United States District Court, D. Arizona
Honorable G. Murray Snow United States District Judge.
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.
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
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.
again came to the United States in the summer of 2016, under
circumstances which Zaragoza and Ramirez dispute.
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.
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.
alleges that Ramirez has restricted Child A's
communications with Zaragoza, which Ramirez disputes.
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.
now seeks an order from this Court returning Child A to
Zaragoza or her agent.
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.”
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).
Zaragoza has demonstrated that Child A was wrongfully
retained in the United States when her habitual residence was
determining whether a child has been wrongfully removed or
detained from her habitual residence, a court must ask the
(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).
The Retention Took Place on August 13, 2016.
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
At the Time of the Retention, Child A's Habitual
Residence was Mexico.
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
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 ...