[Mexico] [Age and Maturity exception] [Petition granted]
In Esparza v Nares, 2022
WL 17724414 ( S.D. Texas, 2022) the District Court granted the petition for the
return of the two minor children to Mexico. Petitioner and Respondent were
Mexican. During their marriage, Esparza and Nares had two children: M.G.R.D.
and V.N.R.D. The Children were both Mexican citizens, having been born in Nuevo
Leon, Mexico. They resided there for the majority of their lives. In April 2021, Esparza and Nares divorced. As part of
their divorce, the parties, entered into a divorce decree, that governs the
legal custody arrangement of the Children. Under the decree, that was agreed to
by both sides, the parents maintained joint legal custody of the Children.
Pursuant to that decree, Esparza was permitted to see and live with his
daughters from 11:00 a.m. to 8:00 p.m. on Saturdays and from 2:00 p.m. to 9:00
p.m. on Wednesdays. At all other times, the Children remained with Nares. The
divorce agreement also specified how the parents were to travel with the
Children. Under that agreement, each parent was allowed to travel with the
Children, but travel was limited to 15 days per trip and the parties were
required to inform one another about the trips. In May 2022, Nares, without
permission or prior notice to Esparza, left Nueva Leon and brought the two
Children to Texas. The
Children remained in Texas ever since. The only issue for the
Court to decide was whether the Hague Convention’s Article 13 age and maturity
exception applied. It states, “[t]he judicial or administrative authority may
also refuse to order the return of the child if it finds that the child objects
to being returned and has attained an age and degree of maturity at which it is
appropriate to take account of its views.” Hague International Child Abduction Convention;
51 Fed. Reg.at 10494-01, Art. 13. The party opposing the child’s return must
establish the child’s maturity by a preponderance of the evidence. England v. England, 234 F.3d 268, 272 (5th Cir. 2000).
“[W]hether a child is of sufficient age and maturity is a fact-intensive
process,” and the Fifth Circuit has “declined to hold, as a matter of law, that
any particular age is sufficient of insufficient to meet the defense.” Dietz v. Dietz, 349 F. App’x 930, 934 (5th Cir.
2009). The age and maturity
exception is to be applied narrowly. The two Children here were eleven and six years old. Neither speaks
English; consequently, the Court’s interpreter translated. The girls were
interviewed separately so the Court could evaluate them separately. During
their respective interviews, both kept their eye cast downwards and spoke in a
quiet manner. Both Children only spoke a couple of words at a time. For the
most part, they were unable to explain their answers, often sticking to yes,
no, I don’t know or one word answers. The
case shared similarities with Dietz v. Dietz. In the Dietz case,
the court held a 13-year-old was not mature under the Hague Convention. Dietz, 349 F. App’x at 934. The court
noted that he was “highly defensive,... he spoke in a short and cut manner in a
low monotone and kept his eyes cast downward.” The court also pointed to the
report of a child psychologist who examined the boy and determine despite
showing high average to superior intelligence, he displayed only average verbal
skills, and performed poorly in school. Id. Also in that case, the Court
did not credit 9-year-old Angus’s preference because it found that his views
were “unduly influenced by his father.” The Court acknowledged that both
Children voiced a preference for remaining in Texas with their mother, but this
testimony, even when one gives due consideration to the circumstances
surrounding the questioning, was not sufficient to prove by a preponderance of
the evidence that the Children were mature enough for the Court to
appropriately take into account their views under the age and maturity
exception. Rodriguez v. Yanez, 817 F.3d 466, 476 (5th Cir. 2016) (requiring
an “[o]bject[tion] not a mere preference.”). In so holding, this Court considered
their answers, but also their demeanor, their attention to what was being
asked, and the manner of their responses. The totality of the evidence made it
clear that neither girl demonstrated the age and maturity necessary for the
Court to take their views into account. Since the Court found the Children were
not of sufficient age and maturity, and ordered the two minor children be
returned to Nuevo Leon, Mexico.
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