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Saturday, August 13, 2022

Recent Hague Convention District Court Cases - Lopez v Ash, 2022 WL 3328888 (W.D. Louisiana, 2022)

 [Honduras] [Habitual residence] [Petition granted]

In Lopez v Ash, 2022 WL 3328888 (W.D. Louisiana, 2022) the court granted the petition of Soguey Aracely Ariza Lopez (“Ariza”) against Respondent Kelly Christopher Ash (“Ash”) for the return MCAA to Honduras. MCAA was born in 2012 in Utila, Honduras. Ash was not the biological father of MCAA, but his name appeared on the child’s birth certificate.. Ash moved back to the United States in 2017. On November 8, 2021, Ash and Ariza entered into a Settlement Agreement (“the Settlement Agreement”) in which Ariza was granted full custody of the child and Ash was prohibited from taking the child out of the country without prior authorization from Ariza.  The Settlement Agreement explicitly authorized Ash to travel with the child to Tegucigalpa, Honduras, on November 9 and 10, 2021, to go to the American Embassy then return to Roaton, Bay Islands. The Settlement Agreement prohibited Ash from removing the child from the country at this time without prior authorization. Ash traveled with MCAA to the capital city on November 9, 2021. By November 11, 2022, Ash had not return to Roatan with MCAA. Ariza had little to no contact with MCAA at this time  Ariza confirmed, that the child was removed from the country on November 9, 2022. Prior to his removal by Ash in November 2021, MCAA lived his entire life in Honduras.. The court found that the habitual residence of the child was Honduras. It rejected Ash’s argument that Ariza was not exercising custody rights at the time of removal and that she consented or acquiesced to MCAA’s removal. These arguments were unsupported.  The Court reached a similar conclusion as to Ash’s argument that the child objected to leaving the United States and wished to remain with his father. It found that any apprehension the child had towards returning to Honduras had been fostered by Ash in an attempt to keep the child in the United States. Ash contended that MCAA should not return to Honduras because he was in grave risk of serious injury or harm there. The Court found his argument lacking in particularity and legitimacy. Ash could not point to a specific, real risk to the child but instead painted the whole of Honduras as an unsafe place with a bad educational system