180 F. Supp. 3d 517
E.D. Tenn.2016Background
- Child born in Querétaro, Mexico (Oct. 24, 2010); parents (Garduño and Soto) are Mexican citizens who lived together in Mexico until separating in March 2013.
- In April 2013 Soto left Mexico with the child and moved to the United States without Garduño’s consent; Garduño searched in Mexico, filed reports, and later located them in Texas.
- Garduño filed a Hague/ICARA petition in U.S. district court (Dec. 11, 2015) seeking the child’s prompt return to Mexico; temporary restraining order preserved the status quo pending trial.
- At the March 7, 2016 evidentiary hearing, parties disputed prior parenting, visits, support, and risks if returned to Mexico; defendant argued defenses under Articles 12, 13(b), and 18 (settledness, grave risk, acquiescence).
- The court found Mexico was the child’s habitual residence, Garduño had custody rights under Mexican patria potestad and was exercising them, and none of the Hague/ICARA exceptions applied; it ordered return and dismissed the case.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the child wrongfully removed from his country of habitual residence? | Garduño: child habitually resided in Mexico and was wrongfully removed to U.S. | Soto: disputed visitation/custody facts but did not rebut habitual residence. | Held: Yes—Mexico was habitual residence and removal was wrongful. |
| Did Garduño have custody rights and was he actually exercising them pre-removal? | Garduño: under Mexican patria potestas both parents had custody and he maintained regular contact/support. | Soto: father rarely visited and provided little support after separation. | Held: Yes—Mexican law grants joint custody and Garduño was exercising custody. |
| Did Garduño consent or subsequently acquiesce to removal? (Art. 18/13(a)) | Garduño: actively searched, filed reports, pursued Mexican and U.S. channels; delay does not equal acquiescence. | Soto: long delay (≈19 months) before U.S. filing shows acquiescence. | Held: No acquiescence—plaintiff’s actions showed ongoing efforts to recover the child. |
| Is return barred because the child is "now settled" or at "grave risk"? (Arts. 12, 13(b)) | Garduño: child not so settled; return appropriate to vindicate custody rights and deter abduction. | Soto: child lived in U.S. ~3 years, has family, activities, school/church; fears re: father’s alcohol/abuse and family power create grave risk. | Held: Not settled by preponderance; no grave risk by clear-and-convincing evidence. Return ordered. |
Key Cases Cited
- March v. Levine, 249 F.3d 462 (6th Cir.) (ICARA implements Hague Convention and governs burdens/procedures)
- Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir.) (defines wrongful removal/exercise of custody and narrowly construes grave-risk/acquiescence defenses)
- Lozano v. Montoya Alvarez, 134 S. Ct. 1224 (2014) (Article 12 "now settled" exception permissive; courts retain discretion after one year)
- Jenkins v. Jenkins, 569 F.3d 549 (6th Cir.) (framework for habitual-residence inquiry)
- Robert v. Tesson, 507 F.3d 981 (6th Cir.) (factors for habitual residence and change of habitual residence)