In Leon v Ascenio, 2025 WL 1031340 (S.D.
New York, 2025). Petitioners Idalia Dominguez
Ochoa (“Mother”) and Marco Antonio Aragon Leon (Father”) brought this case
against Wendi Ochoa Perez, Elias Sanchez Corona, Isaias Sanchez Ochoa, and
Irene Trujilo Ascenio seeking the return of their two daughters, J.A.D. and
W.Y.A.D. who were three (3) and ten (10) years of age, to Mexico.
The
district court denied the Respondent’s Motion to Dismiss Petitioner’s First
Amended Verified Petition. The petitioners were the parents of J.A.D. and
W.Y.A.D., minor children born in Morelos, Mexico. Respondents include Wendi,
the minor children’s maternal grandmother, Elias, the husband of Wendi, Isaias,
the son of Wendi, and Irene. Respondents reside at 53 Lander Street, Floor 1,
Newburgh, NY 12550. Before being retained in New York, J.A.D. and W.Y.A.D.
spent their entire lives in Mexico. Petitioners asserted that pursuant to
Mexican civil law and jurisprudence they retain parental and custody rights
over J.A.D. and W.Y.A.D. At the time of the purported wrongful retention of
J.A.D. and W.Y.A.D., Petitioners were exercising their rights of custody and
would have continued doing so if not for the Respondents’ retention of the
children. Petitioners had decided as a family to move to New York, and that the
best strategy for doing so was for the Father to cross the United States-Mexico
Border with J.A.D. and W.Y.A.D. Once they successfully crossed into the United
States, the Mother would immediately attempt to enter the United States
herself. The petitioners intended that the children would return to and reside
in Mexico until the family could move together as a single unit to the United
States. This effort ultimately failed, as the Father was detained for two
months in a detention facility in Tuscon, Arizona. J.A.D. and W.Y.A.D., in the
interim, were taken to the Respondents by the people they crossed the border
with. The Father returned to Morelos, Mexico, and requested that Respondents
return J.A.D. and W.Y.A.D. to Mexico, but Respondents refused and to date
continued to refuse to do so.
Respondents
sought dismissal of Petitioners’ First Amended Verified Petition, arguing that
Petitioners failed to state a prima facie case of wrongful retention
under the Hague Convention. The Second Circuit has articulated a two-pronged
inquiry to ascertain a child’s habitual residence. “First, the court should
inquire into the shared intent of those entitled to fix the child’s residence
(usually the parents) at the latest time that their intent was shared. In
making this determination the court should look, as always in determining
intent, at actions as well as declarations. Normally the shared intent of the
parents controls the habitual residence of the child. Second, the court should
inquire whether the evidence unequivocally points to the conclusion that the
child has acclimatized to the new location and thus acquired a new habitual
residence, notwithstanding any conflict with the parents’ latest shared
intent.” Gitter, 396 F.3d 124, 135 (2d Cir. 2005). Regarding
the first Gitter factor, Respondents argued that Petitioners’ shared
intent was to “abandon their previous habitual residence in Mexico and acquire
a ‘new habitual residence’ with family already in the United States.”
Respondents cited to Petitioners’ explicit acknowledgment in their Petition
that their intent was that the family would move to the United States as a
single unit from Mexico. Respondents were correct to note that “abandonment of
the original country of habitual residence” is a relevant factor in determining
the habitual residence of the purportedly wrongfully retained children. Rodriguez v.
Lujan Fernandez, 500 F. Supp. 3d 674, 702 (M.D. Tenn. 2020). However, the Respondents’ characterization
fatally oversimplified the efforts of Petitioners. It is true that Petitioners
sought to permanently move from Mexico to the United States; however, such a
move was conditional on the family moving together, not solely J.A.D. and
W.Y.A.D.
This was akin to Mota v. Castillo, 692 F.3d 108 (2d Cir. 2012),
where the Second Circuit affirmed the District Court’s finding that the
habitual residence of the children therein was Mexico, not the United States.
In Mota, the child, Elena, initially had a habitual residence in Mexico
until she was brought to the United States, in accordance with her parents’
intentions. Respondents argued that Elena abandoned her habitual residence in
Mexico. The Court was not persuaded and noted that while the parents intended
to abandon their residence in Mexico, they only intended to do so as a family
unit. Accordingly, Elena's being in the
United States was necessary – but not sufficient – to establish the United
States as her habitual residence. Given Elena’s parents were unsuccessful in
their efforts to join her in the United States, the Second Circuit ultimately
affirmed a finding that Mexico remained Elena’s habitual residence.
