In Diaz v Ibarra, 2019 WL 4394491 (D. Arizona, 2019) the district court granted the father’s petition for the return of the child to Mexico. Valentin Zarate Diaz (“Father”) and Laura Andrea Rios Ibarra (“Mother”) were the parents of Son V, a minor child.
The parties agreed to forgo an evidentiary hearing and instead submit this case on the briefs. Father and Mother were both citizens of Mexico. They had never been married. They are the parents of Son V, who was born in Mexico in February 2012. They “intermittently lived together for several months when Son V was an infant” but “have not lived together since September 2014.” Their relationship was “tumultuous.” Following their break-up, Son V resided with Mother (in a house owned by Father)2 but Father remained actively involved in Son V’s life.
On November 19, 2015, Father and Mother entered into an agreement addressing their respective rights concerning Son V (the “Agreement”), which contains the following clauses… (2) The parties agree that “the days of cohabitation with [Father] will be any day of the week within a prudent schedule for the child, provided that [Father] doesn’t come in an inconvenient state, and that he doesn’t interrupt the child’s chores,” and further agree that if either party has “an event that requires the child, they will have no inconvenient.” (3) “[T]he addresses where the child will reside will be [a particular house in Sonora, Mexico] where the child currently lives with [Mother].” Additionally, the Agreement contained a provision certifying that “everything relating to the present agreement, is su[b]mitted to the jurisdiction of the pertinent judge of this judicial district” and concludes with a joint request by Mother and Father for the Agreement to be “su[b]mitted to the Judge of First Instance in Family Matter ...for its revision and approval in the terms of the [laws of] the State of Sonora.” On August 23, 2018, Mother requested that Father sign a passport application for Son V to travel to the United States. Sometime between August 31, 2018 and September 3, 2018, Mother moved with Son V to the United States. Father did not consent to Mother’s removal of Son V from Mexico. Mother’s purpose in moving to the United States was to accept a job offer to work as a civil engineer at an engineering firm in Arizona.
On September 12, 2018, Father filed a “Motion to Enforce Agreement” with the family court in Sonora, Mexico. Among other things, Father argued in this motion that Mother had violated the third clause in their Agreement, which required Son V to reside at a particular home in Sonora, Mexico. Father also stated in the motion that “it is true that [Mother] can freely decide where she will live with my minor child” and argued that the violation of the third clause arose from Mother’s “refus[al] to give me true and necessary information of her whereabouts for me to exercise my rights as a parent.” On or about October 15, 2018, the Mexican family court denied the “Motion to Enforce Agreement” that Father had previously filed. The court’s rationale for denying the motion was that “considering the drastic change in circumstances, ([Mother’s] address), it is not materially possible to enforce the agreement regarding parenting time the way the moving party is requesting.” On October 17, 2018, Mother filed a “Notice of Relocation” with the Mexican family court. This notice explained that Mother had moved to the United States for “personal and professional reasons.” On October 18, 2018, Father filed a “Motion to Revoke” the order denying his motion to enforce. On October 23, 2018, the Mexican family court issued an order denying the “Motion to Revoke.” In this order, the court explained that it hadn’t denied Father’s previous motion for any merits-based reason—instead, it had denied the motion because Mother’s relocation to the United States meant that “it is not possible to effectuate the enforcement of the agreement...by virtue of the fact that the minor child no longer lives in the home where it was agreed he would be placed.” The court further clarified that Father’s “rights are preserved and he may exercise them in the appropriate procedure and form.” On July 9, 2019, Mother filed a “Motion to Modify Parenting Time with Our Minor Child” with the Mexican family court. In this motion, Mother described the Agreement as a document that “established parenting time between non-custodial parents and our child.”
The district court observed that to determine whether the removal/retention was “wrongful,” a district court must answer a series of four questions: (1) When did the removal or retention at issue take place? (2) Immediately prior to the removal or retention, in which state was the child habitually resident? (3) Did the removal or retention breach the rights of custody attributed to the petitioner under the law of the habitual residence? (4) Was the petitioner exercising those rights at the time of the removal or retention? Mozes v. Mozes, 239 F.3d 1067, 1070 (9th Cir. 2001). If the Court answers these questions in the petitioner’s favor, the burden shifts to the party opposing the return of the child—here, Mother—to prove “by clear and convincing evidence that one of the exceptions set forth in article 13b or 20 of the Convention applies.” Id. § 9003(e)(2)(A).
