Asuncion Mota v. Rivera Castillo
2012 U.S. App. LEXIS 17154
| 2d Cir. | 2012Background
- Elena Michelle Asuncion Rivera is the Mexican citizen daughter of Mota and Rivera Castillo.
- Rivera Castillo moved to the United States in 2007; Elena remained in Mexico with Mota during early years.
- In 2010 the parents arranged for Elena to be brought to New York; attempts to follow were blocked at the border; Elena began living with Rivera Castillo in the US.
- Mota sought Elena's return to Mexico under the Hague Convention as implemented by ICARA in November 2011; the district court held Elena’s habitual residence was Mexico and that Rivera Castillo wrongfully retained her in the US.
- Mexico’s patria potestas recognizes Mota’s custodial rights; the district court found Rivera Castillo’s retention violated those rights and that no exception to return applied.
- The Second Circuit reviews factual findings for clear error and legal questions de novo, applying Gitter v. Gitter to determine habitual residence and wrongful retention; the court affirmed and remanded for return of Elena to Mexico.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Elena’s habitual residence Mexico at retention? | Mota argues habitual residence remained Mexico. | Rivera Castillo argues April 2010 move to US shifted habitual residence. | Habital residence fixed in Mexico; no clear error in district court’s finding. |
| Was the retention of Elena wrongful under the Hague/ICARA? | Retention violated Mexican custody rights since Mota would have custodial rights but-for retention. | Retention was lawful under opposing views or consent arguments. | Retention was wrongful; return mandated. |
| Do consent or other Article 13/Article 12 exceptions apply? | Any consent was conditioned on Mota joining in New York; condition not met, invalidating consent. | Consent/settled environment arguments support exception. | Article 13 not applicable; Article 12 argument waived/not established; no exception to bar return. |
Key Cases Cited
- Gitter v. Gitter, 396 F.3d 124 (2d Cir. 2005) (core framework for habitual residence and wrongful retention; deference to district findings on intent; de novo on habitual residence)
- In re B. Del C.S.B., 559 F.3d 999 (9th Cir. 2009) (habitual residence is a legal precept under Convention—focus is return for custody proceedings)
- Blondin v. Dubois, 189 F.3d 244 (2d Cir. 1999) (narrow reading of exceptions to return under Hague)
- Baxter v. Baxter, 423 F.3d 363 (3d Cir. 2005) (consent defense under Article 13 considered with conditional nature of consent)
- Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001) (extensive discussion on acclimatization vs. shared parental intent)