In Chirinos v Umanzor, 2019 WL 2287975 (N.D. Texas, 2019) the district court granted the Petition of Nahum Mendieta
Chirinos for the return of his two children, Y.A. and I.N., to Honduras.
Petitioner was a resident of Honduras
and resided there. Respondent and the children, Y.A. and I.N., initially
resided in Honduras, but immigrated to the United States in late 2017.
Respondent and the children resided in Irving, Texas. Y.A. was born on March 29, 2012, and I.N. was
born on October 8, 2015. Both children were born in Honduras and lived there
until November 2017. In November 2017, Respondent and the children left
Honduras and entered the United States in December 2017. [Petitioner did not
give consent, written or otherwise, to Respondent’s removal of the children
from Honduras. No court, in Honduras or elsewhere, had granted Respondent full
custody of the children or has stripped Petitioner of his custody rights.
Respondent and the children remained in the United States. Petitioner commenced this action on October
9, 2018, seeking the return of the children to Honduras.
The trial testimony revealed that Petitioner
and Respondent met at a dance in Honduras in 2006 and began a relationship. The
two were romantically involved until Petitioner illegally immigrated to the
United States later that year. Petitioner remained in the United States until
he was deported in 2010. After his deportation, Petitioner returned to Honduras
and the romantic relationship between Petitioner and Respondent resumed.
Respondent became pregnant with the couple’s daughter, Y.A., in 2011. After
Respondent learned that she was pregnant, Petitioner and Respondent began
living together at the home of Petitioner’s mother. Y.A. was born on March 29,
2012, and lived with Petitioner and Respondent at the home of Petitioner’s
mother until at least April 2015. Petitioner testified that, on November 27,
2017, he borrowed a bicycle and went to see the children at Respondent’s
grandparents’ home. Upon arriving, Petitioner allegedly heard Respondent
speaking to a “coyote” with whom Respondent planned to travel to the United
States. Petitioner testified that, after hearing this, he told Respondent the
he did not want the children going to the United States. Petitioner testified
that he returned the next day and found that Respondent and the children were
gone. Petitioner then sought legal help to secure
return of the children.
The Court found that Petitioner
established a prima facie case for return under the Hague Convention and
that Respondent had not shown that any defense to return applies. Therefore, the
Court ordered the return of Y.A. and I.N. to Honduras. The court noted that to establish a case for return under the Hague
Convention, a petitioner must show that: “the respondent removed or retained the child
somewhere other than the child’s habitual residence”; “the removal or retention
violated the petitioner’s ‘rights of custody’ under the habitual-residence
nation’s laws”; and “at the time of
removal or retention those rights were actually exercised, either jointly or
alone, or would have been exercised but for the removal or retention.” Larbie v. Larbie, 690 F.3d 295, 307 (5th Cir. 2012). A
petitioner must prove each of these elements by a preponderance of the
evidence. Id.
Here, the
parties stipulated that, prior to November 2017, neither child resided in any
country other than Honduras. The parties also agreed that Petitioner never gave
consent or otherwise acquiesced to the removal of the children from Honduras. The
last location of shared intent for the children’s residence was Honduras. The
parties agreed that no Honduran court had entered an order granting Respondent
full custody of the children, and there was no evidence that any other formal
custody agreement between the parties exists. Therefore, the Court looked to the custody
rights provided by Honduran law. Article 187 of the Honduran Family Code
provides that “parental authority belongs to both parents jointly.” “Parents in
the exercise of parental authority have the right to exercise guidance, care
and correction of their children, and provide them in line with the evolution
of their physical and mental faculties, the direction and guidance that is
appropriate for their development.” Additionally, parental authority includes
the right to legally represent the child, “exercise their care and custody,”
feed, assist, educate, and manage their assets. Finally, Honduran law provides
that, when both parents exercise parental authority, each parent has a ne
exeat right: a right to consent before the other parent can take the child
out of the country. Article 101 of the Honduran Code of Childhood and
Adolescence requires that “[i]f parental authority is exercised by both
parents, the written authorization of the other is required if just one parent is
traveling with the child during [a] trip [outside of Honduras].” The Supreme
Court has held that a “ne exeat right is a right of custody under the
Convention.” Abbott, 560 U.S. at 10. The Court found that Petitioner had custody
rights in the children and that Respondent’s removal of the children violated
these rights.
Finally, the Court
found that Petitioner was actually exercising his custody rights at the time of
the removal or would have exercised those rights but for the removal. Larbie, 690 F.3d at 307. The leading case setting out the standard under which courts are
to consider this element is Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir.
