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Monday, September 17, 2018

Flores v Alvardo, 2018 WL 3715753 (W.D. North Carolina, 2018) [El Salvador] [Habitual Residence] [Petition granted]

          In Flores v Alvardo, 2018 WL 3715753 (W.D. North Carolina, 2018) the district court found that Petitioner established by preponderance of the evidence a prima facie case warranting the return of V.S.G.M., a minor to El Salvador. Respondent failed to establish by clear and convincing evidence an affirmative defense proving a grave risk of harm to V.S.G.M. 

          Petitioner and Respondent married in El Salvador in December of 2012. In 2013, Respondent gave birth to a child in San Salvador, El Salvador. As Petitioner tells it, he lived with Respondent and Child in a familial residence in El Salvador until Respondent left with the Child in January of 2017. When Respondent left, she originally told Petitioner that she and the Child were going to stay with her aunts for a week in La Union, El Salvador. The truth, however, was that Respondent took the Child to the United States after disconnecting her cell phone.  Petitioner found out Respondent’s location after receiving a video showing her crossing the United States border with the Child. Petitioner promptly filed an abduction report to the local authorities. Petitioner and Respondent remain married today and no court in either El Salvador or the United States has entered an order regarding custody.
The Child was removed from El Salvador to the United States on or about on or about January 8, 2017. The Petitioner filed the petition on August 25, 2017, which is within one year of the Child’s removal from El Salvador. At the hearing, the parties also stipulated that the Minor’s habitual residence is in El Salvador.

          The Court found that Petitioner succeeded in establishing his prima facie case by a preponderance of the evidence. It also found that Respondent failed to prove an affirmative defense under the Convention’s grave risk exception or failure-to-exercise-custody exception. Respondent presented no other evidence besides her own testimony and what allegations she posited were more geared to the best interest of the Child rather than the relevant query before the Court.

          The Court rejected Respondents Article 13(a) defense, Failure to Exercise Custody Rights. Respondent’s argument was that no custody order granted Petitioner custody rights over the Child. However, Petitioner successfully refuted this argument. Under El Salvador law, the parents of a child share custody jointly unless a custody order finds otherwise. Family Code, arts. 206, 207. Respondent admitted that no custody order exists that altered the default joint custody rule. As such, Respondent’s argument cut against the very assertion she attempted to make.

          Respondent also argued that returning the Child to El Salvador constituted a grave risk of physical or psychological harm. Respondent alleged that Petitioner habitually smoked marijuana and drank heavily around the Child. At one point, Respondent claimed that the Child was caught with a bag of marijuana in his mouth. Respondent also claimed that Petitioner endangered the Child by drinking and driving with him in the car. At least once, Respondent stated that the Child was in the car when Petitioner was involved in a minor car accident. Finally, Respondent claimed that Petitioner would argue with her and began kicking her out of the house.  Respondent states that Petitioner would “violently” remove her from the hoes when she refused to go without her son.

          The district Court found Respondent’s claims general and unsubstantiated. Respondent provided no other evidence besides her word, which the Court found less than credible. While Respondent stated that neighbors and a nanny witnessed the violence Petitioner subjected her to, she presented none of these parties as witnesses during the hearing. Respondent admitted that Petitioner showed no physical violence toward the Child.

          The Court was faced with Respondent’s testimony of drug and alcohol use against Petitioner’s testimony of a happy family that was abruptly separated by Respondent’s wrongful removal of the Child. Respondent faced a higher evidentiary standard than Petitioner and quite simply failed to produce sufficient evidence to corroborate her claims.

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