The allegations in the Petition reflected
the same dynamic. The Petition explicitly stated that Petitioners’ intention
was for the family to move from Mexico to the United States together, and that,
upon unsuccessfully moving as a single unit, the family was to return together
to Mexico. Petitioners, like the parents in Mota, failed to successfully
enter the United States as a single unit, and thus returned to Mexico and,
correspondingly, sought the return of their children to Mexico, in accordance
with their original intent that the family would only move in such a way that
they end up together. Therefore, per Mota, the first prong of the Gitter
habitual residence analysis favored the Court finding that Mexico remained J.A.D.
and W.Y.A.D’s habitual residence, as it cannot be argued that Petitioners’
abandoned Mexico as their habitual residence.
The second prong of the Gitter
habitual residence analysis likewise counsels finding that Mexico remained the
habitual residence of J.A.D. and W.Y.A.D. Based on the allegations of the
Petition and Respondents’ motion, it was not evident that J.A.D. and W.Y.A.D.
had acclimated to their new environment in New York such that they acquired a
new habitual residence. First, the Court noted that the Second Circuit has
counseled that courts “should be ‘slow to infer’ that a child’s acclimatization
‘trumps the parents’ shared intent.’ ” Indeed, “only in ‘relatively rare
circumstances’ in which a child’s degree of acclimatization is ‘so complete
that serious harm ... can be expected to result from compelling his [or her]
return to the family’s intended residence’ might we conclude that the child’s
habitual residence has shifted to his or her new location.” This is especially
the case given the Second Circuit’s articulated principle that it would
“frustrate the objectives of the Convention if a parent or guardian could
secure an advantage in an anticipated custody dispute by ... merely retaining a
child [ ] long enough to amass evidence of the child’s acclimatization to a new
location.”
In
light of such axioms, the allegations in the Petition support a finding that
Mexico remained the habitual residence of J.A.D. and W.Y.A.D. If determined to
be accurate, the Court would be reticent to find that J.A.D. and W.Y.A.D.’s
time in the United States should trump Petitioners’ shared intent to enter into
the United States as a single-family unit or return to Mexico, in the
alternative, as a single-family unit. Therefore, the Petition, as alleged,
supported a finding that Mexico remains their habitual residence.
The final question within the Gitter
wrongful retention analysis is whether the Respondents’ retention of J.A.D. and
W.Y.A.D. can be characterized as a wrongful retention. This question ultimately
turns on whether the Petitioner is able to satisfy the threshold set by the
second and third factors of the Gitter wrongful retention standard. The
second factor in the Gitter analysis is whether the Respondents’
retention of J.A.D. and W.Y.A.D. was in breach of Petitioners’ custodial
rights. This determination is made in reference to the “ ‘custody rights under
the law of the State of [the] habitual residence’ and whether the evidence
shows that [Petitioners’ were] exercising those rights at the time of the
retention—or would have been exercising those rights but for the retention.” Mota, 692 F.3d 108 at 116-17. Mexico’s
custodial laws “places a series of correlative rights and obligations on the
holder of parental authority.” These include “custody of the minors, the
authority to raise them, discipline them, represent them in legal acts,
administer their property, feed and care for them,” in addition to choosing
their place of domicile. It follows, then, that Respondents’ “retention of
[J.A.D. and W.Y.A.D.] in the United States violates, [as alleged],
[Petitioners’] right[s] under Mexican law to maintain physical custody of
[their] daughter[s,]” satisfying the second factor of the Gitter
analysis. Mota, 692 F.3d at 117.
As to the third Gitter factor,
whether at the time of retention, Petitioners were exercising their custodial
rights, based on the Petition’s allegations, specifically that Petitioners
“seek [their daughters] return to Mexico so [they] can continue to care for
[their] daughter[s], and meet [their] parental obligations,” the Court must
conclude, as alleged, that Petitioners were indeed utilizing their parental
rights at the time of Respondents’ retention of J.A.D. and W.Y.A.D. Taking the Petition’s factual averments as
true and construing them in the light most favorable to the Petitioners, the
allegations are “consistent[ ] only with the conclusion that [Petitioners]
would be exercising [their] parental authority now were it not for [J.A.D. and
W.Y.A.D.’s] retention by [Respondents].” Mota, 692 F.3d at 117.
Therefore, given that Petitioners have satisfied the second and third factors
of the Gitter analysis, the Court concluded that Respondents’ retention
of J.A.D. and W.Y.A.D. constituted wrongful retention under the Hague
Convention. By extension, the Court found that Petitioners successfully alleged
a prima facie case for wrongful retention under the Hague Convention and
declined to dismiss the Petition.
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