undisputed evidence is that the family abandoned the only “home” A.G. had had in Texas and there was no indication that anyone viewed him as having his habitual home in Texas from which he was temporarily absent while living in Nuevo Laredo. Rather, the evidence showed that the “two parents reached an agreement to raise [A.G.] in Mexico” permanently or indefinitely. Berezowsky, 765 F.3d at 471. Because A.G.’s home in November 2016 was Mexico, and both parents intended it to be Mexico at that time, the Convention dictated that Mexico was his country of habitual residence and A.G. had to be returned there. 

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