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Monday, April 15, 2019

Quintero v de Loera Barba, 2019 WL 1386556 (W.D. Texas, 2019)[Mexico] [Habitual Residence] [Petition granted]

          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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