A.A.M. v. J.L.R.C.
2012 U.S. Dist. LEXIS 2885
E.D.N.Y2012Background
- Mother Mexican resident and citizen; father Mexican resident of New York; child is a five-year-old Mexican-born girl; father took physical custody in New York; mother sought return under the Hague Convention and ICARA; proceedings included bench trial and consideration of Mexican law; court found habitual residence was Mexico and ordered return.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Hague Convention applies to wrongful retention | Mother argues retention was wrongful under Article 3. | Father argues defenses bar return or that agreement controls. | Yes; retention wrongful under Article 3; return ordered. |
| Habitual residence of the child before removal | Child habitually resident in Mexico pre-removal. | Not clearly stated; implied preference for residential location in New York. | Child habitually resident in Mexico before removal. |
| Choice of law governing custody rights and agreement | Mexican law governs both custody rights and the agreement. | New York or other law could apply; not supported. | Mexican law governs. |
| Whether any affirmative defenses apply to defeat return | No defense shown that would justify retention. | Ambiguity about consent and potential defenses. | None of the defenses proven; return ordered. |
Key Cases Cited
- Gitter v. Gitter, 396 F.3d 124 (2d Cir. 2005) (wrongful removal/retention framework; habitual residency standard guidance)
- Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001) (habituation and residency considerations in Hague cases)
- Kijowska v. Haines, 463 F.3d 583 (7th Cir. 2006) (limits of Gitter approach; pre-removal residence crucial in A to B cases)
- Whallon v. Lynn, 230 F.3d 450 (1st Cir. 2000) (choice-of-law considerations in ICARA/Hague contexts)