1996) (“Friedrich II”). The court held,
“[t]he only acceptable solution, in the absence of a ruling from a court in the
country of habitual residence, is to liberally find “exercise” whenever a
parent with de jure custody rights keeps, or seeks to keep, any sort of
regular contact with his or her child.” Id. The Friedrich II
court continued: [I]f a person has valid custody rights to a child under the
law of the country of the child’s habitual residence, that person cannot fail
to “exercise” those custody rights under the Hague Convention short of acts
that constitute clear and unequivocal abandonment of the child. The Fifth
Circuit has adopted the standard articulated in Friedrich II and has
emphasized that “even occasional contact with [a] child constitutes ‘exercise’
of [custody] rights.” Sealed Appellant v.
Sealed Appellee, 394 F.3d 338, 345 (5th Cir. 2004). The testimony of
the parties was directly conflicting on this point. Petitioner testified that
Respondent left his mother’s home in mid-to-late 2016 and that he visited the
children almost daily thereafter. Respondent testified that she moved out in
April 2015 and that Petitioner only saw the children two or three times after
this date. In resolving this disagreement, the Court finds convincing and
credible the accounts of the witnesses supporting Petitioner. In weighing the
testimony, the Court also noted significant inconsistencies in Respondent’s
version of the relevant events. The documentary evidence also supported a
conclusion that Petitioner kept some contact with the children after the time
that Respondent alleged that he did not. Petitioner provided a photograph
showing Petitioner, Respondent, and both children together. Respondent countered
that this was taken during one of the very few instances in which Petitioner
saw the children after she left. Petitioner, however, introduced other
photographs that show Y.A. standing in front of the distinctly colored walls of
Petitioner’s mother’s home. One such photograph, posted on Respondent’s
Facebook page one day after Y. A’s fourth birthday, which was March 29, 2016,
clearly suggested that Petitioner remained in contact with the
children—contrary to the testimony of Respondent. Petitioner also offered
photographs showing I.N. in front of the same distinctly colored walls of his
mother’s home, and in a distinctly colored hammock which appeared in
photographs of his mother’s home. This evidence strongly contradicted
Respondent’s testimony regarding the extremely limited number of times that
Petitioner allegedly saw I.N.
With the above directive in mind, the Court found that Petitioner
established that he was actually exercising his custody rights prior to the
removal of the children. He kept at least the required occasional contact with
the children that is necessary to find that he was actually exercising his
custodial rights. Sealed Appellant, 394 F.3d at 345. And the evidence did not suggest
that Petitioner took acts that constitute clear and unequivocal abandonment of
the children. Freidrich II, 78 F.3d at 1066. Additionally,
the evidence suggested that Petitioner was exercising his ne exeat right
prior to the removal by withholding permission for the children to leave the
country.
Respondent
raised the grave risk defense. Under this defense, return may be excused where
there is a “grave risk” that return would “expose the child to physical or
psychological harm or otherwise place the child in an intolerable situation.” Lozano, 572 U.S. at 5. A party opposing a child’s return must prove the existence of
“grave risk” by clear and convincing evidence. Madrigal v. Tellez, 848 F.3d 669, 676 (5th Cir. 2017). The
alleged harm “must be a great deal more than minimal” and “greater than would
normally be expected on taking a child away from one parent and passing him to another.
“Domestic violence can satisfy the defense when the respondent shows by clear
and convincing evidence a “sustained pattern of physical abuse and/or a
propensity for violent abuse.” Ermini v. Vittori, 758 F.3d 153, 164 (2d Cir. 2014). Sustained
spousal abuse can, in some instances, also create such a risk. Soto v. Contreras, 880 F.3d 706, 713 (5th Cir. 2018). The Court
found that Respondent had not shown by clear and convincing evidence that
return to Honduras would expose the children to a grave risk of harm.
Respondent testified that Petitioner abused her physically and psychologically.
However, Respondent identified only one specific instance in which Petitioner
allegedly abused her physically—when Petitioner allegedly pushed her after she
confronted him about his involvement with another woman. This unsupported
testimony, even if taken as true, did not establish a pattern of sustained
spousal abuse by clear and convincing evidence. And Respondent presents no
evidence that Petitioner ever abused either of the children.
Respondent also testified
that she found cocaine in Petitioner’s pocket three times, and that she worried
that Y.A. would find the drugs and accidently consume them. Petitioner
testified that he has never used drugs. Petitioner would take both children on
rides on his motorcycle. Petitioner’s supporting witnesses all testified that,
in their opinion, Petitioner was a good father. Petitioner’s girlfriend, also
testified that she trusts Petitioner to be around her 13 and 10-year-old
children. The Court held that the conflicting evidence regarding alleged past
drug use or rides on a motorcycle did not establish the existence of such a
future harm by clear and convincing evidence. Respondent did not meet her
burden to prove the grave risk defense.
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