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Wednesday, July 24, 2019

Gutierrez v Sandoval, 2019 WL 3231276 (M.D. Tennessee, 2019)[Mexico] [Age & Maturity Defense] [Petition denied]

In Gutierrez v Sandoval, 2019 WL 3231276 (M.D. Tennessee, 2019) Petitioner Gabriel Alfaro Gutierrez requested that this Court enter an Order directing that the Parties’ minor child, G.A.A.Q., be returned to Mexico. He alleges that the child’s mother, Brenda Janeth Quintino Sandoval, wrongfully removed the child from Mexico sometime between October 27, 2017 and early November 2017. During the course of the trial, the Court took testimony from G.A.A.Q. in chambers, out of the presence of his parents and their attorneys. 

Mr. Gutierrez and Ms. Sandoval married in 2003, and lived in Monterrey, Mexico. Their son, G.A.A.Q., was born in November 2003, and would be sixteen in November 2019. The Parties separated in 2004 and never lived together again. They divorced in 2012. G.A.A.Q.  always lived with Ms. Sandoval. Following the Parties’ separation, by agreement, Mr. Gutierrez had visitation with G.A.A.Q; however, Mr. Gutierrez spent more time with G.A.A.Q. than was actually set forth in the Parties’ agreement. In August 2017, G.A.A.Q. told his father that he did not want to have any more visitation with him. G.A.A.Q. did not like the way that his father asked him questions about Ms. Sandoval’s personal life. Mr. Gutierrez and Mr. Gutierrez’s mother (G.A.A.Q.’s grandmother) also made G.A.A.Q. feel uncomfortable with comments about his weight and the food that he was eating. Ms. Sandoval brought G.A.A.Q. to the United States in November 2017, to live with her, her new husband, and G.A.A.Q.’s half-sibling. After consulting with her Mexican lawyer, Ms. Sandoval was under the impression that she could legally bring G.A.A.Q. to the United States. She did not make any effort to contact Mr. Gutierrez to let him know that she was moving G.A.A.Q. out of the country or to seek his input on the decision. Mr. Gutierrez had no idea where his child was, and went through an extended period, lasting until December 2018, of trying to find G.A.A.Q. Mr. Gutierrez was notified by G.A.A.Q.’s school that his son had been withdrawn from the school. A letter from the school shows the date of withdrawal as October 27, 2017. Mr. Gutierrez desperately searched for G.A.A.Q., and eventually concluded that G.A.A.Q. was in Nashville, Tennessee. He filed his Petition for Return of Minor Child to Petitioner on October 10, 2018. 

The district court found that G.A.A.Q. would be sixteen in November 2019. He attended a local Nashville high school, and recently completed ninth grade with all A’s. He had many friends at school. He got along well with his mother, stepfather, and half-brother, with whom he lived. He did not keep in touch with anyone in Mexico and did not want to return to Mexico.

The Court found that petitioner met his burden to prove a prima facie case of wrongful removal under the Hague Convention and ICARA. The Court found that Ms. Sandoval had not met her burden of proof to establish the well-settled defense or the grave risk of harm defense. 

The Court observed that Article 13 of the Convention gives the Court the discretionary power to refuse return of the child where the child objects and is of sufficient age and maturity that the objection should be taken into account by the Court. The Court must first determine whether the child has sufficient age and maturity, and then evaluate the child’s objection and determine that it is not the result of “brainwashing of the child by the alleged abductor.” 51 FR 10494-01, Hague Int’l Child Abduction Convention, Text and Legal Analysis, III(I)(2)(d); see also Neumann v. Neumann, 310 F. Supp. 3d 823, 838-39 (E.D. Mich. 2018). The explanatory report on the Convention states that “it would be very difficult to accept that a child of, for example, fifteen years of age, should be returned against its will.’” Elisa PĂ©rez-Vera, Explanatory Report: Hague Conference on Private International Law ¶ 30, in 3 Acts and Documents of the Fourteenth Session 426, 433 (1980); see also Neumann, 310 F. Supp. 3d at 839. The Court found that such was the case here. G.A.A.Q. would be 16 in just over four months. The Court spoke with him and took his testimony in camera, out of the presence of either parent or their attorneys. During its interview with G.A.A.Q., the Court found him to be alert, respectful, and intelligent. He exhibited an understanding of the witness oath, which he took, and then testified forthrightly and freely, answering the Court’s questions thoughtfully. Given that G.A.A.Q. was almost 16, and that he exhibited appropriate maturity in his interview and testimony, the Court found that he had the age and maturity required to have his views on the subject of return taken into account. G.A.A.Q. was very clear that he objected to returning to Mexico. He testified specifically as to aspects of return to Mexico that he objected to. He testified that he was no longer in touch with anyone in Mexico and that he would have to start a whole new life there. He further expressed that the thought of going with his father was very stressful, as he has come to dislike spending time with Mr. Gutierrez for specific reasons, including perceived criticisms of his appearance and Mr. Gutierrez’s practice of asking him questions about Ms. Sandoval’s personal life. He also felt that life was Mexico was dangerous. 
The Court also found that G.A.A.Q.’s testimony was not unduly influenced by Ms. Sandoval. The Court found that this defense has been established by a preponderance of the evidence. The establishment of the child maturity or child objection defense did not end the Court’s inquiry. A court retains the discretion to return a child, despite the establishment of an affirmative defense, if return would further the aims of the Convention. Friedrich II, 78 F.3d at 1067. In this case, the further required review did not alter the result. 

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