United States District Court, D. Arizona
DAVID G. CAMPBELL, District Judge.
Petitioner Alger Iván Rodriguez Aguilera has filed a "Petition for Return of Child under the Hague Convention." Doc. 1. Respondent Gabriela Samaniego De Lara opposes the petition. The Court held an evidentiary hearing on July 9, 2014. For the reasons that follow, the Court will grant the petition.
Petitioner and Respondent are the parents of a nine-year-old daughter, referred to herein as "I.R., " who was born in Aguascalientes, Mexico in 2004. Petitioner and Respondent were not married at the time, but began living together in Aguascalientes after I.R. was born. Respondent and I.R. moved out of the home in 2006, and, after a period of reconciliation, moved out again in 2008.
Respondent continued to live in Aguascalientes with I.R. until July of 2013. The relationship between Petitioner and Respondent was difficult during this time, but the evidence demonstrated that Petitioner maintained a relationship with I.R. Between 2008 and 2013, I.R. attended a private school in Aguascalientes, had medical insurance, was involved with numerous family members on both sides, and had friends. Using a tourist visa, Respondent left Aguascalientes with I.R. on July 5, 2013, telling Petitioner that she and I.R. would visit Respondent's mother in Arizona for one month and would then return. After arriving in Arizona, Respondent informed Petitioner that she and I.R. would not return. Petitioner asks the Court to apply the Hague Convention and order that I.R. be returned to Mexico until custody rights can be resolved in a custody action now pending in the Mexican courts.
II. The Hague Convention and ICARA.
The Hague Convention on the Civil Aspects of International Child Abduction seeks to deter parents from moving their children across international borders in order to gain the upper hand in custody disputes. See Cuellar v. Joyce, 596 F.3d 505, 508 (9th Cir. 2010). With a few narrow exceptions, a court must return the child to its country of habitual residence so that the courts of that country can determine custody. Id. Both the United States and Mexico are signatories to the Hague Convention and are Contracting States within its meaning. Congress enacted the International Child Abduction Remedies Act, 42 U.S.C. § 11601 et seq. ("ICARA"), to implement the Convention.
The objectives of the Convention are "to secure the prompt return of children wrongfully removed to or retained in any Contracting State, " and "to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States." Convention, Art. 1 (reprinted at 51 Fed. Reg. 10, 494). "An action under the Convention and ICARA is not an action to determine the merits of custody rights[.]" Koch v. Koch, 450 F.3d 703, 711 (7th Cir. 2006).
Under Article 12 of the Convention, the Court must order the return of a minor child to its country of habitual residence if the child was wrongfully removed from that country. Removal of a child is wrongful where:
(a) it is in breach of rights of custody attributed to a person... under the law of the state in which the child was habitually resident immediately before the removal or retention; and
(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
Convention, Art. 3.
Even when a child has been wrongfully removed, the Court can decline to order the child's return if certain exceptions are satisfied. ICARA characterizes these exceptions as "narrow." 42 U.S.C. § 11601(a)(4). Four exception are relevant in this case. The Court may decline to return I.R. if Respondent shows that (1) Petitioner was not exercising his custody rights at the time of removal (by a preponderance of the evidence), (2) return of the child to Mexico would present a grave risk of physical or psychological harm to the child (by clear and convincing evidence), (3) return of the child would present a grave risk of placing the child in an intolerable situation (by clear and convincing evidence), or (4) the child objects to being returned and has attained an age and degree of maturity sufficient for the Court to take account of her views (by a preponderance of the evidence). Convention, Art. 13; 42 U.S.C. § 11603(e).
At the beginning of the evidentiary hearing, counsel for Petitioner and Respondent agreed that I.R. was habitually resident in Mexico immediately before her removal and that Petitioner had custody rights under Mexican law. In addition, Petitioner's verified petition and supporting affidavit make a sufficient showing that Petitioner was exercising his custody rights at the time of removal. Given these established facts, Respondent's removal of I.R. was "wrongful" within the meaning of Article 3 of the Hague Convention and the Court must order I.R.'s return to Mexico unless Respondent has established one or more of the exceptions set forth above.
The Court will discuss each of the exceptions addressed by Respondent at the hearing. This discussion includes factual findings made by the Court on the basis of the testimony and documents presented during the hearing, including the Court's credibility determinations.
A. Petitioner's Exercise of Custody.
To satisfy the Convention's requirement that he was exercising custodial rights at the time of removal, Petitioner need not have had exclusive or even primary custody of I.R. Where a father has remained in regular contact with a child, visited the child, and provided financial support, the father has exercised sufficient custody within the meaning of the Hague Convention. Asvesta v. Petroutsas, 580 F.3d 1000, 1018 (9th Cir. 2009). As the Ninth Circuit explained:
if a person has valid custody rights to a child under the law of the country of the child's habitual residence, that person cannot fail to exercise' those custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child. Once it determines that the parent exercised custody rights in any manner, the Court should stop - ...