Rodriguez v Yanez, 2016 WL 1212412 (5th Cir., 2016)[Mexico] [Exercise of Rights of Custody] [age and maturity defense] [Further development of the record required to determine whether child objected to return to Mexico]

In Rodriguez v Yanez, 2016 WL 1212412 (5th Cir., 2016) Appellant Pedro Antonio Flores Rodriguez (“Flores”) and Appellee Yolanda Ivonne Salgado Yanez (“Salgado”) were the parents of A.S.F.S., an eleven-year-old girl. A.S.F.S. was born in Chihuahua, Mexico on January 6, 2005. A.S.F.S. lived in Mexico until October 2013, when Salgado took her to the United States without Flores’s permission. On July 17, 2014, Flores filed a petition in the Eastern District of Texas seeking the return of A.S.F.S. to Mexico.

The district court appointed a guardian ad litem for A.S.F.S. and held a show cause hearing. After Flores and Salgado completed their testimony, the district court briefly questioned A.S.F.S. in chambers. A.S.F.S. testified that her relationship with her father was poor. She indicated that Flores never spent time with her and did not even speak to her except to ask questions about Salgado’s love life. A.S.F.S. explained that she “would just go to [her] room” when Flores visited Chihuahua because “he was always drunk” and would say “ugly things ... [l]ike dirty words.” She characterized the relationship between her parents as “[f]ighting” and reported that she had seen Flores “push[ ]” Salgado. At two different points, the district court asked A.S.F.S. whether she was happier living in Mexico or the United States. A.S.F.S. testified that she was happier in Texas, although she was happy living in Mexico too.

In December 2014, the district court issued a decision in Salgado’s favor. The district court denied Flores’s petition because he “was not exercising his custody rights at the time of A.S.F.S.’s removal to the United States.” The district court also denied Flores’s petition for the independent reason that A.S.F.S. “objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of [her] views.”

Upon de novo review, the Fifth Circuit concluded that Flores was exercising his custody rights at the time of removal. Salgado testified  that Flores visited A.S.F.S. at least once every six weeks, or around 8 times a year. Salgado also conceded in her brief that Flores “paid the fees” for A.S.F.S.’s public school in Chihuahua.19 “By visiting [A.S.F.S.] and contributing to [her] financial support,” Flores was exercising his custody rights. Despite these clear parallels, Salgado urges that her “mistress relationship” with Flores distinguished this case. That is, like the district court, she contended that any contact that Flores had with A.S.F.S. was merely incidental to seeing her. The Fifth Circuit held that such arguments, however, go to whether Flores was exercising his “custody rights well or badly.” Regardless of whether Flores was interested in seeing A.S.F.S. when he traveled to Chihuahua, the record was undisputed that he did maintain some sort of relationship with her, which is enough to demonstrate exercise. 
Accordingly, the district court erred in concluding that Flores was not exercising his custody rights at the time of removal.


The Fifth Circuit observed that in order to establish the age and maturity defense Salgado had to  establish two distinct facts: (a) A.S.F.S. “has attained an age and degree of maturity at which it is appropriate to take account of [her] views”; and (b) A.S.F.S. “objects to being returned.” The main thrust of Flores’s briefing was that Salgado has not established that A.S.F.S. “objects to being returned.” The Court noted that is has “declined to hold, as a matter of law, that any particular age is sufficient or insufficient to meet the defense.” Whether A.S.F.S. “objects to being returned” was more difficult. Salgado and A.S.F.S.’s guardian ad litem both assert that “A.S.F.S. listed [the following] reasons for her objection to returning to Mexico:” • Her father’s psychological harassment of her mother;• Her father’s physical abuse of her mother; • Her father’s use of foul language; • His interrogation of her for information on her mother; • Her fear of her father.

