Raul Salazar-Garcia v. Emely Galvan-Pinelo
2015 U.S. App. LEXIS 22324
7th Cir.2015Background
- Child D.S. born in Monterrey, Mexico in Oct. 2002; mother Emely Galvan had physical custody; father Raul Salazar Garcia had visitation per a 2006 Nuevo León custody order.
- Galvan and D.S. moved to Chicago in Aug. 2013; Salazar visited and in July 2014 attempted to take D.S. back to Mexico based on an earlier agreement that D.S. would decide after one school year.
- Chicago police ordered D.S. returned to Galvan; Salazar filed a Hague Convention/ICARA petition in U.S. district court seeking D.S.’s return to Mexico as a wrongful retention.
- District court found: Mexico (Nuevo León) was D.S.’s habitual residence; Salazar held patria potestas (parental authority) under Nuevo León law constituting a "right of custody"; retention was wrongful; D.S. was mature and objected, but the court declined to apply the mature-child exception and ordered return.
- Galvan appealed, arguing (1) foreign law should be treated as a fact issue/burden not met, (2) Salazar lacked patria potestas under Mexican law or lost it by the 2006 agreement, and (3) district court abused discretion in declining the mature-child exception.
Issues
| Issue | Plaintiff's Argument (Salazar) | Defendant's Argument (Galvan) | Held |
|---|---|---|---|
| Whether the content of foreign law is a question of law or fact | Foreign-law content is for the court to decide as a question of law under Fed. R. Civ. P. 44.1; court may research independently | Should be treated as factual (Galvan claimed burden not met) | Court: foreign law is a question of law; Rule 44.1 applies (de novo review of legal conclusions) |
| Whether Salazar possessed custodial rights (patria potestas) under Nuevo León law at time of retention | Patria potestas attaches at birth/acknowledgment and Salazar retained it; 2006 custody agreement did not terminate it | Article 416/other Code provisions show patria potestas does not attach for noncohabiting parents or was extinguished by the 2006 custody order | Court: patria potestas exists upon acknowledgment/birth; 2006 agreement did not expressly terminate it; Salazar had rights of custody => retention wrongful |
| Whether the mature-child exception bars return (discretion to apply) | Even if D.S. objected and was mature, court should exercise discretion to return child to further Convention goals | D.S. matured and objected; his preference should prevent return; Galvan’s immigration overstay was not bad faith | Court: prerequisites for article 13 met but court retains discretion; declining exception was not abuse of discretion—applying it would undermine deterrence and reward retention/visa overstay |
Key Cases Cited
- Norinder v. Fuentes, 657 F.3d 526 (7th Cir.) (describing Convention remedy of return)
- Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir.) (foreign-law questions treated under Rule 44.1)
- Altamiranda Vale v. Avila, 538 F.3d 581 (7th Cir.) (patria potestas as custody right under the Convention)
- de Silva v. Pitts, 481 F.3d 1279 (10th Cir.) (district court discretion to order return even if an exception applies)
- Whallon v. Lynn, 230 F.3d 450 (1st Cir.) (child’s habitual residence best placed to decide custody)
- Abbott v. Abbott, 560 U.S. 1 (2010) (recognition that certain noncustodial rights are "rights of custody" under the Convention)