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Wednesday, December 27, 2017
Pena v Serrano, 2017 WL 6542758 (W.D. Texas, 2017)[Mexico] [Habitual Residence] [Patria Potestad] [Petition granted]
In Pena v Serrano, 2017 WL 6542758 (W.D. Texas, 2017) the district court granted Edgar Andres Soto Pena’s petition for the return of his children to Mexico. Petitioner and Respondent were Mexican nationals who married in 2005 in Mexico and were the parents of A.S.E., D.S.E., and S.S.E. The family resided in Mexico until August 2009, when they moved to Austin, Texas, while Petitioner completed a one-year Master of Business Administration program. From May 2010 until October 2012, the family resided in Texas while Petitioner worked in Texas. In October 2012, the family moved to Monterrey, Mexico. A few years later in August 2014, the family returned to Texas. Petitioner returned to Mexico in March 2015. Respondent and the children remained in Texas until July 2015. Upon their return to Mexico, Respondent initiated divorce proceedings. Petitioner and Respondent obtained a divorce in December 2015. The divorce was a voluntary divorce, and the parties agreed to its terms. Per the divorce decree, Petitioner and Respondent agreed that “the care and custody of the under-age children was to be executed by [Respondent], and the legal custody by both parents, during this proceeding and once the sentence has been executed.” They further agreed that their children “shall be under the custody of the female spouse,” and that Petitioner would have coexistence rights, including the ability to visit with his children on Wednesdays after school and every other weekend. The decree also addressed changes in residence. Petitioner and Respondent agreed to notify each other and the court of any change in domicile. They agreed that “[i]n the event [Respondent] changes her domicile to a city other than Monterrey, Nuevo Leon, [Respondent] shall still hold custody of her under-age children, and [Petitioner] shall continue to be entitled to the coexistence rights with his under-age children under the same provisions hereof.” On March 14, 2017, Petitioner and Respondent modified the divorce decree by agreement. That modification addressed Petitioner’s right of access on Wednesdays after school and every other weekend, changing the terms and conditions of those visits. The modification expressly stated that the December 2015 decree, with the exception of the modifications regarding Petitioner’s visitation, otherwise remained unaltered.
In June 2017, Respondent advised Petitioner that she and the children had moved to the Austin, Texas metro. The Mexican court that handled Petitioner and Respondent’s divorce and subsequent modification addressed Respondent’s move to Austin with the children in a document dated October 24, 2017. The Mexican court stated: [N]o change in residence could be carried out unilaterally by the person holding care and custody of the minors, because the ownership of said right does not grant an all-encompassing and exclusive power to determine the place the minors should reside in, this derives from the fact such an important decision should consider the other parent as well, because having full exercise of parental rights, grants the other parent the right to coexist with his children, and even to secure their physical, spiritual and moral upbringing, as well as to prepare them for having a profession or specific activity that may be useful for them, and which may not be accomplished if the minors are moved to a distant place without his consent, therefore it is undeniable both parents must agree to this change by mutual consent. On October 27, 2017, the Secretary of Foreign Relations for the Mexican Central Authority certified that the children’s “removal from their habitual residence in Mexico was wrongful given the fact that there is a valid access rights agreement signed by the parents on December 16th, 2015, before the Fifth Family Court of the First District in Monterrey, Nuevo Leon.” The Secretary also stated that Petitioner and Respondent hold patria potestad rights over the children and that, because they “share parental rights over the children, and those rights include making a decision about the children’s place of residence .... Thus, any unilateral decision made by the mother in contravention thereof is a breach of the rights attributed to the other parent and falls within the definition of illicit retention contained in Article 3 of the Convention.”
The district court concluded that the children’s habitual residence on the date of removal was Mexico based on the fact that this issue was not disputed. Because the Court has found that the children were habitually residing in Monterrey, Nuevo Leon, Mexico immediately before their removal, the rights of custody were determined by the application of the laws of the Republic of Mexico. See Bernal v. Gonzalez, 923 F. Supp. 2d 907, 918 (W.D. Tex. 2012) (Counts, Mag.). It observed that the State of Nuevo Leon, Mexico, in accordance with the Civil Code, adheres to the legal doctrine of patria potestad (meaning “parental rights”), under which “both parents have joint custody rights.” Saldivar v. Rodela, 879 F. Supp. 2d 610, 623–24 (W.D. Tex. 2012). The parties agreed that the Civil Code expressly adopts the doctrine of patria potestad, and the parties do not contest that the divorce decree recognizes and incorporates the doctrine. As to each parent individually, the decree establishes other, different rights and responsibilities. Petitioner is granted “coexistence rights,” which are similar to visitation rights in the United States, Divorce Decree, and provides that Respondent possesses “the care and custody of the under-age children,”. While both Petitioner and Respondent must notify the court and each other of any change in domicile, the parties agreed to the following: “In the event [Respondent] changed her domicile to a city other than Monterrey, Nuevo Leon, the mother shall still hold custody of her under-age children, and the father shall continue to be entitled to the coexistence rights with his under-age children.”
The principal issue presented by the parties was whether this specific language of the decree trumped the doctrine of patria potestad and allowed Respondent to move the children to Austin without violating the Convention. A handful of courts have grappled with the question of whether the language of a divorce decree can supersede the Nuevo Leon Civil Code—and its incorporation of patria potestad—to abolish one parent’s patria potestad rights. After surveying the decisions, this Court declined to conclude that Petitioner’s patria potestad rights—which were expressly bestowed in the divorce decree and given by statutory law— were also simultaneously relinquished by other provisions of the decree. As the Seventh Circuit explained, “[p]atria potestas is central to Mexican family law,” Garcia, 808 F.3d at 1165, and the grant of those rights would not be easily revoked. Whether patria potestad may be extinguished by an agreement or court order may be up for debate, but, in this case, those parental rights were not expressly terminated or abandoned.
The grounds for finding that Petitioner held rights of custody pursuant to patria potestad were even stronger in this case, where, in addition to the Civil Code’s general grant of patria potestad, the divorce decree also awarded the respondent physical custody of the children but provided both parents with patria potestad rights. Patria potestad rights, “specifically incorporated into a custody agreement, amount to ‘rights of custody’ under the Convention.” Gatica, 2010 WL 6744790, at *6 (R. & R.). The divorce decree at issue here confirmed the rights of both Petitioner and Respondent under the doctrine of patria potestad, and those rights amounted to right of custody under the Convention. Petitioner’s patria potestad rights were sufficient to prove a prima facie case of wrongful removal under the Convention. See Saldivar, 879 F. Supp. 2d at 624–25 (“Chihuahua’s institution of patria potestad gives [petitioner] both the right relating to the care of the person of the child and the right to determine the child’s place of residence as contemplated under ... the Convention.”).