[Mexico][Habitual residence][Petition granted]
In
Sanchez v Peralta-Rangel, 2021 WL 984814 (E.D. North
Carolina, 2021) the Court granted the Petition of Norma Edith Rodriguez Sanchez.
Rodriguez Sanchez has lived in the City of Madero, Mexico at the same address
since 2010. Respondent Justino Fausto Peralta-Rangel is a citizen of Mexico who
currently resided in Angier, North Carolina. A.P.R. was born on May 11, 2008,
in Raleigh, North Carolina, and is the biological daughter of Rodriguez Sanchez
and Peralta-Rangel. A.P.R. is 12 years old. The parties were never married.
They met while living in North Carolina, and A.P.R. is their sole child. In
early 2010, Rodriguez Sanchez and A.P.R. returned to Mexico to stay with her
family. Rodriguez Sanchez was not legally in the United States and was not able
to return to North Carolina. The relationship between Rodriguez Sanchez and
Peralta-Rangel ended shortly after she and A.P.R. returned to Mexico. A.P.R.
has lived nearly her entire life in Madero, Tamaulipas, Mexico, with Rodriguez
Sanchez. Between 2010 and December 18, 2018, Rodriguez Sanchez and A.P.R.
resided in Madero, Tamaulipas, Mexico. Since A.P.R.’s birth, Peralta-Rangel
only returned to Mexico in June 2015. During this one visit, Peralta-Rangel
briefly saw A.P.R. During A.P.R.’s life in Mexico, Peralta-Rangel did not
provide support in the form of clothing, money, or anything else. Rodriguez
Sanchez never relied on Peralta-Rangel to meet A.P.R.’s basic needs. Rodriguez
Sanchez reared A.P.R. in Mexico from infancy. Rodriguez Sanchez ensured
A.P.R.’s health care and educational needs, and made all day-to-day decisions
with little to no input from Peralta-Rangel. A.P.R. is a citizen of both Mexico
and the United States. No court in either country has ever entered an order
regarding the custodial rights of the parties in either country. A.P.R.
attended school in Madero, Tamaulipas, Mexico through the first semester of
fifth grade. A.P.R. is fluent in Spanish. In 2018, Rodriguez Sanchez and
Rodriguez Sanchez’s sister, Alejandra Rodriguez Sanchez (“Alejandra”),
discussed sending A.P.R. to Benson, North Carolina, to visit Alejandra’s family
and attend one semester of school to learn English. In October 2018, Rodriguez
Sanchez contacted Peralta-Rangel and asked Peralta-Rangel to complete a form
allowing A.P.R. to renew her United States passport. Peralta-Rangel completed
the form, but did not participate in the plans for A.P.R.’s visit. In December
2018, Rodriguez Sanchez’s niece, Cindy Garcia Rodriguez (“Cindy”), flew to
Tamaulipas to visit family and escort A.P.R. to Benson, North Carolina, to stay
with Alejandra. On December 18, 2018, Cindy and A.P.R. arrived in the United
States. A.P.R. drove with Cindy directly to Alejandra’s home that evening,
where A.P.R. remained for the next five months. *2 On January 3, 2019,
A.P.R. was enrolled for a semester at Benson Middle School as Rodriguez Sanchez
planned. Benson Middle School is in the school district that encompassed
Alejandra’s address. Cindy was listed as the emergency contact, along with
Alejandra Rodriguez, Adrian Rivera, and Maria Rodriguez. Peralta-Rangel was
listed as the fifth contact on the emergency contact form. Shortly after
A.P.R.’s arrival, Peralta-Rangel appeared at Alejandra’s door unannounced
asking to see A.P.R. For approximately two months, Peralta-Rangel visited
A.P.R. weekly. A.P.R. was not comfortable going anywhere alone with him. The
visits ceased in approximately mid-February 2019. While A.P.R. was in the
United States, Rodriguez Sanchez remained in constant contact with A.P.R.,
texting and calling almost every day. At no time did Rodriguez Sanchez abandon
or act as though she abandoned A.P.R. In mid-February 2019, A.P.R. expressed
homesickness and asked Rodriguez Sanchez if she could return to Mexico sooner
than planned. At the time, Alejandra and Rodriguez Sanchez could not afford the
return tickets, and they asked A.P.R. to be patient
On May 10,
2019, after nearly three months without contact, Peralta-Rangel arrived at
A.P.R.’s school and demanded that she be released into his care. Benson Middle
School administrators contacted Cindy and Alejandra about Peralta-Rangel’s
demand and asked that they come to the school. Cindy immediately went to Benson
Middle School. When Cindy arrived, she found A.P.R., who was very upset. The
principal told Cindy that the school had to release A.P.R. to Peralta-Rangel
because he was her father. Cindy contacted Rodriguez Sanchez via videophone and
was able to speak to A.P.R. during the incident. A.P.R. asked not to be
released to her father, but the principal did so on May 10, 2019. That was the
last day that A.P.R. stayed with Alejandra and Cindy as Rodriguez Sanchez had
planned.
