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Gutierrez v. Juarez

United States District Court, D. Arizona

July 28, 2017

Luz Adriana Zaragoza Gutierrez, Petitioner,
v.
Octavio Ramirez Juarez, Respondent.

          ORDER

          Honorable G. Murray Snow United States District Judge.

         Pending before the Court is Petitioner Luz Adriana Zaragoza Gutierrez's Verified Petition for Return of Child A Under the Hague Convention, (Doc. 1). A hearing was held on the matter on July 28, 2017. For the following reasons, the Court grants Zaragoza's Petition.

         BACKGROUND

         Zaragoza and Respondent Octavio Ramirez Juarez are the parents of Child A. Zaragoza and Ramirez are Mexican citizens. Child A was born in Phoenix, Arizona on July 23, 2006. Zaragoza and Ramirez never married, and in November 2009, Zaragoza and Child A returned to Mexico. Ramirez remained in the United States. It was agreed that Child A would remain in Mexico with Zaragoza.

         Beginning in 2013, Zaragoza and Ramirez agreed that Child A would visit Ramirez in the United States for one month each summer. Child A spent a month visiting Ramirez in the summers of 2013, 2014 and 2015, each time returning to Zaragoza in Mexico at the conclusion of the visit.

         Child A again came to the United States in the summer of 2016, under circumstances which Zaragoza and Ramirez dispute.

         According to Zaragoza, Ramirez had been pushing throughout 2015 and 2016 for Child A to come live with him in Phoenix for the 2016-17 school year, but Zaragoza refused, as she believed that Ramirez did not have the time to take good care of Child A. Ultimately, Ramirez's parents came down to Zaragoza in Mexico on July 20, and Zaragoza agreed to another summer visit, on the understanding that Child A would return in a month. Zaragoza testified that she packed one bag for Child A, containing about eight changes of clothes and no other personal belongings. Child A left for the United States on July 21. In August, a week before Child A was to return to school in Mexico, Zaragoza testified, Ramirez told Zaragoza that he would keep Child A in the United States so that she could learn English.

         Ramirez, on the other hand, testified that Zaragoza and Ramirez agreed that Child A would spend two years in the United States and that they would determine what the next steps were depending on how Child A was doing in school after those two years.

         Zaragoza alleges that Ramirez has restricted Child A's communications with Zaragoza, which Ramirez disputes.

         In September 2016, Zaragoza filed a Hague Convention application with the Central Authority of Mexico, seeking the return of Child A. That application was then sent to the United States Department of State.

         Zaragoza now seeks an order from this Court returning Child A to Zaragoza or her agent.

         DISCUSSION

         The International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. § 9001 et seq., implements the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 19 I.L.M. 1501 (“Hague Convention”). A federal district court hearing a case under the Hague Convention does not reach the merits of a custody dispute. See Shalit v. Coppe, 182 F.3d 1124, 1128 (9th Cir. 1999). Rather, the court “is to determine only whether the removal or retention of a child was ‘wrongful' under the law of the child's ‘habitual residence, ' and if so, to order the return of the child to the place of ‘habitual residence' for the court there to decide the merits of the custody dispute, unless the alleged abductor can establish one of a few defenses.” Id.

         The petitioner bears the initial burden of showing that the removal or retention was wrongful. 22 U.S.C. § 9003(e)(1)(A). The burden then shifts to the respondent to demonstrate the applicability of any affirmative defenses. 22 U.S.C. § 9003(e)(2).

         I. Zaragoza has demonstrated that Child A was wrongfully retained in the United States when her habitual residence was Mexico.

         In determining whether a child has been wrongfully removed or detained from her habitual residence, a court must ask the following questions:

(1) When did the removal or retention at issue take place? (2) Immediately prior to the removal or retention, in which state was the child habitually resident? (3) Did the removal or retention breach the rights of custody attributed to the petitioner under the law of the habitual residence? (4) Was the petitioner exercising those rights at the time of the removal or retention?

Mozes v. Mozes, 239 F.3d 1067, 1070 (9th Cir. 2001).

         A. The Retention Took Place on August 13, 2016.

         The retention occurred on August 13, 2016, when Ramirez informed Zaragoza that he intended to keep Child A in the United States. See Mozes, 239 F.3d at 1070 & n.5 (citing case where “mother wrongfully retained children by announcing her intent not to return them” to their home country).

         B. At the Time of the Retention, Child A's Habitual Residence was Mexico.

         The Hague Convention does not define “habitual residence, ” but the Ninth Circuit has provided guidance on this “flexible, fact-specific” inquiry. See Holder v. Holder, 392 F.3d 1009, 1015 (9th Cir. 2004).

First, in order to acquire a new habitual residence, there must be a “settled intention to abandon the one left behind.” This is a question of fact . . . . Second, there must be (A) an “actual ‘change in geography, '” combined with (B) the “passage of ‘an appreciable period of time.'” This period of time must be “sufficient for acclimatization.”

Id. (citing Mozes, 239 F.3d at 1071-78) (internal citations omitted). The “settled intention” that must be considered is that of “the person or persons entitled to fix the place of the child's residence”-that is, the parents. Mozes, 239 F.3d at 1076. In “cases where the child's initial translocation from an established habitual residence was clearly intended to be part of a specific, delimited period[] . . . courts have generally refused to find that the ...


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