Julio Ortiz v. Zulima Martinez
2015 U.S. App. LEXIS 10023
| 7th Cir. | 2015Background
- Ortiz seeks the return of two children, A.O. and L.O., under the Hague Convention after they were retained in the United States by Martinez.
- Martinez remained in the U.S. with the children after a trip to Chicago and refused to return to Mexico.
- The district court found wrongful removal but upheld an exception to mandatory return under Article 13(b) for both children.
- A.O. was found to face a grave risk of physical/psychological harm from Ortiz’s alleged sexual abuse, supported by Martinez’s testimony and Dr. Machabanski’s findings.
- L.O.’s “wishes of the child” determination was made independently by the district court, crediting his desire to remain in the U.S.; Ortiz challenged the credibility of the abuse evidence and the weight given to the child’s wishes.
- Ortiz appeals challenging only the A.O. grave-risk determination, arguing insufficient credibility of Martinez’s evidence and the expert.”
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether A.O. faced a grave risk under Article 13(b). | Ortiz argues evidence of abuse is uncredible. | Martinez asserts clear and convincing evidence of abuse. | grave risk established; return denied for A.O. |
| Whether the district court’s credibility determinations were clearly erroneous. | Ortiz claims witnesses were unreliable and manipulated. | Martinez contends credibility supported by multiple witnesses and expert. | No clear error; credibility findings upheld. |
| Whether the district court properly treated L.O.’s wishes as a non-affirmative defense/consideration. | Ortiz contends the court erred in considering L.O.’s wishes. | Martinez argues court properly considered wishes as a separate factor. | L.O.’s portion moot; not reviewed on appeal. |
Key Cases Cited
- Norinder v. Fuentes, 657 F.3d 526 (7th Cir. 2011) (standard of review for grave-risk determinations; de novo evaluation of legal conclusions)
- Redmond v. Redmond, 724 F.3d 729 (7th Cir. 2013) ( Hague return remedy and exceptions; grave risk analysis)
- Khan v. Fatima, 680 F.3d 781 (7th Cir. 2012) (protects against return where grave risk of harm exists)
- In re Application of Adan, 437 F.3d 381 (3d Cir. 2006) (grave risk/ intolerable situation examples; aiding framework)
- Danaipour v. McLarey, 286 F.3d 1 (1st Cir. 2002) (grave risk concept in Hague context)
- United States v. Warner, 498 F.3d 666 (7th Cir. 2007) (credibility determinations in trial court are highly respected on appeal)
- Anderson v. City of Bessemer City, 470 U.S. 564 (1985) (credibility-based findings receive deference)
- United States v. Taylor, 701 F.3d 1166 (7th Cir. 2012) (credibility review related to witness testimony)
- Whitehead v. Bond, 680 F.3d 919 (7th Cir. 2012) (minor discrepancies do not render testimony incredible)
- Jensen v. United States, 169 F.3d 1044 (7th Cir. 1999) (impeachment-related credibility limits)