Flores argued that these reasons cannot form the basis of an objection under the Convention. He contended that a wrongfully removed child may not object to returning to her country of habitual residence because she does not want to live with the petitioning parent. The Fifth Circuit held that whether the child wants to live with the abducting parent is very relevant to her interpretation of her immediate “interests.” Indeed, it is likely the most important consideration. A rule formally prohibiting objections based upon this consideration would result in hearings full of winks and nods. An objection by the child to being returned, if found to be a considered and mature decision, will be honored whether or not it rests in part on her objection to living with the abducting parent.  In its order, the district court found that it was “appropriate to take into account A.S.F.S.’s views” because she “exhibited strong cognitive and social abilities, and clearly expressed a desire to remain with [Salgado] in the United States.” The court also noted that A.S.F.S.’s testimony “that she would be happier remaining in the United States because she would have greater educational opportunities, and the ability to learn more languages” “[f]urther confirm[ed] her maturity.” Although these findings adequately explained why A.S.F.S. was mature enough to object, they only hinted at whether she did object and, if so, for what reasons. Rather than speculate, the Fifth Circuit vacated this portion of the district court’s order and remanded to allow the court to reassess whether Salgado had met her burden in light of the legal principles established by the decision. On remand, the district court was ordered to engage in a new colloquy with A.S.F.S. and enter more detailed findings regarding its eventual conclusion.

Gomez v Fuenmayor 2016 WL 454037(11th Cir, 2016)[Venezuela] [Petition denied][Grave Risk of Harm established where violence directed at mother]

In Gomez v Fuenmayor 2016 WL 454037(11th Cir, 2016) the Eleventh Circuit held that sufficiently serious threats and violence directed against a parent can nonetheless pose a grave risk of harm to a child as well.  

