In Vite-Cruz v Sanchez, 2018 WL
6680514 (D. South Carolina, 2018) the district court granted the Petition filed
by Petitioner Jose Luis Vite-Cruz (” Father”) for the return of A.V., a
twelve-year-old child (the “Child”), to his habitual residence of Hidalgo,
Mexico. The Court held a bench trial in
Columbia, South Carolina. Mother was present in the courtroom, and Father was
present via teleconference from Mexico.
Child was born in Charleston, South Carolina, on March 17, 2006. He was a dual-citizen of Mexico and the
United States. Father was a Mexican
citizen and resident. Mother was born in
Mexico; had been a Lawful Permanent Resident of the United States since August
19, 1997; and was a resident of Richland County, South Carolina, where she
resided with the Child. Child resided
for some time in South Carolina from his birth in 2006 until he began residing
in the state of Hidalgo, Mexico, with Father. The parties stipulated Child was
a habitual resident of Hidalgo, Mexico, at the time Mother removed him on or
about December 1, 2016. Father had rights of custody over Child under Mexican
(Hidalgo) law. Both parties agreed that Father was exercising his custodial
rights at the time Mother removed Child from Mexico. As a result, Mother’s
removal of Child from Mexico was a breach of Father’s custody rights. Based on
the stipulations and facts properly before the Court, Father proved a prima
facie case for the return of Child under the Hague Convention by a
preponderance of the evidence.
The Father
and Mother were married in the United States in 2005 while living in Charleston
County, South Carolina. After the
Child’s birth, Father and Mother traveled to Mexico with the Child in 2006. For
approximately four months, the family lived together in Zacualtipán de Ángeles,
Hidalgo, Mexico. Thereafter, Mother and
the child traveled to North Charleston, South Carolina. For a period of time
while Father remained in Mexico, the Child lived with Mother and her parents in
the North Charleston area. In 2008, Father returned to North Charleston, South
Carolina. At that time, Mother was in a relationship with another man and was
pregnant with his child. After Father returned to North Charleston, he and
Mother lived apart but shared the care and custody of Child. Child would stay
with Mother for a few days and then go to stay with Father for a few days.
Mother fell on difficult financial times. When this happened, Child went to
live with Father.
Over the next twelve to eighteen months, Child continued to live
with Father in North Charleston. Child continued to live in North Charleston
with Father until 2010. In 2010, Father advised Mother that he was going to
move back to Hidalgo, Mexico with Child. Father testified that Mother did not
visit Child or help raise him and that the reason for wanting to return to
Mexico was to be closer to Child’s paternal grandmother, who could provide him
assistance with raising Child. Because Mother opposed the proposed move, Father
did not move back to Mexico immediately after their initial discussion.
However, when Mother did not visit Child for another month or so, Father
proceeded with the plan to move back to Hidalgo, Mexico. On or about April 2010, Father and Child
returned to the same city where the family had lived before: Zacualtipán de
Ángeles, Hidalgo, Mexico. At the time of this move, Father had been Child’s
custodian and caregiver for almost two years in North Charleston. Father
continued to be the sole custodian of Child in Mexico from April 2010 until
November 28, 2016. During the roughly
six and one-half years Father and Child lived together in Mexico, Mother did
not make any effort to support, visit, or communicate with Child or Father. The earliest message from
Mother to Child admitted at trial was dated November 8, 2016. When Mother first
contacted Child through Father’s Facebook account on November 8, 2016, she
asked for his address so she could send Child some gifts. Mother received the
address several days later. Shortly
after Mother began her communications with Child, she made a plan to visit him
later that month in Mexico. Before she left for Mexico, Mother did not advise
Child or Father she was going to see Child in late November 2016. On or about
November 28, 2016, Mother arrived in her former hometown in Mexico. At the time
she arrived, Child was ten years old and a well-adjusted young boy who spoke
only Spanish. Mother then asked Father if she could take Child to the United
States to visit with her and her family. Father made it clear he would not
consent to Mother taking Child outside of Mexico. However, after a visit to the
local police station, Father did consent to Mother taking Child for a short
visit with her to a beach in a nearby Mexican town, provided she return Child
at a specified date, time, and location. Child also understood and agreed he
would go on a short beach trip to get to know his Mother. Mother agreed to
these very specific and limited terms. Contrary to her express agreement with
Father, Mother took Child from Mexico to the United States without Father’s
consent and without telling him they were leaving the country. Father
immediately requested that she return Child as promised; however, Mother
refused to do so. Unbeknownst to Father, Mother took Child to North Charleston,
South Carolina. Shortly after their arrival, on or about December 8, 2016,
Mother enrolled Child in fifth grade at Pinehurst Elementary in Charleston
County School District One. Child began fifth grade on or about December 12,
2016. Mother did not list Father on the school’s registration form as the
father of Child. Despite Father’s repeated
requests through telephone calls and electronic messaging, Mother refused to
provide her and Child’s address or any specific information about his
wellbeing. Messages from Mother to Father during this time also indicate that
she was willfully preventing Father’s contact with Child and taunting him when
he asked to speak to his son. Less than
two months later, on January 28, 2017, Mother withdrew Child from Pinehurst
Elementary and moved from North Charleston to Columbia, South Carolina.
