In Munoz v. Rivera, --- F.Supp.2d ----, 2013 WL 563419 (W.D.Tex.)
Petitioner Munoz was a citizen of the Republic of Mexico. Respondent Ramirez was
a citizen of the United States. Petitioner and Respondent were the parents of
A.R.R. The child was born in Chihuahua, Chihuahua, Mexico, in April, 2007. She
was five years old.. Petitioner and Respondent were not married and had never
been married to each
other, nor had they ever cohabited as spouses. On March 18, 2008, the parties
officially added Respondent as the father of A.R.R. on the child's State of
Chihuahua Civil Registry Birth Certificate. On March 19, 2008, the parties
obtained a Consular Report of Birth Abroad of a Citizen of the United States
from the U.S. Consulate in Ciudad Juarez, Mexico. A.R.R. was a dual citizen of
the Republic of Mexico and the United States.
From birth until on or about a date between June 2011 and August 2, 2011,
A.R.R. continuously lived with Petitioner in Chihuahua, Chihuahua, Mexico, with
periodic trips to see her father and extended family in the United States.
Before A.R.R.'s birth Petitioner moved to Chihuahua, Chihuahua, Mexico, from San
Luis Potosi, Mexico, with her three children from a previous marriage: C.D.(age
15), L.G.(age 13), and M.J.(age 12). Petitioner continuously lived in Chihuahua,
Chihuahua, Mexico, with all of her children since 2006. Petitioner and
Respondent did not have a formal custody or visitation agreement. The parties
had a verbal agreement as to visitation that Petitioner would always let
Respondent take A.R.R. for visitation if Respondent promised to bring A.R.R.
back. Petitioner freely allowed Respondent or Respondent's family members to
take A.R.R. from Chihuahua, Chihuahua, Mexico, for visitation in the United
States. Except for the last visit, at the conclusion of each visitation A.R.R.
was returned to Petitioner's home in Chihuahua, Chihuahua, Mexico.
In early or mid-June of 2011, Respondent and Laura Ramirez (Respondent's
sister) picked up A.R.R. from her home in Chihuahua, Chihuahua, Mexico, for a
verbally-agreed period of visitation in the United States. The parties further
agreed that A.R.R. would travel with Respondent or Respondent's family from
Lenorah, Texas, to San Luis Potosi, Mexico, for Laura Ramirez' quinceanera
scheduled on or about June 25, 2011. The parties also agreed that Petitioner and
her children would travel from
Chihuahua, Chihuahua, Mexico, to San Luis Potosi, Mexico, to attend the
quinceanera. On or about June 25, 2011, Petitioner, Respondent, A.R.R., and
Petitioner's other children, all attended Laura Ramirez' quinceanera. Petitioner
asserted that after the quinceanera, on or about July 1, 2011, she took all of
her children, including A.R.R., from San Luis Potosi, Mexico, by bus back to her
home in Chihuahua, Chihuahua, Mexico. Petitioner asserted that A.R.R. spent the
entire month of July 2011 with her, and in her possession, in Chihuahua,
Chihuahua, Mexico. , Respondent asserted that upon conclusion of the quinceanera
A.R.R. went directly back to the United States from San Luis Potosi, Mexico,
with Respondent's parents. Respondent asserted that A.R.R. had lived with
Respondent in Lenorah, Texas, since his parents brought A.R.R. back to Lenorah,
Texas, following the quinceanera. Respondent asserted that A.R.R. was with
Respondent, and in Respondent's possession, for both July and August 2011.
Respondent further asserted that the parties agreed that A.R.R. would be
educated in the United States and begin school in September of 2011. Petitioner
asserted that the parties agreed that A.R.R. would be educated in Chihuahua,
Chihuahua, Mexico, and that she never gave permission for A.R.R. to begin school
in the United States.
On or about August 21, 2011, Respondent spoke with Petitioner by telephone
and informed Petitioner that he (Respondent) was not going to return A.R.R. to
Mexico. Respondent told Petitioner he would bring A.R.R. back in December to
visit. On or about August 24, 2011, Respondent enrolled A.R.R. in school in
Texas. After Respondent communicated on or about August 21, 2011, that he was
not returning A.R.R. to Mexico, Petitioner sought legal assistance from the
Human Rights Center for Women, Inc., in Chihuahua, Chihuahua, Mexico. On August
31, 2011, Petitioner filed her Application for Return of Child with the Mexican
Central Authorities. Petitioner filed suit in the Western District of Texas,
Midland/Odessa Division, for Return of Child on July 19, 2012.
