RAUL SALAZAR GARCIA, Petitioner-Appellee, v. EMELY GALVAN PINELO, Respondent-Appellant.
No. 15-2983
United States Court of Appeals For the Seventh Circuit
ARGUED DECEMBER 3, 2015 — DECIDED DECEMBER 22, 2015
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 14 C 09644 — Edmond E. Chang, Judge.
WOOD, Chief Judge. Raul Salazar Garcia and Emely Galvan Pinelo, both Mexican citizens, dated only briefly in 2001 and early 2002. But their relationship had one lasting consequence: in October 2002, Galvan gave birth to a child, D.S., in Monterrey, Nuevo León, Mexico. Although Galvan at all times has had physical custody of D.S., Salazar played an active part in the child’s life. In 2013, Galvan and D.S. moved to
This case presents us with three questions. First, we must determine whether, for the purpose of determining “rights of custody” under the Convention, a petitioner’s proof of foreign law should be treated as a question of law or a question of fact. Second, we must decide whether Salazar has shown that he had sufficient rights over D.S. at the time of the retention to trigger the Convention’s protections. Finally, we must evaluate whether the district court went beyond the bounds of its discretion when it declined to allow D.S. to stay in the United States pursuant to the Convention’s mature-child exception.
We conclude that the Hague Convention is no exception to the general rule, reflected in
I
As we noted, Salazar and Galvan’s brief relationship left them with a son, D.S., who was born in October 2002. They never married, and they never lived together. In 2006, a Nuevo León court entered a custody order recognizing Galvan and Salazar as D.S.’s parents. The court awarded physical custody of D.S. to Galvan and gave Salazar weekly visitation rights. For the first ten years of his life, D.S. lived with his mother in Monterrey, and Salazar visited regularly in accordance with the custody agreement.
In late 2012, Galvan requested Salazar’s assistance in obtaining a passport and visa for D.S. to visit the United States. She intended to visit relatives in Texas and then to take D.S. to either Disney World or Disneyland. Before that trip took place, however, she became engaged to an American citizen named Rogelio Hernandez, whom she married in July 2013. Around this time, she decided that she wanted to move with D.S. to the United States. While Galvan had told Salazar about her initial plans to travel with D.S. to the United States as a tourist, she did not advise him of her change in plans. Salazar became suspicious, however, when he saw news of Galvan’s
As planned, Galvan and D.S. moved to Chicago on August 15, 2013, and D.S. enrolled in school. Throughout the year, D.S. and Salazar kept in touch through Skype and Facebook. D.S. visited his father in Mexico for the Christmas holiday in December 2013. In his conversations with Salazar, D.S. said that he wanted to return to Mexico at the end of the school year; at the same time, he was telling his mother that he wanted to stay in Chicago.
Believing that the parties had agreed that D.S.’s wishes would govern his placement after the 2013-14 school year, and further believing that D.S. wanted to return to Mexico, Salazar showed up in Chicago in July 2014 with two return tickets to Mexico, one for him and one for D.S. This time it was Galvan who was taken by surprise: she believed that Salazar was in Chicago only to visit. Salazar and D.S. spent several days as tourists in Chicago. On July 21, 2014, in another Starbucks, D.S. and Salazar announced to Galvan that D.S. was moving back to Mexico with Salazar. Galvan did not believe that he wanted to return, nor did she think that she had an obligation to defer to his wishes. Salazar left the Starbucks with D.S., but the Chicago Police later contacted Salazar and instructed him to return D.S. to Galvan. Salazar complied. He returned alone to Monterrey, where he filed the petition that
The district court appointed a guardian ad litem for D.S. At first, D.S. did not indicate a preference for either Mexico or Chicago. Over time, however, his views evolved. In late April 2015, D.S. told his guardian that he wanted to stay in Chicago. The district court conducted an in-camera hearing with D.S.—by then 13 years old—to ascertain his views. D.S. told the judge that he preferred to stay in Chicago because it had better schools and opportunities, was safer, and he did not want his mother to be forced to pay Salazar’s costs and fees. He indicated that he wanted to finish eighth grade in Chicago, but that if he were not admitted to a good high school after eighth grade, he might return to Mexico. While he stated a preference for remaining in Chicago, he did not object to returning to Mexico.
