Bardales v. Lamothe, 2019 WL 5555540 (M.D. Tennessee, 2019) [Honduras] [Rights of Custody] [Grave Risk of Harm] [Petition granted]

In Bardales v. Lamothe, 2019 WL 5555540 (M.D. Tennessee, 2019) Respondent Breidy Maria Cruz Lamothe removed her minor child, JINC, from his home in Honduras and brought him to the United States. JINC’s father, Petitioner Carlos Ismael Nunez Bardales, filed a Petition seeking the return of JINC. The district court granted the petition.

Respondent Breidy Maria Cruz Lamothe (“Respondent”) and Carlos Ismael Nunez Bardales (“Petitioner”) were both Honduran citizens. Petitioner and Respondent had a child together, JINC, who was born on July 21, 2015. Petitioner, Respondent, and JINC lived together in San Pedro Sula, Honduras after JINC’s birth. In February 2017, Petitioner and Respondent broke up, and moved into different homes. JINC resided with Respondent; however, Respondent dropped JINC off at Petitioner’s home five days a week while Respondent worked. In July 2017, Respondent told Petitioner that she was taking JINC on a vacation to visit her sister in Catacamas Olancho, Honduras. Respondent actually planned to remove JINC to the United States. Respondent and JINC entered the United States on July 14, 2017, via the land border between the United States and Mexico and they arrived in Nashville, Tennessee on July 29, 2017. Respondent eventually texted Petitioner, informing him that she had taken JINC to the United States. JINC was two years old at the time. On July 24, 2017, Petitioner submitted a Hague application for return of the child to the United States Department of State. On July 2, 2018, Petitioner filed a Petition for Return.

Prior to trial, the parties stipulated to the applicability of the Convention and also stipulated to the following facts: (1) JINC is under the age of sixteen; (2) JINC’s habitual residence at the time of removal was Honduras; (3) Respondent and JINC entered the United States on July 14, 2017, via the land border between the United States and Mexico, and Respondent did not tell the Petitioner she had removed the child from Honduras; (4) Petitioner filed his Petition within one year of his knowledge of the wrongful removal; (5) Petitioner is the father of JINC.  The only two witnesses at trial were Petitioner and Respondent. Their respective accounts of their relationship, and of Petitioner’s involvement in JINC’s life, differ greatly from one another. 

Petitioner’s Exhibit 6 contained excerpts of the Honduran family code in Spanish (“the Spanish version”) and an English translation of those excerpts (“the English version”). At trial, Respondent objected to Petitioner’s proposed Exhibit 6 on the ground that it was not properly authenticated.  The Court observed that the language of the Convention  authorizes courts to take notice directly of the law of the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.’ March v. Levine, 136 F. Supp. 2d 831, 834 (M.D. Tenn. 2000) (citing Convention, art. 14), aff’d, 249 F.3d 462 (6th Cir. 2001). Additionally, under ICARA, no authentication of documents or information included with a petition under the Convention “shall be required in order for the document or information to be admissible in court.” 42 U.S.C. § 11605. Relying on these principles, district courts often take judicial notice of the law of the state of habitual residence without requiring authentication. See De La Riva v. Soto, 183 F. Supp. 3d 1182, 1196 n.15 (M.D. Fla. 2016)  Although Respondent’s concerns regarding that accuracy of the English translation in Petitioner’s Exhibit 6 were valid ones those concerns were  sufficiently alleviated here as any differences in the translation were trivial. 

The parties stipulated that JINC’s habitual residence at the time of removal was Honduras for the purposes of the Convention. Article 187 of the Honduran Family Code, provides that “parental authority belongs to both parents jointly. However, it will exercise one of them3 when it is conferred by the court or the other was in impossibility to exercise it.” “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.” (translating Honduran Family Code, Art. 191)). “If 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 the trip.”  (translating Honduran Family Code, Art. 101)). The Court concluded that “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.” Mendieta Chirinos, 2019 WL 2887975, at *5. “A ne exeat right is a right of custody under the Convention.” Abbott, 560 U.S. at 10. Under the Honduran code, “parental authority belongs to both parents jointly. However, it will exercise one of them when it is conferred by the court or the other was in impossibility to exercise it.” Here, the parties stipulated that Petitioner was the father of the child. Moreover, there was nothing in the record that indicated a Honduran court granted full custody to Respondent, and it was not impossible for Petitioner to exercise parental authority; he did in fact exercise his parental authority. Therefore, Petitioner possessed parental authority jointly with Respondent. “If 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 the trip.” (Id. (translating Honduran Family Code, Art. 101)). The Supreme Court has held that such a ne exeat right is a right of custody as defined by the Convention. Abbott, 560 U.S. at 10. Therefore, Petitioner possessed rights of custody over JINC at the time of his removal from Honduras. 

