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Diaz v. Rios Ibarra

United States District Court, D. Arizona

September 13, 2019

Valentin Zarate Diaz, Petitioner,
v.
Laura Andrea Rios Ibarra, Respondent.

          ORDER

          Dominic W. Lanza United States District Judge.

         INTRODUCTION

         Valentin Zarate Diaz (“Father”) and Laura Andrea Rios Ibarra (“Mother”) are the parents of Son V, a minor child. On May 16, 2019, Father filed a petition under the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. § 9001 et seq., which implements the provisions of the Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”). (Doc. 1.) The petition alleges that Mother improperly removed Son V from Mexico at some point between August 31 and September 3, 2018, and took him to live with her in Arizona. The petition requests, among other things, that the Court “[o]rder immediate return of Son V to [Father] or to an agent of [Father].” (Id. at 14.)

         FINDINGS OF FACT

         The parties agreed to forgo an evidentiary hearing and instead submit this case on the briefs. (Doc. 23.) Accordingly, the following findings of fact are based on Father's Petition (Doc. 1), Mother's answer (Doc. 21), the documents included as attachments to the parties' briefs (Docs. 26-1, 26-2, 27-1), and other undisputed facts appearing in the parties' briefs:

         Father and Mother are both citizens of Mexico. (Doc. 1 ¶¶ 10-11; Doc. 21 ¶¶ 10-11.) They have never been married. (Doc. 1 ¶ 14; Doc. 21 ¶ 14.) They are the parents of Son V, who was born in Mexico in February 2012. (Doc. 1 ¶ 16; Doc. 21 ¶ 16.)[1] They “intermittently lived together for several months when Son V was an infant” but “have not lived together since September 2014.” (Doc. 26-1 at 49 ¶ 4.) Their relationship was “tumultuous.” (Doc. 26-1 at 63 ¶ 7.) Following their break-up, Son V resided with Mother (in a house owned by Father)[2] but Father remained actively involved in Son V's life. (Doc. 1 ¶ 16; Doc. 21 ¶ 16.)

         On November 19, 2015, Father and Mother entered into an agreement addressing their respective rights concerning Son V (the “Agreement”). (Doc. 1 ¶ 19; Doc. 21 ¶ 19; Doc. 26-1 at 7-9.) The parties have provided a Spanish-to-English translation of the Agreement, which contains the following five clauses:

(1) Father must pay “Child Support [in] the amount equal to . . . 20%” of Father's wages.
(2) The parties agree that “the days of cohabitation with [Father] will be any day of the week within a prudent schedule for the child, provided that [Father] doesn't come in an inconvenient state, and that he doesn't interrupt the child's chores, ” and further agree that if either party has “an event that requires the child, they will have no inconvenient.”
(3) “[T]he address where the child will reside will be [a particular house in Sonora, Mexico] where the child currently lives with [Mother].”
(4) Father must pay 60% of Son V's tuition and Mother must pay 40%.
(5) “In the matter of school vacations, these will be open for both parties, that is to say, they have no objection in both sharing th[ese] holidays, and in Christmas vacations, the child will spend the 25th with [Mother] and from the 26 of December to January 02 of 2016, the child will spend it with [Father] . . . [during which time] the child will be under the care of [Father] in his home, in the understanding that if they go out of the city, it must be upon request of [Mother].”

(Doc. 26-1 at 7-9.) Additionally, the Agreement contains a provision certifying that “everything relating to the present agreement, is su[b]mitted to the jurisdiction of the pertinent judge of this judicial district” and concludes with a joint request by Mother and Father for the Agreement to be “su[b]mitted to the Judge of First Instance in Family Matter . . . for its revision and approval in the terms of the [laws of] the State of Sonora.” (Id.)

