Michelle Berezowsky v. Pablo Ojeda
2014 U.S. App. LEXIS 16482
| 5th Cir. | 2014Background
- PARB, born in Texas (USA) to Mexican parents, was moved to Mexico with ongoing custody litigation across multiple countries.
- A Texas order designated PARB’s primary residence in Mexico and gave Rendon custody with rights to designate PARB’s residence; Berezowsky sought Hague relief in the Southern District of Texas.
- The district court held Mexico was PARB’s habitual residence and wrongly removed him, then prejudged the merits of the custody dispute.
- Rendon appealed, arguing the district court erred on habitual residence, wrongful removal, and consent defenses; the Fifth Circuit vacated and remanded with dismissal instructions.
- The opinion discusses extensive cross-border litigation involving Mexican courts, Texas courts, and the Hague Convention, focusing on shared parental intent and habitual residence, rather than merits of custody.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Mexico PARB’s habitual residence? | Berezowsky contends both parents intended Mexico. | Rendon contends shared intent to Mexico existed; district court found Mexico habitual residence. | No; Mexico not shown as shared habitual residence. |
| Was PARB’s removal wrongful under the Hague Convention? | Removal violated rights of custody under Mexican law. | Removal justified if habitual residence was Mexico and consent defense possible. | Answered only after habitual residence determination; court did not reach merits of wrongful removal. |
| Does Texas Order or consent defeat or support a defense to wrongful removal? | Consent to Texas custody proceedings could imply consent to removal. | Consent defense could apply if valid, continuing Texas jurisdiction; district court did not resolve on appeal. | Consent defense not resolved due to lack of habitual residence finding; jurisdictional issue not dispositive. |
Key Cases Cited
- Larbie v. Larbie, 690 F.3d 295 (5th Cir. 2012) (habitual residence inquiry is fact-intensive; shared intent central)
- Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001) (shared intent and settled purpose; accommodations for unilateral stays)
- Barzilay v. Barzilay, 600 F.3d 912 (8th Cir. 2010) (cannot determine habitual residence solely from repatriation agreements or orders)
- Gitter v. Gitter, 396 F.3d 124 (2d Cir. 2005) (avoid forum-shopping; child’s habitual residence tied to parental intent and actions)
- Ruiz v. Tenorio, 392 F.3d 1247 (11th Cir. 2004) (habits and intentions important in habitual-residence determination)