423 F.Supp.3d 459
M.D. Tenn.2019Background:
- Child (JINC) born in Honduras in 2015; Respondent (Lamothe) took the child to the U.S. on July 14, 2017, arriving Nashville July 29, 2017. Petitioner (Nunez) filed a Hague/ICARA petition within one year.
- Parties stipulated: habitual residence Honduras; child under 16; removal occurred July 14, 2017; Petitioner is the father; Petitioner filed within one year.
- Honduran Family Code provides joint parental authority and requires written authorization from the other parent for one parent to take a child out of the country (a ne exeat right).
- Fact disputes about the extent of Petitioner’s caregiving after separation; court found Petitioner maintained regular contact and sought return immediately after removal.
- Respondent raised two Hague defenses: (1) grave risk of harm to the child if returned (based on alleged threats by Petitioner) and (2) Petitioner’s subsequent acquiescence to the child remaining in the U.S.
- Court found Petitioner proved wrongful removal and exercise of custody rights; rejected both affirmative defenses for failure of proof and ordered return of the child to Honduras.
Issues:
| Issue | Nunez (Plaintiff) | Lamothe (Defendant) | Held |
|---|---|---|---|
| Whether removal breached Petitioner’s custody rights under Honduran law | Honduran code gives joint parental authority; written authorization required to take child out of country → ne exeat right violated | Denied existence or exercise of petitioner’s custody rights after separation | Held: Honduran law vests joint parental authority and a ne exeat right; removal without written authorization breached custody rights |
| Whether Petitioner was exercising custody rights at time of removal | Regular contact: child dropped off at father’s 5 days/week; financial support; sought Honduran Central Authority promptly | Claimed Petitioner largely stopped hands-on care after breakup; babysitter/Grandmother cared for child | Held: Under a liberal standard, petitioner’s regular contact and prompt actions satisfied exercise of custody rights |
| Grave-risk exception (Art. 13(b)) — would return expose child to physical/psychological harm? | N/A (respondent bears burden) | Alleged petitioner stalked/threatened her and once pointed a loaded gun while child was present; argued risk if returned | Held: Respondent failed to prove grave risk by clear and convincing evidence: allegations uncorroborated, did not show grave risk to the child, and Honduran courts were presumed able to protect the child |
| Subsequent acquiescence (Art. 13(a)) — did petitioner consent or acquiesce to the child remaining in U.S.? | Petitioner sought return immediately and pursued Central Authority and litigation | Pointed to texts and a “thumbs-up” emoji as acquiescence | Held: Texts/emojis and casual messages insufficient; no formal or consistent acquiescence shown; defense fails |
Key Cases Cited
- Friedrich v. Friedrich, 983 F.2d 1396 (6th Cir. 1993) (establishes prima facie wrongful removal analysis under the Convention)
- Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996) (articulates liberal standard for finding exercise of custody rights and narrowness of defenses)
- Abbott v. Abbott, 560 U.S. 1 (2010) (ne exeat rights constitute "rights of custody" under the Hague Convention)
- Whallon v. Lynn, 230 F.3d 450 (1st Cir. 2000) (district court jurisdiction limited to wrongful removal analysis, not merits of custody)
- Charalambous v. Charalambous, 627 F.3d 462 (1st Cir. 2010) (grave-risk inquiry must focus on risk to the child, not solely to a parent)
- Cuellar v. Joyce, 596 F.3d 505 (9th Cir. 2010) (grave-risk exception applies only in extreme cases; general policy favors return so home-country courts adjudicate custody)