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Saturday, December 22, 2018

Vite-Cruz v Sanchez, 2018 WL 6680514 (D. South Carolina, 2018)[Mexico] [Discretionary return] [Re-abduction]

          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.