Xochitl Velasco Padilla v. Joe Troxell
2017 U.S. App. LEXIS 4083
4th Cir.2017Background
- Child born in Oaxaca, Mexico (May 2011). Respondent (Troxell) registered himself as Child’s legal father under Mexican law and provided financial support; parties agree Respondent had parental rights in Mexico.
- In December 2014 petitioner (Velasco) accompanied Respondent to obtain a Mexican passport for Child; shortly thereafter Respondent took Child to Acapulco and arranged for Child’s entry into the U.S.; Border Patrol found Child in Texas February 2015 and released him to Respondent.
- Petitioner filed a Hague/ICARA petition (May 2016) seeking the child’s return; bench trial held July 2016. District court found wrongful removal but credited Respondent’s version of events and denied return based on petitioner’s consent to removal.
- Key evidence: passport application signed by both parents, text-message exchanges after removal (some indicating petitioner said Child was better off with Respondent and repeatedly sought money), testimony from Respondent and his wife, and a notarized affidavit from petitioner’s half-sister supporting Respondent’s account.
- District court found petitioner’s testimony not credible (conflicting statements about number of children, separations, and prior requests for money) and admitted the half-sister’s affidavit under Fed. R. Evid. 902(8). Petitioner appealed.
Issues
| Issue | Plaintiff's Argument (Velasco) | Defendant's Argument (Troxell) | Held |
|---|---|---|---|
| Whether petitioner consented to or acquiesced in Child’s removal | Petitioner says she did not consent and Respondent took Child without her knowledge; she sought return | Respondent argues petitioner consented (signed for passport, said Child was better off in U.S.) and later accepted retention | Court affirmed: preponderance of evidence shows petitioner consented to removal; district court credibility finding entitled to deference |
| Admissibility of half-sister’s sworn affidavit | Affidavit was hearsay and improperly authenticated; its admission prejudiced petitioner | Affidavit was self-authenticating (notarized) and admissible under Fed. R. Evid. 902(8); petitioner failed to raise hearsay objection | Court held objection on hearsay was forfeited (not preserved); district court’s limited reliance on affidavit harmless in any event |
| Whether district court shifted burden improperly | Petitioner contends court shifted burden to her to disprove consent | Respondent notes ICARA places burden on respondent to prove affirmative defenses once wrongful removal shown | Court rejected petitioner’s burden-shifting claim; court properly placed initial burden on petitioner and then respondent to prove consent |
| Whether district court should have used Article 18 discretion to return Child despite defense | Petitioner argues court should have exercised discretion under Article 18 to order return | Respondent contends valid defense bars return and discretion not necessary | Court declined to address Article 18 because petitioner forfeited the argument by not raising it below; issue not reached on merits |
Key Cases Cited
- Alcala v. Hernandez, 826 F.3d 161 (4th Cir. 2016) (discussing ICARA/Hague Convention framework)
- Maxwell v. Maxwell, 588 F.3d 245 (4th Cir. 2009) (standard of review for Hague cases)
- Lozano v. Montoya Alvarez, 134 S. Ct. 1224 (2014) (burden-shifting and narrow exceptions under the Hague Convention)
- Baxter v. Baxter, 423 F.3d 363 (3d Cir. 2005) (distinguishing consent and acquiescence defenses)
- Darin v. Olivero-Huffman, 746 F.3d 1 (1st Cir. 2014) (analyzing consent vs. acquiescence; focus on subjective intent)
- Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996) (deference to credibility findings in Hague proceedings)