911 F. Supp. 2d 601
M.D. Tenn.2013Background
- This Hague Convention/ICARA case concerns Nora Saavedra Aranda and Rosendo Elizondo Serna over the return of two children from Franklin, Tennessee to Mexico after an approved visit.
- Children J. E. (b. 2000) and A. E. (b. 2002) are U.S. citizens; the parents married in Mexico in 1999 and lived in Tennessee before relocating to Mexico in 2003.
- Mexican divorce decree (circa 2007) granted Saavedra custody with Elizondo’s weekend and summer visitation; the decree required return after visits.
- In May 2010 the children visited Elizondo in the U.S. and stayed beyond the summer; Saavedra later sought their return under the Hague Convention.
- Saavedra learned of A. E.’s abuse in Mexico (2009) during the visitation; Elizondo learned of the incidents and refused to return the children in December 2010.
- Petition filed March 29, 2012; trial conducted without a jury on Oct. 24-25, 2012; court issued Findings of Fact and Conclusions of Law denying return and dismissing the petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article 12 one-year/now settled defense governs | Saavedra argues equitable tolling should apply; time delay should not bar return. | Elizondo argues the one-year/now settled defense bars return if not settled, without tolling. | Court rejects equitable tolling; finds defense satisfied; children now settled, so Article 12 applies. |
| Mature child’s objection weighs against return | Saavedra contends children’s preferences are not dispositive. | Elizondo contends mature views support staying in the U.S. | Court finds both children mature and their preferences should be considered, weighing against return. |
| Grave risk of harm defense (Article 13(b)) | Saavedra contends no grave risk upon return. | Elizondo argues return would expose children to harm. | Court finds no grave risk; grave risk defense fails. |
| Discretion under Article 18 to order or deny return | Saavedra argues Court could order return notwithstanding defenses to further Hague aims. | Elizondo argues defenses bar return; discretion not to return. | Court declines to order return, exercising discretion under Article 18 to dismiss petition. |
| Settled status factors under In re Koc framework | Saavedra challenges reliance on settled status without adequate analysis. | Elizondo cites stability, schooling, church attendance, and bonds as settled indicators. | Court finds multiple Koc factors satisfied; children settled in Franklin. |
Key Cases Cited
- March v. Levine, 249 F.3d 462 (6th Cir.2001) (establishes burdens and defenses under ICARA/Hague)
- Lozano v. Alvarez, 697 F.3d 41 (2d Cir.2012) (equitable tolling not applicable to Article 12 now settled defense)
- In re Koc, 181 F.Supp.2d 136 (E.D.N.Y.2001) (lists factors for whether a child is settled in new environment)
- Simcox v. Simcox, 511 F.3d 594 (6th Cir.2007) (narrow interpretation of grave risk standard)
- Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir.1996) (discussion of discretionary aspects under Hague Article 18)