183 F.Supp.3d 1182
M.D. Fla.2016Background
- Petitioner (Mexican citizen, mother) filed a Hague Convention petition in U.S. District Court seeking the return of her son G.V.B., born in Florida in 2008, who Respondent (father, Mexican citizen, undocumented in U.S.) retained in Florida after a visit beginning March 2014.
- Petitioner and Respondent lived together in Florida until December 2009 when Petitioner and the child moved to Guanajuato, Mexico; the child lived there continuously from Dec. 2009 to March 2014 (aside from two one-month visits to Florida).
- The parties had no formal custody order; under Guanajuato law, parental authority (patria potestas) vests in parents who recognized the child, and no decree severed Petitioner’s rights.
- Petitioner expected the March–April 2014 visit to end by April 28, 2014; Respondent refused to return the child after that date and later said he would not send the child back at all.
- After administrative efforts failed, Petitioner filed the Hague petition; after a bench trial the Court found by a preponderance that the child was habitually resident in Mexico when retained and that the retention violated Petitioner’s custody rights.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Habitual residence at time of retention | Mother: child’s habitual residence was Guanajuato, Mexico (lived there 2009–2014; acclimated; parents intended Mexico as residence) | Father: U.S. (Florida) always the child’s habitual residence; mother unilaterally moved child | Held: Child’s habitual residence changed to Mexico by Apr. 28, 2014 (settled parental intent, physical relocation, acclimation) |
| Rights of custody under Mexican law | Mother: patria potestas under Guanajuato Civil Code gave her custody rights (including residence decision) | Father: custody must be judicially established to qualify | Held: Mother had custody rights by operation of law (patria potestas) that were being exercised and were breached by retention |
| Consent / acquiescence / mature-child exception | Mother: she continually objected and sought return; no formal consent | Father: mother acquiesced or consented to child remaining; child prefers to stay | Held: No consent or acquiescence; child (age 7) too young / no competent objection shown |
| Grave-risk / settled-child exception (one-year) | Mother: generalized Mexico danger insufficient; child not sufficiently settled in U.S. | Father: travel advisory and child’s established life in Florida mean return would be unsafe or child is settled (>1 year) | Held: Father failed to prove clear-and-convincing grave risk; not established that child is well-settled; return ordered (court would exercise discretion even if settled) |
Key Cases Cited
- Abbott v. Abbott, 560 U.S. 1 (U.S. 2010) (explaining Hague Convention purpose to secure return for custody determinations)
- Baran v. Beaty, 526 F.3d 1340 (11th Cir. 2008) (discussing U.S. implementation of Hague Convention)
- Pielage v. McConnell, 516 F.3d 1282 (11th Cir. 2008) (elements for wrongful retention: retention, custody rights, exercise of those rights)
- Chafin v. Chafin, 742 F.3d 934 (11th Cir. 2014) (timing and burden for habitual residence inquiry)
- Lozano v. Montoya Alvarez, 134 S. Ct. 1224 (U.S. 2014) (mandate to return wrongfully removed/retained child; narrow exceptions)
- Furnes v. Reeves, 362 F.3d 702 (11th Cir. 2004) (patria potestas constitutes rights of custody under Convention)
- Seaman v. Peterson, 766 F.3d 1252 (11th Cir. 2014) (threshold requirements for Hague actions)