Martinez Gonzalez v. Preston

Filing 22

OPINION. An appropriate judgment will be entered. Signed by Honorable Judge Myron H. Thompson on 5/20/2015. (dmn, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION
MARÍA MAGDALENA MARTINEZ
GONZÁLEZ,

)
)
)
)
)
)
)
)
)
)

Petitioner,
v.
THOMAS DAVID PRESTON,
Respondent.

CIVIL ACTION NO.
3:15cv282-MHT
(WO)

OPINION
This is a case about a father’s alleged abduction
of his children from their mother and home in Mexico to
his

home

in

Alabama.

Petitioner

María

Magdalena

Martinez González asserts in a petition to this court
that

her

estranged

husband,

respondent

Thomas

David

Preston, wrongfully removed their children from Mexico
to

the

United

States

in

violation

of

the

Hague

Convention on the Civil Aspects of International Child
Abduction

as

implementing
Abduction

the

well

as

the

Convention,

Remedies

Act,

22

federal

the

legislation

International

U.S.C.

§§

Child

9001-9011

(formerly 42 U.S.C. §§ 11601-11610).

This court has

original jurisdiction over her petition pursuant to 22
U.S.C. § 9003(a) and 28 U.S.C. § 1331.
The court previously issued a temporary restraining
order
and

and

preliminary

anyone

injunction

cooperating

with

prohibiting

him

from

Preston

removing

the

children from Alabama while the court decides the case.
Martinez’s petition is now before the court for a
final decision on the merits.

She seeks the return of

her children to her home in Ciudad Juárez so that a
Mexican court can determine custody under Mexican law.
Based on the evidence presented at a hearing, in which
Martinez

(by

live

video),

Preston,

and

others

testified, the court finds in favor of Martinez.

I.
Petitioner
Preston.

Martinez

They

have

BACKGROUND
is
two

married
children

to

respondent

together,

four-year-old son and a two-year-old daughter.
2

a

Both

children were born in Ciudad Juárez, in the state of
Chihuahua, Mexico.

Martinez is a Mexican citizen, and

Preston is an American citizen.
Preston

and

Martinez

were

married

in

2010,

and

their first child together, a son, was born in early
2011.

They separated a few months later, and Preston

took their son with him to Alabama.

Preston contends

that he left with Martinez’s goodwill, but

Martinez

maintains that she never gave him permission to take
away

their

filed

a

son.
criminal

Shortly

after

complaint

they

against

left,

Martinez

Preston

for

abducting their son, but Preston refused to return to
Mexico or to allow Martinez to see their son for six
months.

He finally returned to Juárez with their son

when he learned that Martinez was pregnant with their
daughter.

After their daughter was born in 2012, the

family lived together in Juárez again, though Preston
frequently traveled away from home for his job as a
truck driver.
3

When they lived together in Juárez, they shared
custody of the children.

Martinez sometimes worked at

restaurants, bars, and factories, though she was not
always employed outside the home; Preston worked for
several trucking companies.

As a result, the children

were sometimes in the care of a local daycare or were
at

home

under

the

supervision

of

one

of

Martinez’s

older children.
At the hearing, Preston testified that, while he
was

living

authorities
gain

sole

in

Mexico,

about
custody

he

initiating
of

the

inquired

with

local

judicial

proceedings

to

children.

However,

he

contends that he was told that, because he did not have
resident status in Mexico, he was not able to initiate
family-court
that

he

was

proceedings.
dissuaded

Additionally,

from

he

complaining

testified

to

Mexican

officials for fear of the children being taken into
Mexican

custody.

So,

Preston

matters into his own hands.
4

testified,

he

took

In mid-April 2014, Preston convinced Martinez to
sign two purported legal documents that he drafted on
his

home

parties

computer,

both

dispute

the

English-language

skills

written

in

extent
and

English.
of

whether

The

Martinez’s

she

understood

these documents.
The

two

documents

Preston

presented

to

Martinez

were titled “Termination of Parental Rights Form” and
“Travel Consent Form.”
told

her

that

the

Martinez testified that Preston

documents

were

necessary

family to immigrate to the United States.1
Preston,

the

purpose

of

the

for

the

According to

documents

was

to

memorialize Martinez’s consent--which he contends that
she had given him verbally--to her forfeiture of all

1. Both parties testified that on several occasions
the family had discussed moving to the United States,
and Preston testified that he initiated United States
visa applications for the non-citizen family members.
Preston explained that he applied for visas for both
Martinez and her other, older children; Martinez
testified that he applied for visas for only her other
children and not for herself.
5

her custody rights over the children and to his taking
the children to the United States.

