In Quintero v de Loera Barba,
2019 WL 1386556 (W.D. Texas, 2019) the court granted the petition of David Pinto
Quintero for the return of his four children to Mexico.
A few months after getting married in
Mexico City, Pinto and de Loera moved to Colorado so Pinto could pursue
post-graduate education. While in Colorado, de Loera bore two children,
M.A.P.D.L.-1 (now thirteen years old) and A.M.P.D.L. (now ten). Six years
later, the family moved to Guadalajara, Mexico, where they had Z.D.P.D.L. (now
eight). After fifteen months in Guadalajara, the family moved back to Mexico
City. The couple had their fourth child, M.A.P.D.L.-2 (now seven) a year later.
For the next four years, the family lived
alongside Pinto’s parents and other relatives in Mexico City. Though Pinto and
de Loera briefly considered relocating to the Pintos’ house in Florida—even
using its address to apply for credit cards and to obtain a driver’s license, ,
and exploring potential schools for their children, see—they ultimately
decided not to move, partly due to their children’s relationship with their
grandparents, who saw the children multiple times each week and paid for their
education. In October 2015, Pinto and de Loera separated. At the time,
they informally agreed to share custody: Pinto would take the kids to school
three days a week and would further spend every other weekend with them. Six
months later, Pinto filed for divorce. After retaining counsel, consenting to
jurisdiction, and agreeing the family would be based in Mexico City, Pinto and
de Loera entered into a provisional decree giving primary custody to de Loera,
awarding visitation rights to Pinto, and prohibiting either parent from
removing the children from Mexico City without the other’s permission. A year into that provisional decree, de Loera
decamped with the children to live eleven hours away in Nuevo Vallarta. Pinto
went to court to defend his parental rights. When de Loera responded with
allegations of abuse, the Mexican judge interviewed each child in camera to
test her claims. But none corroborated de Loera’s account, instead describing
their father as “nice, good, [and] caring,” noting “they [we]re happy to see
him and they would love to stay and sleep at his home,” and adding “that they
love him very much and that they do want to see him.” They expressly denied
ever being “beaten or told rude words.” In part based on these representations,
in November 2017 the Mexican trial court ordered de Loera to return the
children to Mexico City. But de Loera refused to comply, and continued to
frustrate Pinto’s attempts to visit his children in Nuevo Vallarta. Both Pinto
and de Loera appealed.
While that case was pending, de Loera
brought a separate action against Pinto and his parents that accused them of
domestic and “economic” violence. A second judge interviewed the children in
camera to assess these new allegations. And he found their testimony wholly
noncredible: it was based solely on what “their mother told them,” and the
youngest child admitted de Loera coached her testimony. The judge rejected all
of de Loera’s claims.
On May 21, 2018, a three-judge panel
reversed the November 2017 child custody order. Concluding de Loera caused the
children “serious psycho-emotional harm,” the Mexican appellate court awarded
Pinto primary custody, limited de Loera to visitation rights, and threatened de
Loera with arrest if she did not return the children to Mexico City within
twenty days after their school term ended. The appellate court required de
Loera to allow Pinto to visit and communicate with his children, and prohibited
either parent from removing the children from Mexico without the other’s consent.
Despite de Loera’s repeated—and unsuccessful—collateral attacks, that order
became final. The next week, armed with the Mexican appellate court’s final
order, Pinto traveled to Nuevo Vallarta to visit his children. But he couldn’t
find them. School administrators reported they had been missing all week, and
the house where they lived had been abandoned. Pinto searched for his children
to no avail. On January 30, 2019—eight months after the Mexican appellate court
order—Pinto’s cousin thought he spotted de Loera picking up the children at a
San Antonio Montessori school. Subsequent investigation confirmed de Loera
secreted the children to San Antonio, where they lived in a house held by a
corporation controlled by her mother. On February 19, 2019, considering the
“substantial risk that upon being notified of this proceeding, [de Loera] may
remove the Children from the Court’s Jurisdiction,” Chief Judge Garcia granted
Pinto’s ex parte application for a temporary restraining order (TRO) and for a
writ of execution to take physical custody of the children. The next day—510
days since he last saw them—Pinto was reunited with his four children.