The parties stipulated that Respondent removed JINC to the United States on July 14, 2017, without informing Petitioner she was removing the child from Honduras. Because Respondent did not receive Petitioner’s written authorization before removing JINC from Honduras, JINC’s removal was in breach of Petitioner’s custody rights. Therefore, Petitioner proved by a preponderance of the evidence that JINC’s removal was in breach of his custody rights granted by Honduran law.

Although there were disputes regarding the extent of the care that Petitioner provided to JINC, there was no testimony from Petitioner or Respondent of acts that could constitute “clear and unequivocal abandonment” of JINC on the part of the Petitioner. Friedrich II, 78 F.3d at 1066. Respondent’s allegations of Petitioner’s lack of hands-on care for JINC was to no avail, because such allegations suggested something “short of acts that constitute clear and unequivocal abandonment.” Respondent testified that she dropped JINC off at Petitioner’s house five days a week. Even if Petitioner’s mother or a babysitter cared for JINC while he was at Petitioner’s house, it was obvious that Petitioner still intended to, and did, keep regular contact with JINC during this time. The Sixth Circuit has instructed that courts may “liberally find ‘exercise’ whenever a party with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child.” Friedrich II, 78 F.3d at 1065. Accordingly, the Court found that Petitioner was exercising his custody rights at the time of removal.

The Court found that Petitioner proved his prima facie case by a preponderance of the evidence.

Respondent argued that even if Petitioner proved his prima facie case of wrongful removal, JINC should not be returned to Honduras because there was a grave risk that returning JINC would expose him to harm because of Petitioner’s prior violent actions. To prevail, Respondent must prove by clear and convincing evidence that there is a grave risk that returning JINC to Honduras “would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Convention, art. 13(b). The Court observed that the Sixth Circuit has adopted a “restrictive reading” of this exception. Friedrich II, 78 F.3d at 1068–69; see also March, 136 F. Supp. at 844–846 (stating that “this exception is truly to be narrowly construed,” and courts that have found a grave risk of harm “have generally emphasized that there was clear and convincing evidence to support a finding that the parent seeking the return had seriously abused the child”). The Sixth Circuit has also “acknowledge[d] that courts in the abducted-from country are as ready and able as we are to protect children. If return to a country, or to the custody of a parent in that country, is dangerous, we can expect that country’s courts to respond accordingly.” 

