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Friday, June 7, 2019

Chirinos v Umanzor, 2019 WL 2287975 (N.D. Texas, 2019) [Honduras] [Habitual residence] [Grave risk of harm] [Petition granted]

          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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