The Court found that the Petitioner established a prima facie case for
return. The court found that the facts clearly indicated that both parents
shared the intent that Chihuahua, Chihuahua, Mexico, was their child's residence
prior to Respondent's taking of A.R.R. with Petitioner's consent, in early to
mid-June 2011, to Lenorah, Texas, from Chihuahua, Chihuahua, Mexico. The Court
determined that Petitioner never agreed to A.R.R. taking up habitual residence
in the United States and never agreed to A.R.R. being enrolled in school in the
United States, thus there was no shared parental intent to shift A.R.R.'s
habitual residence from Mexico to the United States. See Mozes, 239 F.3d at
1076. The evidence pointed toward Respondent's retention and subsequent
enrollment of A.R.R. in school in the United States as Respondent's unilateral
action.
The Court determined that the State of Chihuahua, Mexico, in accordance with
the Chihuahua Civil Code adheres to the legal doctrine of patria potestad. See
Chih. Civ.Code, tit. 8, ch. 1, art. 388 et seq. "Pursuant to that doctrine both
parents had joint custody rights. . Article 389 of the Chihuahua Civil Code
details how an unemancipated minor child such as A.R.R. is under patria potestad
( parental authority) as long as a relative can exercise parental authority over
the child in accordance with the law. Chih. Civ.Code, art. 389; Article 394
explains that even when a person who has patria potestad ( parental authority)
over a child, but does not have possession of that child, that person still has
the right to live with that child, unless the parent presents a danger to the
child. Chih. Civ.Code, art. 394; Petitioner had been exercising patria potestad
over A .R.R. since her birth in Chihuahua, Chihuahua, Mexico, in April 2007. See
Chih. Civ.Code, art. 389. Although Petitioner had not been in physical
possession of A.R.R. since on or about August 2, 2011, she still had patria
potestad ( parental authority) under the Chihuahua Civil Code. See Chih.
Civ.Code, art. 394. Based on the aforementioned, the Court found that Petitioner
had rights of custody conveyed by patria poteststad under the laws of the State
of Chihuahua, Petitioner proved by a preponderance of the evidence that
Respondent retained A.R.R. in breach of Petitioner's rights of custody under the
laws of the child's habitual residence-the Republic of Mexico. Petitioner's made
out a a prima facie case for wrongful retention
of A.R.R. by showing that at the time of retention she was actually
exercising her rights of custody or would have been exercising those rights but
for the retention. Larbie v.. Larbie, 690 F.3d 295, 307 (5th Cir.2012);
Convention art. 3(b). The Court pointed out that Courts apply a liberal approach
when determining whether rights of custody were actually being exercised. Sealed
Appellant v. Sealed Appellee, 394 F.3d 338, 344-345 (5th Cir.2004) (citing
Friedrich v. Friedrich, 78 F.3d 1060, 1065-66 (6
th Cir.1996)). To
show failure to exercise custody rights, the removing parent must show the other
parent has abandoned the child." Sealed Appellant, 394 F.3d at 344-345.
Respondent made no showing that Petitioner abandoned her child.
Respondent asserted that there was a grave risk of physical and psychological
harm if A.R.R. was returned to Petitioner; specifically, asserting that return
would be to an intolerable situation. Convention, art. 13(b). Respondent argued
that the following provided evidence that return would expose the child to
physical or psychological harm or place the child in an intolerable situation:
(1) the living environment in Chihuahua, Chihuahua, Mexico; (2) Petitioner's
fear of break-ins of her home evidenced by her testimony that she has bars on
her doors and windows; (3) Petitioner's extreme economic hardship when compared
to Respondent's relative economic affluence; (4) Petitioner's severe financial
stress evidenced by her bank records suggesting that Petitioner could not
provide basic needs for A.R.R. or Petitioner's three other children; (5)
Petitioner's inability to attend a pretrial hearing because she could not afford
the cost of a Visa to travel to the United States; (6) a request for financial
assistance made on the day before trial by the caretaker watching over
Petitioner's other three children in Chihuahua, Chihuahua, Mexico, while
Petitioner was in the United States attending these legal proceedings, seeking
funds from Carmen Ramirez to purchase food for Petitioner's children; (7)
alleged sexual abuse of Petitioner's other child, M.J.(age 12), by Petitioner's
boyfriend Maximino Munoz, who lived with Petitioner and her children in their
home in Chihuahua, Chihuahua, Mexico.