This lawsuit ariose from a battle between Salvi and Naser over custody of their four-year-old daughter, M.N. All three individuals were citizens of Venezuela. Salvi and Naser were never married and Naser was now married to Anibangel Molina Anais (“Molina”). Beginning in 2012, Naser and Molina made repeated threats against Salvi and his family. Molina called Salvi’s mother and told her that if Salvi ever returned to Molina’s home seeking to visit his daughter, it would be the last thing Salvi did in his life. Then, in July 2012, Naser and Molina left Venezuela with M.N. and took her to Miami. Salvi filed a petition under the Convention in the United States District Court for the Southern District of Florida and successfully obtained an order requiring that M.N. be returned to Venezuela in his custody. During the course of the court proceedings in Miami, the district judge awarded Salvi primary custody of M.N. while granting Naser visitation rights to be exercised in the presence of a court-appointed supervisor, Karina Lapa. At these visits, which occurred in the United States, Lapa noted Naser’s hostility toward Salvi, including hearing threats made over the course of the ten visits she supervised. Lapa specifically testified that Naser repeated that she was going to make Salvi “pay” for what he had done and said that “something is going to happen” to him when Naser regained custody over M.N. Lapa relayed these threats to Salvi. On one occasion, Lapa found Naser’s mother standing outside the visitation site, reportedly trying to determine where Salvi was coming from with M.N. Lapa said that she was “very concerned” about M.N.’s safety. Upon returning to Maracaibo in Venezuela, Salvi and M.N. went into hiding, preventing Naser from visiting her. At a Venezuelan court hearing attended by both Salvi and Naser shortly after their return to Maracaibo, Naser was accompanied by armed guards, who also accompanied her to every subsequent court date. In October 2013, a Venezuelan court ordered a continuation of the United States federal district court’s custody arrangement, granting Salvi primary custody. Upon hearing this ruling, Naser had an outburst in court, threatening to kill Salvi. Subsequently, Salvi’s girlfriend, Claudia Poblete, picked him up from the courthouse; they were followed for several blocks by individuals on motorcycles. Three days later, Poblete dropped off Salvi, Salvi’s sister, and M.N. at Salvi’s parents’ home after attending a birthday party. The windows of Poblete’s car were tinted black, making it impossible to see inside the vehicle. While driving home, Poblete was shot at and struck three times. Additional bullet holes were found in the side of the car, the headrest of the passenger seat, and above the child seat. Salvi testified that he did not know who shot Poblete because he was not present when it happened. Approximately a week later, Salvi saw Naser at a courthouse in Venezuela and heard Naser telling public defenders there that she was concerned about M.N.’s safety because the earlier shooting had been intended for Salvi. Salvi had told no one about the incident except the attorney he had met with that day. The violence continued on November 2, 2013, as several people broke into Salvi’s parents’ building in Venezuela. The individuals shattered one of the windows of Salvi’s mother’s car and spray-painted on the side of the car in Spanish, “You are going to die.” Moreover, Salvi’s sister and mother testified that they had seen several men enter the garage that housed the car carrying a package and then leave without the package. Later, they discovered that a package containing twenty-five glassine envelopes of cocaine had been placed in the mother’s car. Salvi does not know who broke into and defaced his mother’s car. Throughout this time frame, on approximately five occasions, Naser’s brother and several armed men went to schools in Venezuela where Salvi’s sister worked, seeking information about when she arrived, whom she traveled with, and whether her brother came to the school. They offered money to employees at the schools to obtain this information. On December 20, 2013, a Venezuelan court affirmed the decision granting Salvi primary custody of the child and awarding Naser supervised visits. Just over a week later, Salvi’s mother was arrested after a search of her car by the Venezuelan National Guard discovered drugs. She testified that, as with the first time drugs were planted in her car, she did not know who placed the drugs there. The investigation was reportedly unusual and the charges against her were later dropped. Based on these facts, Salvi testified in federal district court that he feared for his daughter’s safety because of the violence directed against him and his family and the possibility that M.N. would live with Molina, who, Salvi claimed, is involved in trafficking drugs. Salvi added that he made several unsuccessful attempts to obtain from the Venezuelan government protection for himself and his family. Eventually, he said that he was advised by government officials to leave the country because he could not be protected in Venezuela.  On May 7, 2014, the Venezuelan Family Court issued an order revoking Salvi’s custody rights. Salvi, his sister, his mother, and M.N. all have pending asylum applications in the United States.
The district court concluded that, under the Convention, Naser,  the mother, had established a prima facie case requiring the return of her daughter because the father, Salvi, had “wrongfully removed the child from her habitual residence in Venezuela.” However, the district court concluded that the Convention did not require M.N. to be returned to Venezuela because doing so would cause her to face “a grave risk of harm or to be placed in an intolerable situation.” The court highlighted the repeated threats made by Naser and her husband, Molina against Salvi and his family, that Molina was a fugitive “who has repeatedly demonstrated a disregard for the law,” the repeated presence of armed guards at court hearings, reports that Salvi and his family were followed on multiple occasions, the vandalism and destruction of Salvi’s mother’s car, the planting of drugs in that car, and the shooting of Salvi’s girlfriend. The district court squarely laid the blame for these repeated acts on Naser and Molina: The Eleventh Circuit found that the evidence had established that [Naser] and Molina directly made threats, and the evidence also supported the finding that it was highly probable that [Naser] and Molina were involved in the acts of violence against [Salvi] and his family. These acts of violence, although not specifically directed at the child, placed her in a perilous position with a high risk of danger. Even setting aside the risk of physical harm, the Convention’s exception also applies to the grave risk of psychological harm. It seemed almost self-evident that a child raised in an environment where one parent is engaged in a sustained campaign of violence (including the use of deadly force) against the other parent faces just such a grave risk.
To the extent that Naser argued that none of these incidents directly affected M.N. and that no physical harm had yet come to M.N., she was correct. But, the Court previously held  the inquiry under the Convention is not whether the child had previously been harmed. Rather, the question is whether returning the child to Venezuela would expose her to a grave risk of harm going forward. The uncontroverted evidence of intended and actual violence—including the shooting—directed at Salvi and his family yielded every indication of posing a grave risk to those around him, including his daughter. The district judge correctly found that clear and convincing evidence supported a determination that M.N. would face a grave risk of harm if she were to be returned to Venezuela, and that Naser’s petition should be denied. The judgment of the district court was affirmed.

