Luis Ischiu v. Gomez Garcia, 274 F. Supp. 3d 339

Background

Mother (Gomez Garcia) fled Guatemala with son W.M.L.G. (age 6½) to the U.S. after alleging repeated physical and sexual abuse by husband (Luis Ischiu) and husband’s relatives, threats to kill her, and failed protections in Guatemala. She obtained asylum parole in the U.S. and has pending asylum proceedings.
A Guatemalan magistrate issued a six‑month Security Measures Order (Nov. 23, 2016) that provisionally suspended "guarda y custodia" and prohibited contact; the order was later extended and then clarified/modified by the issuing judge, who stated it did not judicially rescind patria potestas (parental authority).
Petitioner Luis Ischiu filed an ICARA petition under the Hague Convention seeking return of the child as a wrongful removal from Guatemala; respondent Gomez Garcia defended under Article 13 (child’s objections/maturity) and Article 13(b) (grave risk of harm).
Trial included testimony from Guatemalan law experts, psychologist Dr. Sanchez (diagnosed Gomez Garcia with PTSD and depression), family witnesses (many by videoconference), and an in‑camera interview of the child; the court found Gomez Garcia and Dr. Sanchez credible and many of the petitioner’s witnesses not credible or coached.
The court credited expert testimony and the Guatemalan judge’s clarifying orders in concluding Luis retained custody rights under Guatemalan law (patria potestas) at time of removal, but found clear and convincing evidence of grave risk to the child if returned.

Issues

Issue	Plaintiff's Argument (Ischiu)	Defendant's Argument (Gomez Garcia)	Held
Whether removal was wrongful (custody at time of removal)	Ischiu: retained parental custody (patria potestas); Security Measures Order only limited access, not custody	Gomez: Security Measures Order suspended his custody/guardianship rights, so no wrongful removal	Held: Ischiu had custody rights under Guatemalan law; removal was wrongful
Whether child’s views (age/maturity) bar return under Article 13	Ischiu: child’s preference not sufficient; procedural return should be ordered	Gomez: child objects and is mature enough to express views against return	Held: Court considered child’s statements but found him not sufficiently mature to invoke Article 13 exception
Whether Article 13(b) grave‑risk exception applies	Ischiu: disputed severity/credibility of abuse allegations; safety measures in Guatemala could protect child	Gomez: returning child poses grave risk of psychological/physical harm due to sexual abuse by relatives, physical abuse by father, threats, and ineffective protection	Held: Court found clear and convincing evidence of grave risk and intolerable situation if returned; Article 13(b) applies
Whether undertakings could mitigate risk	Ischiu: could have sought undertakings to secure child’s safety upon return	Gomez: undertakings insufficient because (1) Jul. 7 order removed temporary custody/protections; (2) family likely to violate orders; (3) mother lacks safe alternative housing/resources	Held: Undertakings would not adequately protect mother/child; return denied

Key Cases Cited

Miller v. Miller, 240 F.3d 392 (4th Cir. 2001) (purpose of Hague Convention and preserving status quo)
Bader v. Kramer (Bader I), 445 F.3d 346 (4th Cir. 2006) (distinguishing access orders from custody rights under foreign law)
Bader v. Kramer (Bader II), 484 F.3d 666 (4th Cir. 2007) (elements of wrongful removal)
White v. White, 718 F.3d 300 (4th Cir. 2013) (custody determination under foreign order may defeat Hague claim)
Abbott v. Abbott, 560 U.S. 1 (2010) (ne exeat rights and custody context under Hague Convention)
Simcox v. Simcox, 511 F.3d 694 (6th Cir. 2007) (narrow construction of Article 13(b) but recognition of serious domestic‑abuse risk)
Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996) (grave risk must be more than serious; clear standard)
Walsh v. Walsh, 221 F.3d 204 (1st Cir. 2000) (spouse abuse in child’s presence can establish grave risk)
Van De Sande v. Van De Sande, 431 F.3d 567 (7th Cir. 2005) (use of undertakings and balancing interests)
Baran v. Beaty, 526 F.3d 1340 (11th Cir. 2008) (grave risk where father abused mother and threatened child)
Blondin v. Dubois, 238 F.3d 153 (2d Cir. 2001) (consideration of young child’s testimony in grave‑risk analysis)
Whallon v. Lynn, 230 F.3d 450 (1st Cir. 2000) (limits to grave‑risk finding where child not directly abused)
Nicolson v. Pappalardo, 605 F.3d 100 (1st Cir. 2010) (distinguishing temporary protection orders from permanent custody determinations)
Hernandez v. Cardoso, 844 F.3d 692 (7th Cir. 2016) (repeated abuse of mother in child’s presence likely to create grave risk)
Gomez v. Fuenmayor, 812 F.3d 1005 (11th Cir. 2016) (death threats and violence can establish grave risk)