At some point while all this was happening, Galvan’s immigration status took a turn for the worse. We go into more detail below, but for present purposes it is enough to say that both she and D.S. had overstayed their tourist visas and had no other basis for staying in the United States. This meant, her immigration lawyer told her, that she probably could not travel outside the United States, even to visit D.S. This news prompted Galvan to request a second in-camera hearing between the judge and D.S. She believed her immigration difficulties would change D.S.’s mind: since she would be unable to visit him in Mexico, it would be very difficult for D.S. to see his mother, possibly for a very long time. The district court obliged. During the second hearing, D.S. more clearly objected to returning to Mexico. While he gave several reasons
On August 21, 2015, the district court held an evidentiary hearing at which it received testimony from Salazar, Galvan, and Hernandez on the issues of the scope of Salazar and Galvan’s July 2013 agreement and whether the United States or Mexico was D.S.’s country of habitual residence. In orders entered on August 16 and August 28, 2015, the court granted summary judgment for Salazar. It found as a matter of fact that when Salazar and Galvan met in the Monterrey Starbucks in July 2013, they agreed that it would be D.S.’s decision whether to remain in Chicago after one school year had passed. It also found that Mexico was D.S.’s country of habitual residence. Applying the law of the Mexican state of Nuevo León, the court found that Salazar had the right of patria potestas over D.S., and that this qualifies as a “right of custody” for purposes of the Convention. (We refer occasionally to “Mexican law” in this opinion; we intend that phrase to encompass both Mexican federal law, such as the Convention, and the state law of Nuevo León.) This meant, the court held, that as of the summer of 2014 D.S. was wrongfully retained. That meant that he had to be returned to Mexico, unless the mature-child exception recognized by the Convention was met (i.e. D.S. was mature enough to make his own decision, and his decision was to stay in the United States). The court found that D.S. had eventually objected to returning to Mexico, and that he was sufficiently mature. It nonetheless declined to give effect to D.S.’s wishes, because it determined that doing so would not serve the purposes of the Convention. It thus ordered D.S. to be returned to Mexico.
II
We review the district court’s findings of fact for clear error, and its conclusions of law—whether American, foreign, or international—de novo. See Koch v. Koch, 450 F.3d 703, 710 (7th Cir. 2006) (collecting cases); Friedrich v. Friedrich, 78 F.3d 1060, 1064 (6th Cir. 1996) (citing
At bottom, the Hague Convention “is an anti-abduction treaty.” Redmond v. Redmond, 724 F.3d 729, 739 (7th Cir. 2013). It has two purposes: “to secure the prompt return of children wrongfully removed to or retained in any Contracting State,” and “to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” Hague Convention art. 1, T.I.A.S. No. 11670. It is meant “to deter parents from absconding with their children and crossing international borders in the hopes of obtaining a favorable custody determination in a friendlier jurisdiction.” Walker v. Walker, 701 F.3d 1110, 1116 (7th Cir. 2012).
Several principles of the Convention have a bearing on this case. First, it is not our prerogative “to settle a custody dispute.” Ortiz, 789 F.3d at 728; Hague Convention art. 19, T.I.A.S. No. 11670 (“A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.“);
A
We turn first to the question whether Salazar must “prove” the content of the relevant Mexican law by a preponderance of the evidence, as if it were a question of fact, or if this is a straightforward question of law for the court. Galvan takes the former position and asserts that Salazar failed to prove that the rights he possesses under Mexican law qualify for protection under the Convention. Thus, she concludes, the district court should have dismissed his petition.
Whatever one might think of Galvan’s position in the abstract, it does not stand up to scrutiny under the governing rules of procedure.
A central issue in the present case is whether Salazar had sufficient custody rights over D.S. to be entitled to relief under the Convention and ICARA. The answer depends on Mexican law, and thus the inquiry lies comfortably within Rule 44.1’s ambit. In this respect, the U.S. federal rules of procedure are entirely consistent with the Convention, which is based on respect for the law of the country of the child’s habitual residence. Whallon, 230 F.3d at 456, which in turn refers to Explanatory Report ¶ 34, at 434–35 (also noting at ¶ 67 that “the law of the child‘s habitual residence is invoked in the widest possible sense.“).