Stovall v Gallegos, 2016 WL 1644897(D.Oregon, 2016) [Mexico] [Fees and Costs]

Action dismissed after child returned to Mexico. Award of $12,010 in attorneys fees not clearly inappropriate where respondent was retired as he was receiving a pension and the amount was reasonable in light of the purpose of attorneys fees under the  Convention is to deter violations of the convention. Loadstar approach utilized. Attorneys rate of $300 per hour was reasonable but rates of legal assistants were reduced from $175 and $125 to $100 because they did not provide information as to the reasonable hourly rates in Portland and did not provide information as to their experience as legal assistants. Costs are generally awarded to the prevailing party in a civil action unless the court directs otherwise. Fed R. Civ. P. 54(d). Costs are limited to those defined in 28 USC '1920. Costs of $3000 awarded to petitioner.

Sabogal v Paula Velarde 2016 WL 9906163 (WD Md., 2016) [Peru] [Petition Conditionally Granted]

 Petition for return was granted conditionally if  the following pre-conditions had been satisfied: 1. The October 2014 appeals court order of temporary custody in favor of Correa has been vacated and the underlying temporary custody order in favor of Velarde has been reinstated; 2. All pending criminal complaints, investigations, or charges in Peru against Velarde, initiated by or with the assistance of Correa, have been dismissed or closed; and 3. Correa agrees in writing to the undertakings listed in the accompanying Order. Although Correa had successfully arranged for the vacating of the temporary custody order in his favor and the dismissal of one of the criminal matters against Velarde, he had not arranged for the final dismissal of the Disobeying and Resisting Authority charge. Because Correa had not satisfied the conditions for entry of a final order to return the Children to Peru, his motion that he satisfied the conditions was denied.

Ochoa v Suarez 2016 WL 9647646 (WD Mich, 2016) [Mexico] [Guardian ad litem]

Report and recommendation of US Magistrate Judge that certain facts and law be considered established and that the court order the  guardian ad litem to report on the issues, including allegations of grave risk, age and degree of maturity, credibility, and potential undue influence. There is precedent for such appointment in Hague Convention cases. See, e.g., Lieberman v. Tabachnik, 625 F.Supp.2d 1109, 1114B15 (D.Colo.2008); Garcia v. Pinelo, 2015 WL 4910654, at *2B3 (N.D. Ill. Aug 16, 2015); Yaman v. Yaman, 730 F.3d 1, 6 (1st Cir.2013) (noting that the district court appointed a guardian ad litem to issue a report on the children's behalf); Bowen v. Bowen, 2014 WL 2154905, at *3 (W.D.Pa. May 22, 2014)].

Neuman v Neuman, 2016 WL 2864969 (ED Michigan) [Mexico] [Petition granted] [Habitual Residence]

 Almost four years in Mexico was sufficient to render Mexico the children's country of habitual residence. Indicators suggestive of acclimatization include social engagements, participation in sports programs and other excursions, meaningful connections with people and places,and most especially,academic activities, which are “among ‘the most central...in a child's life.’ Even though the Mexico assignment was a temporary one, Mexico was, both at the time of removal and for some years prior, the exclusive site of the children's day-to-day lives and experiences. It was in Mexico where the Neumanns maintained a home and a majority of their belongings.While respondent stressed that there was no settled intent to remain in Mexico permanently, this argument ignored that the Sixth Circuit has specifically rejected the notion that the parents' subjective intent should control.  The Sixth Circuit deplored this “subjective intent” approach, which “made seemingly easy cases hard and reached results that are questionable at best,” Robert, 507 F.3d at 990-991. 

Minette v Minette 2016 WL 491832 (SD Ohio, 2016) [Italy] [Fed & State Jud Rem] [Abstention]

Motion for abstention and stay pursuant Younger v. Harris, 401 U.S. 37 (1971). Motion granted.