The court found that poverty and economic hardship are not relevant factors
to use when determining whether a court should use its discretionary power in
not returning a child to his or her country of habitual residence. A review of
deliberations on the Convention revealed that "intolerable situation" was not
intended to encompass return to a home where money is in short supply, or where
educational or other opportunities are more limited than in the requested State.
An example of an "intolerable situation" is one in which a custodial parent
sexually abuses the child. If the other parent removes or retains the child to
safeguard it against further victimization, and the abusive parent then
petitions for the child's return under the Convention, the court may deny the
petition. Such action would protect the child from being returned to an
"intolerable situation" and subjected to a grave risk of psychological harm.
Friedrich v. Friedrich, 78 F.3d 1060, 1068-69 (6th Cir.1996).
Respondent argued that return of A.R.R. to the child's country of habitual
residence, the Republic of Mexico, would pose a grave risk of harm to A.R.R. as
return would place A.R.R. in an intolerable situation because of an allegation
that sexual abuse was committed against Petitioner's child, M.J. (age 12), by
Petitioner's boyfriend, Maximino Munoz, who lived with Petitioner and her
children in their home in Chihuahua, Chihuahua, Mexico. The facts revealed that
Petitioner's daughter, M.J.(age 12), spoke with Respondent and alleged that
Petitioner's boyfriend, Maximino Munoz, touched her in an inappropriate sexual
manner. Respondent brought this allegation to the attention of Petitioner and
then M.J.(age 12) told Petitioner about the alleged inappropriate touching.
Maximino Munoz lived with Petitioner and her four children for approximately two
years. At trial, Petitioner testified that M.J. (age 12) had been previously
molested and raped by Petitioner's brother. Petitioner pressed charges against
her brother, took M.J. (age 12) to a psychologist, therapist, a caseworker at
school, and attended group therapy. The brother fled Chihuahua, Chihuahua,
Mexico, and had never been prosecuted. After hearing the allegations against
Maximino Munoz and upon the urging of Respondent, Petitioner made Maximino Munoz
move out in late August 2011. Additionally, Petitioner entered M.J.(age 12) and
the entire family into group therapy for approximately three to four months.
Petitioner testified that Maximino Munoz was cleared of the allegations during
therapy and that she allowed Maximino Munoz to move back into her home in
December 2011. Both parties agreed that there were no allegations that Maximino
Munoz ever inappropriately touched A.R.R., the subject of the Petition for
Return. Respondent, did not present any actual evidence that Maximino Munoz has
a history of sexually molesting children or that he actually inappropriately
touched M.J.(age 12). Respondent testified that he had knowledge that Maximino
Munoz was convicted of criminal charges for sexual assault of a minor, but he
produced no evidence of any such conviction that might corroborate his
testimony. Petitioner testified that she knew Maximino Munoz served time in
prison for a marijuana conviction and was released in 2002. Her testimony
indicated that she had information that there were previous legal proceedings
against him involving molestation, but she made clear that she had no knowledge
of a conviction for any such crime. Based on the evidence presented, Respondent
did not meet the burden of proof to prove that A.R.R. would face a "grave risk"
of harm by being placed in an intolerable situation upon return to the Republic
of Mexico.
The Court found that Respondent failed to establish by a preponderance of the
evidence that Petitioner consented to removal or subsequently consented or later
acquiesced to A.R.R.'s retention and failed to establish that the "well settled
into new environment" affirmative defense was available to Respondent.
Petitioner's suit for Return of Child was filed on July 19, 2012, within
one-year of A .R.R.'s wrongful retention on or about August 21, 2011.