         On two different occasions in July 2018, Son V spent 10 days with Father-the first during a vacation with Father to Puerto Vallarta and the second when Mother traveled to the United States. (Doc. 26-1 at 51 ¶ 14.)[3]

         On August 23, 2018, Mother requested that Father sign a passport application for Son V to travel to the United States. (Doc 1 ¶ 24; Doc. 21 ¶ 24.) Father refused to sign it. (Doc. 1 ¶ 25; Doc. 21 ¶ 25.)

         Sometime between August 31, 2018 and September 3, 2018, Mother moved with Son V to the United States. (Doc. 1 ¶ 28; Doc. 21 ¶ 28; Doc. 26-1 at 64 ¶ 17.) Father did not consent to Mother's removal of Son V from Mexico. (Doc. 26-1 at 50 ¶ 6.) Mother's purpose in moving to the United States was to accept a job offer to work as a civil engineer at an engineering firm in Arizona. (Doc. 26-1 at 63-64 ¶¶ 2, 13-14.)

         On September 12, 2018, Father filed a “Motion to Enforce Agreement” with the family court in Sonora, Mexico. (Doc. 26-2 at 48-56 [translated version of document].) Among other things, Father argued in this motion that Mother had violated the third clause in their Agreement, which required Son V to reside at a particular home in Sonora, Mexico. (Id. at 51.) Father also stated in the motion that “it is true that [Mother] can freely decide where she will live with my minor child” and argued that the violation of the third clause arose from Mother's “refus[al] to give me true and necessary information of her whereabouts for me to exercise my rights as a parent.” (Id.)[4]

         On October 3, 2018, Mother called Father from the United States. (Doc. 1 ¶ 34; Doc. 21 ¶ 34.) During this call, Father spoke to Son V. (Id.)

         On or about October 15, 2018, the Mexican family court denied the “Motion to Enforce Agreement” that Father had previously filed. (Doc. 27-1 at 38.) The court's rationale for denying the motion was that “considering the drastic change in circumstances, ([Mother's] address), it is not materially possible to enforce the agreement regarding parenting time the way the moving party is requesting.” (Id.)

         On October 17, 2018, Mother filed a “Notice of Relocation” with the Mexican family court. (Doc. 26-1 at 64 ¶ 17 [Mother's declaration]; Doc. 26-2 at 59 [translated version of document].) This notice explained that Mother had moved to the United States for “personal and professional reasons.” (Id.)

         On October 18, 2018, Father filed a “Motion to Revoke” the order denying his motion to enforce. (Doc. 27-1 at 38-39.)

         On October 23, 2018, the Mexican family court issued an order denying the “Motion to Revoke.” (Doc. 27-1 at 40-42.) In this order, the court explained that it hadn't denied Father's previous motion for any merits-based reason-instead, it had denied the motion because Mother's relocation to the United States meant that “it is not possible to effectuate the enforcement of the agreement . . . by virtue of the fact that the minor child no longer lives in the home where it was agreed he would be placed.” (Id. at 41.) The court further clarified that Father's “rights are preserved and he may exercise them in the appropriate procedure and form.” (Id.)

         On November 24, 2018, Mother and Son V “arrived unannounced at [Father's] place of work in Nogales, Sonora, Mexico.” (Doc. 1 ¶ 39; Doc. 21 ¶ 39; Doc. 26-1 at 65 ¶¶ 23-24.) Father ended up spending about one hour with Son V. (Doc. 1 ¶ 41; Doc. 21 ¶ 41.) After this visit was complete, Mother returned to the United States with Son V. (Id.)

         In January 2019, Mother (unaccompanied by Son V) visited Father at his parents' home in Mexico, where she again requested that Father sign Son V's passport application. (Doc. 1 ¶ 45; Doc. 21 ¶ 45; Doc. 26-1 at 65 ¶ 28.) Father again refused to sign it. (Id.)

         On July 9, 2019, Mother filed a “Motion to Modify Parenting Time With Our Minor Child” with the Mexican family court. (Doc. 26-1 at 65 ¶ 31 [Mother's declaration]; Doc. 26-2 at 11-16 [translated version of document].) In this motion, Mother described the Agreement as a document that ...


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