125 F. Supp. 3d 794
N.D. Ill.2015Background
- Petitioner Raul Salazar Garcia (Mexico) filed under the Hague Convention/ICARA to compel return of his minor son D.S. from Respondent Emely Galvan Pinelo (Chicago).
- In July 2013 the parents agreed D.S. would move to Chicago for a school year and that at year-end D.S. would decide whether to remain or return to Monterrey.
- D.S. lived in Chicago for the 2013–2014 school year, adapted socially and academically but expressed a desire to return to Mexico at the end of the year.
- Salazar bought D.S. a plane ticket to Monterrey and, after Galvan kept the child in the U.S., filed the Hague petition alleging wrongful retention in July 2014.
- The court held an evidentiary hearing to resolve (1) scope and intent of the parental agreement, (2) parties’ intent about abandoning Mexico, and (3) D.S.’s acclimatization to the U.S.; it found Salazar’s and D.S.’s version credible.
- Court concluded D.S.’s habitual residence was Mexico in July 2014, Salazar retained custody rights (patria potestas) under Nuevo León law, Galvan’s retention was wrongful, and no Hague defenses (consent/acquiescence) applied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Habitual residence in July 2014 | Salazar: Mexico; parents intended only a 1-year stay and child would decide | Galvan: Parties would reevaluate after a year; possibly intended U.S. residence | Mexico was D.S.’s habitual residence because parents lacked mutual intent to abandon and child had not sufficiently acclimatized to U.S. |
| Whether Salazar had custody rights under Mexican law | Salazar: As biological father he retained patria potestas (joint parental authority) under Nuevo León law | Galvan: Mexican custody order awarding physical custody to mother and specifying visitation extinguished patria potestas, leaving only access rights | Salazar retained patria potestas and thus rights of custody; Nuevo León law treats patria potestas as distinct from physical custody and the order did not clearly extinguish it |
| Wrongful retention under Hague Convention | Salazar: Retention violated his custody rights and was wrongful | Galvan: Her retention was not wrongful because of claimed parental agreement/consent | Retention was wrongful: habitual residence Mexico, Salazar had custody rights, and he was exercising them when retention occurred |
| Hague defense of consent/acquiescence | Salazar: No consent because condition (child decide at year-end) not met; he acted promptly to return child | Galvan: Argues Salazar consented or acquiesced to retention | Court: No consent—agreement allowed only a one-year stay and D.S. chose to return, Salazar did not consent to continued retention |
Key Cases Cited
- Redmond v. Redmond, 724 F.3d 729 (7th Cir. 2013) (central wrongful-removal inquiry under Hague Convention)
- Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001) (analysis of habitual residence and settled intent)
- Koch v. Koch, 450 F.3d 703 (7th Cir. 2006) (consideration of parental shared intent and acclimatization)
- Abbott v. Abbott, 560 U.S. 1 (2010) (definition of rights of custody under the Convention)
- Altamiranda Vale v. Avila, 538 F.3d 581 (7th Cir. 2008) (patria potestas as custody right under Hague Convention)
- Whallon v. Lynn, 230 F.3d 450 (1st Cir. 2000) (distinguishing physical custody and patria potestas)