Soto Pena v. Serrano, 1:17-cv-00903

Background

Petitioner Edgar Andres Soto Pena and Respondent Alejandra Eggleton Serrano are Mexican nationals who divorced in Monterrey, Mexico; the divorce decree (Dec. 2015) awarded Respondent care and custody, granted both parents patria potestad (parental rights), and granted Petitioner "coexistence" (visitation) rights; the decree required notice for changes of domicile.
The family lived intermittently in Texas and Monterrey; in June 2017 Respondent moved the children from Monterrey to Austin, Texas without Petitioner’s consent; Petitioner filed a Hague/ICARA petition seeking return on Sept. 16, 2017 and a TRO was entered.
The Court held an evidentiary hearing (Nov. 3, 2017); testimony included Petitioner and a Mexican family-law attorney called by Respondent; the Court accepted the attorney’s testimony under Fed. R. Civ. P. 44.1 as evidence of Mexican law.
Mexican law (Nuevo León Civil Code) recognizes patria potestad as joint parental authority; Mexican court documents and the Mexican Central Authority concluded the unilateral move was wrongful and implicated Petitioner’s custody rights.
The district court found (1) the children’s habitual residence at time of removal was Monterrey, Mexico; (2) Petitioner held rights of custody under Mexican law (patria potestad) that include the right to determine the children’s residence; and (3) Petitioner was exercising those rights at the time of removal.
The Court granted the petition: ordered prompt return of the children to Mexico, released the children’s passports to Petitioner for return, preserved temporary visitation rights pending return, and ordered Respondent to pay necessary expenses and attorney fees (upon Petitioner’s itemization).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Habitual residence of the children when removed	Monterrey, Mexico was the habitual residence in June 2017	Children had substantial ties to Texas but no shared parental intent to relocate from Monterrey	Held: Habitual residence = Monterrey, Mexico
Whether Petitioner had "rights of custody" under Mexican law	Patria potestad (expressly in decree and statute) confers rights of custody including place of residence	Divorce decree language permitting mother to change domicile (with notice) eliminated petitioner's custody rights as to relocation	Held: Patria potestad conferred rights of custody; decree did not terminate those rights; removal breached Petitioner’s custody rights
Whether Petitioner was exercising custody rights at time of removal	Petitioner was exercising coexistence/visitations (photographs, decree modification addressing visits)	(Implicit) limited visitation did not show exercise of custody rights	Held: Petitioner was exercising his custody rights at time of removal
Applicability of Hague defenses / ne exeat question	Petitioner argued patria potestad implies ne exeat-type right preventing unilateral removal abroad	Respondent argued decree’s relocation clause and lack of explicit ne exeat clause foreclosed a return remedy	Held: Court did not need to resolve ne exeat in depth because patria potestad sufficed; no Hague defenses asserted by Respondent, so return ordered

Key Cases Cited

Abbott v. Abbott, 560 U.S. 1 (2010) (ne exeat/right to determine child's country of residence is a custody right under the Convention)
England v. England, 234 F.3d 268 (5th Cir. 2000) (Convention/ICARA govern return proceedings, not merits of custody)
Berezowsky v. Ojeda, 765 F.3d 456 (5th Cir. 2014) (habitual residence inquiry and wrongful removal elements)
Larbie v. Larbie, 690 F.3d 295 (5th Cir. 2012) (parents' shared intent is central to habitual-residence inquiry for young children)
Garcia v. Pinelo, 808 F.3d 1158 (7th Cir. 2015) (patria potestad is central to Mexican family law; custody agreements do not easily extinguish patria potestad)
Ibarra v. Quintanilla Garcia, 476 F. Supp. 2d 630 (S.D. Tex. 2007) (contrasting view that agreed divorce terms can limit patria potestad rights)