The Court denied de
Loera’s successive requests to appoint an attorney or a guardian ad litem for
the children. Children do not generally participate in Hague Convention
proceedings, and this case lacked the exceptional circumstances where a
guardian ad litem would assist the court, particularly given this case’s
expedited posture—a posture further accelerated by de Loera’s refusal to extend
the TRO. See Chafin v. Chafin, 568 U.S. 165, 179 (2013) (“[C]ourts
can and should take steps to decide these [Hague Convention] cases as
expeditiously as possible, for the sake of the children who find themselves in
such an unfortunate situation.”); cf. Sanchez v. R.G.L., 761 F.3d 495, 507-08 (5th Cir. 2014). And the
Court denied de Loera’s request for the Court to individually interview each
child in camera to consider whether equity compelled modifying the TRO, though
the Court agreed to interview the thirteen-year-old in camera to ascertain the
applicability of the Hague Convention’s mature-child-objection exception.
The Court rejected de Loera’s argument that the children’s
country of habitual residence should be the United States, based on the
family’s short-lived plan to relocate to Florida. Determining
a child’s country of habitual residence turns on “the parents’ shared intent or
settled purpose regarding their child’s residence.” Larbie, 690 F.3d at 310. In cases like this one, where “the child is
too young to decide residency on the child’s own,” the last place “ ‘both
parents intended for the child’ ” to live controls absent “ ‘objective facts
point[ing] unequivocally to [an alternative] conclusion.’ ” Cartes v. Phillips, 865 F.3d 277, 282-83 (5th Cir. 2017) (quoting Delgado v. Osuna, 837 F.3d 571, 578 (5th Cir. 2016)). Under
this test, the children habitually resided in Mexico. A preponderance of
evidence showed Pinto and de Loera most recently agreed to locate their family
in Mexico City. For starters, it was the last place they lived as husband and
wife, raising their family and giving birth to their fourth child over a
five-year period. Because the children habitually resided in Mexico, and
because de Loera admitted removing and retaining her children in the United
States, Pinto proved the first prong of wrongful removal. Pinto had custody
rights under the Mexican trial court’s November 2017 order, or even under the
basic patria potestad authority de Loera concedes he would have under
Mexican law. Pinto showed his children’s
wrongful removal contravened his custody rights. Pinto cleared the final
and “relatively easy” determination that he would have exercised his parental
rights. Larbie, 690 F.3d at 307. After
all, “courts ‘liberally find’ that rights of custody have been exercised unless
evidence demonstrates ‘acts that constitute clear and unequivocal abandonment
of the child.’” The record supported Pinto’s claim that he exercised his rights
under the provisional agreement, and that de Loera repeatedly thwarted his
efforts to exercise his rights under the November 2017 and May 2018
orders.
De Loera tried to invoke the
Convention’s mature-child-objection and grave-risk exceptions. The Fifth
Circuit instructs both should “be applied narrowly,” and only where return does
not further the Convention’s twin aims: “restor[ing] the pre-abduction status
quo” and “deter[ring] parents from crossing borders in search of a more
sympathetic court.” England v. England, 234 F.3d 268, 270-72 (5th Cir. 2000) . Since de
Loera failed to carry the applicable burdens, the Court need not even consider
their applicability. De
Loera had to prove each element of the mature-child-objection exception by a
preponderance of the evidence. See § 9003(e)(2)(B). Specifically, de Loera had
to show that the children had “attained an age and degree of maturity at which
it is appropriate to take account of [their] views,” and that they “object[ ]
to being returned.” Rodriguez v. Yanez, 817 F.3d 466, 474 (5th Cir. 2016). The Fifth
Circuit requires their objection be more than “a mere preference” not to
return—the child must affirmatively claim “living in that country would be
unacceptable.” Rodriguez, 817 F.3d at 477. What’s more, “[a] child’s objection to being
returned may be accorded little if any weight if the court believes that the
child’s preference is the product of the abductor parent’s undue influence over
the child.”
The Convention sets no
explicit threshold age for determining a child’s maturity, leaving courts to
undertake a fact-intensive, case-by-case inquiry. Some Fifth Circuit courts
have considered a thirteen-year-old sufficiently mature, see, e.g., Vasconcelos, 512 Fed. App’x at 407, but others have not, see,
e.g., England, 234 F.3d at 272.
Here, a preponderance of evidence
suggested that no child had attained enough maturity to persuade the Court
their views should control. The Court reaches this conclusion after
interviewing the thirteen-year-old in camera, hearing testimony from each
child’s teacher, and reviewing various writings by each child. Because de Loera
failed to prove her children are mature enough for the Court to account for
their views, the Court did not consider the mature-child-objection exception.
De Loera's own testimony undermined the
grave risk of harm exception. De Loera described the Pinto family’s Mexico City
neighborhood as one of the grandest and most exclusive in the world. And two
Mexican courts—to which this Court owed comity—already rejected any suggestion
that either Pinto or his family abused the children.
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