Pedro Flores Rodriguez v. Yolanda Salgado Yanez, e
2016 U.S. App. LEXIS 5727
5th Cir.2016Background
- Parents: Pedro Antonio Flores Rodriguez (petitioner) and Yolanda Ivonne Salgado Yanez (respondent) are the parents of A.S.F.S., born in Mexico in 2005.
- In October 2013 Salgado took A.S.F.S. from Mexico to the United States without Flores’s permission; Flores filed a Hague Convention petition for return in July 2014.
- District court found A.S.F.S. was habitually resident in Mexico and removal breached Flores’s custody rights, but denied return on two alternative grounds: (1) Flores was not "exercising" custody rights at time of removal (Art. 13(a)); and (2) A.S.F.S., mature enough, objected to return (Art. 13(b)).
- Evidence: Flores visited Chihuahua roughly monthly or every six weeks and contributed financially to the child’s schooling; Salgado and the child testified Flores was abusive, drank, and that the child preferred living in Texas and feared Flores.
- Fifth Circuit review: factual findings for clear error; legal conclusions de novo. Court reversed the district court's Article 13(a) ruling, vacated the Article 13(b) determination, and remanded for further findings and a renewed in camera colloquy with the child.
Issues
| Issue | Plaintiff's Argument (Flores) | Defendant's Argument (Salgado) | Held |
|---|---|---|---|
| Whether Flores was "exercising" custody rights at time of removal (Art.13(a)) | Flores argues his visits and financial support show exercise of custody rights | Salgado contends visits were incidental to seeing her (the mother) and not exercise of custody rights | Court: Flores was exercising custody rights; monthly visits and financial support suffice; district court erred |
| Whether A.S.F.S. "objects" to being returned and is mature enough (Art.13(b)) | Flores argues the child only expressed a preference for the U.S., not an objection; preference is insufficient | Salgado contends child expressed fear of father and desire to remain with mother — amounting to an objection | Court: maturity finding not clearly erroneous, but the record does not clearly show an actionable "objection"; district court’s conclusion vacated and remanded for clearer findings and a new colloquy |
| Whether a child’s objection based on desire to stay with abducting parent can satisfy Art.13(b) | Flores warns allowing such objections would decide custody merits and reward abduction; urges exclusion of objections rooted solely in wish to live with abducting parent | Salgado argues child’s autonomy and Perez‑Vera commentary allow a mature child’s considered objection even if linked to staying with the abducting parent | Court: A mature child’s considered objection may suffice even if partly based on wanting to remain with the abducting parent, unless the preference is the product of undue influence; courts must guard against undue influence |
Key Cases Cited
- Abbott v. Abbott, 560 U.S. 1 (U.S. 2010) (explains Convention purpose: custody merits belong to habitual‑residence courts)
- Sealed Appellant v. Sealed Appellee, 394 F.3d 338 (5th Cir. 2004) (occasional contact and support constitute "exercise" of custody rights)
- Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996) (broad formulation of "exercise": even occasional contact suffices; abandonment required to defeat exercise)
- England v. England, 234 F.3d 268 (5th Cir. 2000) (age-and‑maturity exception to be applied narrowly)
- Bader v. Kramer, 484 F.3d 666 (4th Cir. 2007) (courts should liberally find "exercise" where a parent keeps regular contact)