Galvan attempts to avoid this logic by arguing that the bundle of fact and law on which the district court made its decision had to be treated as a question of fact. But she has no quarrel with the facts that Salazar presented; instead, she says that Salazar did not produce enough evidence of the law of Nuevo León to permit the district court to resolve the issue. The district court was not, however, limited to the evidence Salazar presented (and for what it is worth, he did present some). The district court was required to find that it was more
B
A removal or retention is wrongful if (1) “in breach of rights of custody … under the law of the state in which the child was habitually resident immediately before the removal or retention“; and (2) “at the time of removal or retention those rights were exercised … or would have been so exercised but for the removal or retention.” Hague Convention art. 3, T.I.A.S. No. 11670. Because D.S.’s habitual residence at the time of the retention was the Mexican state of Nuevo León, the governing law is that state’s Civil Code.
Salazar relies on a doctrine known as patria potestas to support his claim. Patria potestas is a concept derived from the Roman civil law tradition; literally, the Latin words mean “the power of the father.” Historically, the power of the father over his children was absolute, both in scope and to the exclusion of others. Patricia Begné, Parental Authority and Child Custody in Mexico, 39 Fam. L.Q. 527, 529 (2005). Under Roman and German law, patria potestas permitted a father to discipline his children in any way, up to and including by death; that power endured throughout the father’s life. Id. Mexico’s codes of 1870 and 1884 conveyed patria potestas first to the father of a child and only secondarily to the mother. Id. It was only in 1928 that the Civil Code began the process of eliminating its gender bias. Id.
Galvan does not dispute that patria potestas constitutes a “right of custody” under the Convention. Cf. Abbott v. Abbott, 560 U.S. 1 (2010) (noncustodial parent’s ne exeat right is a “right of custody” for purposes of the Convention). Rather, she denies that Salazar has such a right. She does so on two bases: primarily, she asserts that he never possessed the patria potestas right over D.S.; her back-up position is that any patria potestas right he may have held was extinguished by the 2006 custody agreement.
1
Galvan’s more ambitious argument—that Salazar never possessed patria potestas over D.S.—was never squarely presented to the district court. In her reply brief, Galvan argues that she nevertheless did not waive it because it was an essential part of her argument that “the parties’ rights were limited to what was specified in the [2006] court order.” This assertion
Galvan relies on article 416 of the Civil Code for Nuevo León, because it is the only provision that expressly applies to parents who never lived together. Article 416 states:
When both parents have recognized a child born out of wedlock and they live together, they will jointly exert parental authority/responsibility (patria potestas). If they do not live together, what is established by articles 380 and 381 will apply to grant custody of the child.
Articles 380 and 381 describe the procedures for establishing custody depending on the timing of the parents’ recognition of the child. Neither mentions patria potestas.
Galvan argues that article 416’s mention of the patria potestas right with regard to parents who live together—and especially the article’s silence on this point with regard to parents who do not—indicates that patria potestas does not attach automatically when the parents never cohabitated. She finds support for this position in article 417, which provides that “[w]hen the parents of a child born out of wedlock that were living together[] separate, both retain parental authority/responsibility (patria potestas).” This article, too, has nothing to say about unmarried parents who never lived together.
Salazar counters that patria potestas is a default doctrine that attaches automatically to both birth parents upon their acknowledgment of parentage. He provided the district court with a certificate from the Mexican Central Authority stating
Galvan’s textual argument depends entirely on the maxim expressio unius est exclusio alterius (to include one thing is to exclude another). But even assuming that this notion exists in Mexican law and operates there just as it does in the United
Galvan’s interpretation of article 416 has the further disadvantage of creating a gap in the law: no one would have patria potestas over a child born to unmarried noncohabiting parents. Even Galvan accepts that article 416 does not award patria potestas to unmarried, noncohabiting parents; nor do articles 380 and 381. The latter articles describe only how to award physical custody, not patria potestas, for unmarried, noncohabiting parents. Here and elsewhere the Code carefully distinguishes between patria potestas and custody. See CCNL art. 415 bis (“Even if they do not have custody of the minors, those exerting parental responsibility (patria potestas), have a right to coexist (spend time) with their descendants … .“). Galvan’s view, taken to its logical extreme, would produce the odd result that even she would not possess patria potestas over D.S. today—indeed, no one would. This would be inconsistent with article 412, which dictates that “nonemancipated minors are under parental authority/responsibility (patria potestas) as long as the ancestors that must exert it according to the Law subsist.” Galvan’s response is to shift her attention to the 2006 custody agreement as the source of
2
Putting original rights to one side, Galvan urges that the 2006 agreement not only clarified (or conferred) her sole physical custody rights, but also granted patria potestas to her exclusively. In doing so, she says, it necessarily terminated any original patria potestas right Salazar had; it did so by failing to mention them.