The only disputed legal issue in this case concerned the third element of the Mozes test—whether Mother’s removal of Son V from his state of habitual residence (Mexico) on or around August 31, 2018 (the date of the removal) violated the “rights of custody” that were attributed to Father under the laws of the state of habitual residence. “The parties agreed that the only issue in dispute was the third question. As a result, the return of Son V was only mandated if rights of custody were e attributed to Father under the law of the habitual residence.
The Court noted that the seminal decision addressing the meaning of the term “rights of custody” under the Convention is the Supreme Court’s 2010 decision in Abbott v. Abbott, 560 U.S. 1 (2010) where the Supreme Court held that a ne exeat right is a right of custody, not a mere “right of access. A ne exeat right is a right to consent before the mother could take the child out of Mexico. The Court agreed with Father that the parties agreement established rights of custody. The Agreement’s key provision was its third clause, under which Mother and Father jointly agreed that “the address where the child will reside will be” the home owned by Father in Sonora, Mexico, which is the “place where the child currently lives with [Mother].” The necessary implication of this clause was that Mother was precluded from unilaterally moving Son V into a different residence within Mexico—let alone to a different country—without Father’s permission. If a ne exeat right constitutes a “right of custody” for purposes of the Convention, it follows that Father’s rights under the Agreement—which go further than a ne exeat right, because the Agreement implicitly prohibits even the intra-country relocation of Son V by Mother—is a “right of custody,” too.
The father also argued that the Mexican doctrine of patria potestas, or parental authority, granted him a right of custody by operation of law. “The doctrine of patria potestas has its roots in Roman law, where it conveyed absolute and despotic rights of a father over his children; today, in Mexico, the doctrine regulates relations between parents and children until the latter reach the age at which they must fend for themselves.” Gonzalez v. Preston, 107 F. Supp. 3d 1226, 1234 (M.D. Ala. 2015). Patria potestas “constitutes the ‘most comprehensive’ right that a parent can exercise over the person and property of his or her minor children.” Saldivar v. Rodela, 879 F. Supp. 2d 610, 624 (W.D. Tex. 2012). It “establishes the parent’s bundle of rights over a minor child, one of which is formal custody, but it also includes the right to care for the child and make decisions about his or her life.” Preston, 107 F. Supp. 3d at 1234. The Mexican State of Sonora—which was the habitual residence of Son V at the time of his removal—codifies the doctrine of patria potestas in its Family Code (“the Code”). The Code defines patria potestas (in the Code, referred to as “parental authority” ) generally as “a set of rights and obligations granted and legally binding on parents, or grandparents where appropriate, to fulfill the obligations to feed, protect, and raise their descendants, and to appropriately manage their assets.” Code art. 308 More specifically, one who has patria potestas over a child is required “to protect and educate [the child] properly” and “observe the [child] and educate [the child] to obey the rules of social coexistence.” Code art. 317. That person also has “the faculty to admonish and correct, avoiding always cruel and unnecessary punishments.” The Court agreed with Father that the Agreement didn’t extinguish his patria potestas rights. In fact, the evidence submitted by both parties demonstrates that Father retains patria potestas rights over Son V. The Code explicitly provides that “[p]arental authority cannot be waived.” Code. art. 340. The Code also identifies various ways in which patria potestas can be lost or suspended—none of those include by a custody agreement. Code arts. 338, 339. Indeed, the Code states that “[w]hen parents of a born out of wedlock child separate,” as Father and Mother have done here, “both will continue to exercise [patria potestas]” even after an agreement on custody, child support, and visitation has been reached. Code art. 315.1.
The Court agreed with Father that patria potestas constitutes a right of custody under Sonoran law. See generally Gallardo v. Orozco, 954 F. Supp. 2d 555, 572-74 (W.D. Tex. 2013) (surveying Sonoran law before concluding that “Petitioner has rights of custody conveyed by patria potestad under the laws of the State of Sonora, Mexico” and that these rights “gave Petitioner specific rights of custody as defined in the Convention”). The Code provides that “[w]hen parents of a born out of wedlock child separate, both will continue to exercise [patria potestas] but must agree on who will retain custody of the minor, as well as the way of administering child support and the right of the noncustodial parent to monitor and relate with the minor.” Code art. 315.1. A parent’s rights under patria potestas, therefore, must be more expansive than the rights to (1) physical custody, (2) the obligation to financially support the child, and (3) right to “monitor and relate with” the child, because both parents “will continue to exercise [patria potestas]” after agreeing on those three items.