The Court found that a preponderance
of the evidence did not support the finding that Child was well-settled and
that application of this narrow defense was not warranted. See Alcala, 826 F.3d
at 170. Mother argued that Child was
sufficiently mature to permit the Court to consider his objections to returning
to Mexico. The Court concluded that, regardless of his actual maturity, Mother
failed to present sufficient evidence for the Court to apply this narrow
defense. Mother failed to present any evidence showing that Child had a
particularized objection to living in Mexico sufficient for the Court to take
his views into consideration. The Court held that Mother had not carried her
burden in proving consent or acquiescence.
The court stated that analyzing the
affirmative defenses did not end the Court’s inquiry. Instead, “the courts
retain the discretion to order return even if one of the exceptions is proven.”
Miller v. Miller, 240 F.3d 392, 402 (4th Cir. 2001) (quoting Feder v.
Evans-Feder, 63 F.3d 217, 226 (3d Cir. 1995)); see also Hague Convention art.
18 (”The provisions of this Chapter do not limit the power of a judicial or
administrative authority to order the return of the child at any time.”);
Lozano v. Alvarez, 572 U.S. at 18 (Alito, J., concurring) (discussing factors
relevant to the exercise of discretion). Exercising its discretion, even in the
event one of the affirmative defenses were to apply, the Court concluded that
equitable justifications warranted the Court’s exercise of its discretion to
return Child to Mexico.
This alternative holding was
buttressed by the Court’s factual finding that Mother abducted Child. While
Mother’s motives may not have been malicious, the consequences of her actions could
be enormous. As the Supreme Court of the United States has noted, An abduction
can have devastating consequences for a child. Some child psychologists believe
that the trauma children suffer from these abductions is one of the worst forms
of child abuse. A child abducted by one parent is separated from the second
parent and the child’s support system. Studies have shown that separation by
abduction can cause psychological problems ranging from depression and acute
stress disorder to posttraumatic stress disorder and identity-formation issues.
A child abducted at an early age can experience loss of community and
stability, leading to loneliness, anger, and fear of abandonment. Abductions
may prevent the child from forming a relationship with the left-behind parent,
impairing the child’s ability to mature. Abbott v. Abbott, 560 U.S. 1, 21
(2010).
The Court considered a number of
factors in reaching its equitable decision. First, Mother had taken steps to
sever Child’s relationship with Father, including not disclosing where Child
was living, not allowing Child to have any regular contact with the Father,
taunting Father about her possession of Child, and not allowing Father to
meaningfully participate in Child’s life. Second, if Child remained in the
United States, it would be virtually impossible for him to see Father ever
again, at least until he reached the age of eighteen. Father was financially
prohibited from coming to the United States to see Child or attend a custody
hearing. Critically, Father did not have legal status to permit him to visit
Child in the United States, while there are no legal prohibitions keeping
Mother from visiting Child in Mexico.
Finally, an order denying Father’s
request to return Child would have the effect of sanctioning Mother’s
unilateral action to abduct Child in violation of Mexican and international
law. The evidence presented indicated Father only consented to Mother visiting
with Child for a short, specified time period in Mexico. Mother admitted she
agreed to these terms but then chose to ignore her agreement so she could take
Child to another country where she knew Father could not travel. Put plainly,
this was the exact type of behavior that the Hague Convention seeks to prevent.
Mother argued that her actions were justified
because Father was the first to take Child to another country without consent.
However, courts have consistently rejected this same argument when faced with a
parent who “re-abducts” a child instead of seeking redress under the
Convention. See Moreno v. Zank, 895 F.3d 917, 924 (6th Cir. 2018)
(characterizing re-abduction as a disregard for Convention and threat to a
child’s well-being); see also Kijowska v. Haines, 463 F.3d 583 (7th Cir. 2006)
(”To give a legal advantage to an abductor who has a perfectly good legal
remedy in lieu of abduction yet failed to pursue it would be contrary to the
Hague Convention’s goal of discouraging abductions by denying to the abductor
any legal advantage from the abduction.”).
An order refusing to return Child to
his habitual residence would not only reward the Mother, it could motivate
other parents attempting to settle a difficult family situation to resort first
to self-help and the protections of a foreign country rather than seeking the
aid of the local authorities. This Court could not allow Mother to take matters
into her own hands and effectively minimize or even terminate Father’s
relationship with Child by bringing him to the United States. Instead, the
Court had to follow the dictates of the Hague Convention and the equitable
considerations present in this case.
Based on the foregoing, the Court
alternatively concluded that equitable justifications warranted the Court’s
exercise of its discretion in granting the Verified Petition and ordering the
return of Child to Mexico.