Some courts have held that patria potestas may be extinguished by a custody agreement. See, e.g., Gonzalez v. Gutierrez, 311 F.3d 942, 954 (9th Cir. 2002) (“Here, unlike the situation in Whallon, the parties have executed a formal, legal custody agreement, thus eliminating any basis for relying on patria potestas.“), abrogated by Abbott, 560 U.S. at 10, 22; see also Avila, 538 F.3d at 587. None of these decisions, however, cites any Mexican law for this proposition, nor do we find any basis for it in the Civil Code for Nuevo León. Even if they are correct, however, the question would remain whether the 2006 agreement before us had that effect.
Chapter III of the CCNL spells out the conditions under which patria potestas may be suspended or terminated. The list is extensive, detailed, and specific. The conditions all relate to the parent’s ability or willingness to care for the child. See CCNL arts. 443–448. Patria potestas terminates automatically
Neither a custody agreement nor anything akin to one is listed as a condition that may terminate, suspend, or even limit patria potestas. Nor is there a general provision for the judicial surrender of parental authority and responsibility. To the contrary, article 448 states expressly that “[p]arental authority/responsibility [patria potestas] is not waivable.” Article 448 enumerates only two circumstances under which a person with patria potestas may be excused of his or her duties: (1) if the person is “sixty years or older” or (2) if he or she is “unable to properly carry out [his or her] duties” because of “a state of regular poor health.” Id. The fact that article 415 distinguishes between custody and parental authority rights further buttresses the idea that patria potestas cannot be lost through a custody agreement. Even if it were theoretically possible for a
C
As we noted earlier, patria potestas is considered a custodial right for purposes of the Convention. Since Salazar has that right, and Galvan arranged to have D.S. kept in the United States against Salazar’s will, it follows that for Convention purposes D.S. was wrongfully retained. This conclusion, however, does not end our inquiry. Under the Convention, the district court had the discretion to refuse to return D.S. to Mexico if Galvan proved by a preponderance of the evidence that D.S. “object[ed] to being returned and ha[d] attained an age and degree of maturity at which it is appropriate to take account of [his] views.” Hague Convention art. 13, T.I.A.S. No. 11670 (mature-child exception);
Here, the district court decided that it would be inconsistent with the aims of the Convention to refuse to repatriate D.S. First, it noted D.S.’s ambivalence before he finally objected to returning to Mexico, and the fact that D.S.’s objection was founded “almost entirely” on his belief that his mother would not be able to travel to and from Mexico because of her immigration status. Galvan observes, correctly, that D.S. gave other reasons, too, but the district court’s sense of which rea-
While this omission troubles us, in the end it does not compel a finding that the district court abused its discretion. The court’s greatest concern was independent of the amount of time D.S. might go without seeing his mother. It believed that the application of the mature-child exception in this case would reward Galvan for problems of her own making. Her immigration status was unstable because she (and D.S.) overstayed their tourist visas. It reasoned that allowing D.S. to stay in the United States would allow Galvan to benefit from her own violations of the Convention and U.S. immigration laws.
Article 13 is meant to address both systemic concerns—in particular, deterrence—and individual cases. See England, 234 F.3d at 271 (“The Convention‘s primary aims are to ‘restore the pre-abduction status quo and to deter parents from crossing borders in search of a more sympathetic court.‘“) (quoting Friedrich, 78 F.3d at 1063); Explanatory Report ¶¶ 16 (noting that one of the Convention’s two central objectives is “deterring” the abductor by “depriv[ing] his actions of any practical or juridical consequences“), 17 (noting the enforcement of the objective of “effective respect for rights of custody and of access ... belongs on the preventive level“), at 429–30. The district court was concerned that exercising the exception in this case would set a precedent that allows a parent to prevent the return of a child by problems of his or her own making. It reasoned that an inquiry into a litigant’s subjective intentions is a difficult endeavor, and one potentially subject to abuse by savvy litigants. It would be difficult for a court to smoke out bad faith in these situations. Neither the Convention nor ICARA forbids the district court to take these concerns into account when it makes its ultimate decision. The Convention’s “defenses … are narrowly construed” at least in part to preserve that deterrence. De Silva, 481 F.3d at 1285.
The district court also reasoned that this was a weak case for the mature-child exception because D.S.’s objection was
III
There is no doubt that this is a close case. Two points, however, are clear: Salazar had patria potestas over D.S. at the time of the retention; and he had “rights of custody” recognized by