Peralta-Rangel
never returned A.P.R. to Alejandra’s care or retrieved A.P.R.’s belongings from
Alejandra’s home. A.P.R. came to the United States to visit Rodriguez Sanchez’s
family, stayed with Rodriguez Sanchez’s family, was enrolled in school by
Rodriguez Sanchez’s family and in the family’s school district, and was
scheduled to return to Mexico at the end of the semester. Rodriguez Sanchez
maintained her custody rights under the doctrine of patria potestas
and actively exercised her custody rights of A.P.R. from the time A.P.R.
arrived in the United States until Peralta-Rangel wrongfully retained A.P.R. on
May 10, 2019. Rodriguez Sanchez never consented to Peralta-Rangel withholding
A.P.R.
On May 16,
2019, Rodriguez Sanchez filed a Hague Application for the return of A.P.R.
Rodriguez
Sanchez never acquiesced to A.P.R. remaining with Peralta-Rangel in the United States. Rodriguez Sanchez never consented to
Peralta-Rangel’s retention of A.P.R. or acquiesced in the retention. Rodriguez
Sanchez filed her Hague Application within days of the retention, signed a
power of attorney naming her niece, Cindy Rodriguez, and consulted with lawyers
in both the United States and Mexico. On May 8, 2020, Rodriguez Sanchez filed
her Hague Petition for the Return of A.P.R., which is within one year of
A.P.R.’s wrongful retention. When Rodriguez Sanchez filed this action and at
all times throughout this proceeding, A.P.R. resided with the Peralta-Rangel in
Angier, North Carolina. Angier is within the jurisdiction of the United States
District Court of the Eastern District of North Carolina.
The Court
found petitioner established a prima facie case. Based on the evidence presented and crediting
Rodriguez Sanchez’s testimony about how and where she reared A.P.R., A.P.R.’s
habitual residence was Mexico. Rodriguez
Sanchez had a right to custody under the laws of the contracting state. Patria potestas rights are “rights of
custody” as defined by the Convention and ICARA. Both parents retain joint
custodial rights to A.P.R., and it was Peralta-Rangel’s affirmative action in
retaining A.P.R. that hampered Rodriguez Sanchez’s joint custodial rights under
the Civil Code for the State of Tamaulipas, Mexico. Under the Civil Code of the
State of Tamaulipas, Mexico, Rodriguez Sanchez maintained her rights of custody
over A.P.R. while A.P.R. was visiting with family in the United States. Rodriguez Sanchez was actually exercising
her custodial rights when A.P.R. was wrongfully retained. “A parent who sends
his or her child to live with a caretaker has not relinquished custody rights
but rather has exercised them.”. A parent exercises custodial rights “whenever
a parent with de jure custody rights keeps, or seeks to keep, any
sort of regular contact with his or her child.” Bader, 484 F.3d at 671. Rodriguez
Sanchez maintained daily contact with A.P.R. until May 10, 2019, when the
wrongful retention occurred. Even after the wrongful retention, Rodriguez
Sanchez continued to contact A.P.R. daily, even when A.P.R. was
In his
response, Peralta-Rangel asserted the following affirmative defenses: (1)
Rodriguez Sanchez was not actually exercising her custody rights of A.P.R. at
the time of the retention; (2) Rodriguez Sanchez consented to the retention or
acquiesced in the retention; (3) Rodriguez Sanchez failed to file the petition
within one year of the retention and A.P.R. is now well settled, and (4) A.P.R.
will suffer physical or psychological harm or otherwise be in an intolerable
situation if returned to Mexico. Peralta-Rangel presented no evidence to
support these defenses. Thus, they fail. Alternatively, the defenses fail on
the evidence presented.
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