Respondent testified that after she and Petitioner ended their relationship, Petitioner stalked her and threatened her. She testified that on one occasion, when JINC was in the room, Respondent pointed a loaded gun at her, and then at himself while threatening to commit suicide. Respondent also testified that on another occasion, Petitioner showed up at her place of employment and threatened to kill her and himself. She testified that she was in fear of returning to Honduras because of these incidences. Petitioner vehemently denied that he has ever pointed a gun at Respondent or threatened her. Moreover, Petitioner denied that he ever held a gun in front of his son and testified that he “would never do that.” Based on its observations during the hearing and its review of the evidence, the Court concluded that neither party’s version is appreciably more credible or less credible than the other party’s version. The Court found that Respondent had not proved by clear and convincing evidence that returning JINC to Honduras “would expose the child or psychological harm.” Convention, art. 13(b). Her only evidence of any threatening behavior on the part of Petitioner was her own testimony, which Petitioner’s testimony disputed. There was no other evidence, either through witness testimony, physical evidence, or documentary evidence such as text messages or a police report, that tends to corroborate Respondent’s testimony. This uncorroborated, hotly disputed testimony was simply not enough to satisfy Respondent’s burden of clear and convincing evidence. Moreover, to prevail on an Article 13(b) defense, there must be evidence of a grave risk of harm to [the] child, not solely to a parent or some other third party.” Acosta v. Acosta, No. CIV. 12-342 ADM/SER, 2012 WL 2178982, at *7 (D. Minn. June 14, 2012) (citing Convention art. 13(b)); see also Charalambous v. Charalambous, 627 F.3d 462, 468 (1st Cir. 2010) (“The relevant inquiry is not whether there would be a grave risk of harm to [the child’s mother] if she returned to [the country of habitual residence]; rather, the grave risk inquiry goes to the children.”). Here there was no showing of any likelihood of such scenario were JINC to be returned—i.e., that long after Petitioner’s relationship with Respondent ended, he would abuse her, let alone abuse her with JINC in the vicinity so as to be himself at risk. Although Petitioner did allegedly point a loaded gun at Respondent while JINC was in the room, this action alone did not amount to one of the “extreme cases” in which the grave risk of harm defense may be found. See Cuellar v. Joyce, 596 F.3d 505, 508 (9th Cir. 2010)  Moreover, Respondent had not proven by clear and convincing evidence that the Honduran courts would be unwilling or incapable of protecting the child during the pendency of a custody hearing. Although Respondent testified that the police force in Honduras “doesn’t work”, this does not persuade the Court that Honduran courts are unable to protect JINC. As the Sixth Circuit explained, “[w]hen we trust the court system in the abducted-from country, the vast majority of claims of harm—those that do not rise to the level of gravity required by the Convention— evaporate.” Friedrich II, 78 F.3d at 1068. 

Respondent argued that Petitioner consented to or subsequently acquiesced in the wrongful retention of their child and that she should therefore be afforded the third of the foregoing affirmative defenses under Article 13. In order for her to prevail on this defense, Respondent had to show by a preponderance of the evidence that Petitioner consented to or subsequently acquiesced to the child remaining in the United States. See Friedrich II, 78 F.3d at 1067 (citing Convention art. 13(a) and 42 U.S.C. § 11603(e)(2)(B)). Here, the parties stipulated that “Respondent did not tell Petitioner that she had removed the child from Honduras.” And Petitioner sought assistance from the Honduran Central Authority within days of JINC’s removal. See Freier v. Freier, 969 F. Supp. 436, 444 (E.D. Mich. 1996) (finding no consent where, inter alia, petition was filed “within days” of wrongful removal). Accordingly, Petitioner did not consent to JINC’s removal from Honduras. “[A]cquiescence under the Convention requires either: an act or statement with the requisite formality, such as testimony in a judicial proceeding; a convincing written enunciation of rights; or a consistent attitude of acquiescence over a significant period of time.” Friedrich II, 78 F.3d at 1070. “Subsequent acquiescence requires more than an isolated statement to a third-party. Each of the words and actions of a parent during the separation are not to be scrutinized for a possible waiver of custody rights.” Respondent’s evidence of Petitioner’s subsequent acquiesce was ambiguous at best. At trial, Respondent displayed text messages, in which Petitioner responded with a “thumbs-up” emoji to Respondent’s statement that she had made it to the United States. Respondent maintained that the “thumbs-up” meant Petitioner was okay with JINC remaining in the United States. Petitioner contended that the “thumbs-up” meant that Respondent should enjoy her mother’s company, and did not imply that he was okay with JINC remaining in the United States. 
This emoji and these and other text messages neither (1) were “statement[s] with the requisite formality” that demonstrated Petitioner’s acquiescence; nor (2) displayed a “consistent attitude of acquiescence over a significant period of time.” These communications did not show, by a preponderance of the evidence, Petitioner’s subsequent acquiescence to JINC remaining in the United States, especially in light of Petitioner’s consistent efforts to have JINC returned to Honduras. See Friedrich II, 78 F.3d at 1070 (“He has resolutely sought custody of his son since that time. It is by these acts, not his casual statements to third parties, that we will determine whether or not he acquiesced to the retention of his son in America.”). Accordingly, the Court found that Respondent had not met her burden to prove Petitioner acquiesced JINC remaining in the United States by a preponderance of the evidence.