Though he has a

firm grasp of the Spanish language, Preston testified
that he drafted the documents in English so that they
would

be

recognized

and

understood

in

the

United

States.
The

“Travel

Consent

Form”

stated

that

Martinez

allowed her two children “to travel and relocate with
their father” to the United States “for a indefinite
period of time.”
at 2.
that

Travel Consent Form (doc. no. 4-3),

The “Termination of Parental Rights Form” stated
Martinez

rights”

to

her

“wish[ed]
children

to

terminate

because

she

all

was

parental

“unfit

and

unable to care for them, due to [her] alcoholism and
continued drug use.”

Termination of Parental Rights

Form (doc. no. 4-2), at 2.
Martinez

agreed

not

to

The form also states that

have

any

contact

with

the

children until they turned 18 and that Preston would

6

have

sole

custody.

Id.

Each

forms

bears

both

Martinez’s and Preston’s signatures.
Martinez testified that she signed both of these
documents at their home in Juárez and that no notary
was present.
were

signed

Preston testified that these documents
in

the

presence

of

a

notary

on

an

‘international bridge’ dividing Ciudad Juárez, Mexico
and El Paso, Texas.
not

the

“Notice

of

The “Travel Consent Form,” though
Termination

of

Parental

Rights

Form,” bears the notary stamp of a Texas-based notary.
Preston contends

the notary refused to notarize

the

“Termination” form because it was a legal document that
needed to be authorized by a court.
On April 29, 2014, two weeks after signing these
documents, Martinez came home from work to discover
that Preston had left with the two children and their
belongings.
phone

to

continued

Martinez immediately called Preston’s cell

find
to

them,
call,

but
and

he
she
7

did
also

not

answer.

reached

out

She
to

Preston’s mother.

The next day, she learned by phone

that Preston had taken the children to his mother’s
home

in

Lanett,

Alabama.

Martinez

contends

that

Preston and his mother refused to allow Martinez to
speak with the children.
Three days later, Martinez filed a criminal charge
in

Mexico

children.
Mexican

against

Preston

for

abduction

of

the

Shortly thereafter, Martinez went to the

Ministry

abduction,

and

of
she

Convention petition.

Foreign

Affairs

began

to

to

report

assemble

her

the

Hague

She submitted her statement to

the Mexican Ministry on May 12, 2014; after its own
internal

investigation,

the

Mexican

government

forwarded her case to the United States Department of
State, which helped Martinez find local Alabama counsel
to initiate these proceedings.
A

few

Martinez

weeks

spotted

alerted police.

after
Preston

he

left

back

in

with

the

Ciudad

children,
Juárez

and

He was arrested, but he produced the
8

purported travel and parental-termination documents for
police, and he was released on bail.

The authorities

later showed Martinez the documents, which is when she
learned what they really meant.
Martinez

successfully

In early June 2014,

petitioned

for

provisional

custody of the children under Mexican law in the Bravos
District family

court of Chihuahua; Preston did not

respond to these proceedings.
When Preston and the children arrived in Alabama,
they moved in with Preston’s mother in Lanett.

After a

few months, Preston rented a separate home on the same
block

as

his

mother’s,

and

the

children

now

reside

there with Preston, unless he is traveling for work, in
which

case

they

stay

with

Preston’s

mother

or

a

babysitter.

II. DISCUSSION
The

Hague

International

Convention
Child

on

Abduction
9

the
is

Civil
an

Aspects

of

international

treaty

established

children

to

wrongfully

Contracting

removed

State”

child-custody

“secure

and

disputes

the

to

or

to
arise

prompt

return

retained

in

ensure

that,

between

parents

of
any

when
or

guardians across international borders, custody rights
are respected between signatory countries.

See Hague

Convention on the Civil Aspects of International Child
Abduction, arts. 1(a), 2, October 25, 1980, T.I.A.S.
No. 11670, 1343 U.N.T.S. 89.

Both the United States

and Mexico are “Contracting States” to the treaty.
By facilitating the child’s return to the parent
left behind, the Convention restores the factual status
quo before the child was wrongfully removed, so that
any

legal

custody

disputes

will

take

place

country of the child’s habitual residence.

in

the

See Baran

v. Beaty, 526 F.3d 1340, 1344 (11th Cir. 2008) (“When a
child has been wrongfully removed from his country of
habitual

residence,

the

Convention

provides

the

non-abducting parent with a remedy of return, intended
10

to restore the parties to the pre-abduction status quo
and deter parents from crossing borders in search of a
more

sympathetic

forum

for

child

custody

proceedings.”).
In
regulate

other
the

words,

Convention

substantive

parents or families.

legal

provisions

do

relationships

not

between

Nor does the treaty allow a court

to settle any custody dispute on the merits, unless it
is

determined

that

a

child

Hague Convention, art. 16.

is

not

to

be

returned.

Formal custody is to be

determined later, by a court in the child’s country of
habitual residence.

See Abbott v. Abbott, 560 U.S. 1,

20 (2010) (“The Convention is based on the principle
that the best interests of the child are well served
when decisions regarding custody rights are made in the
country of habitual residence.”).
The Convention also creates certain defenses that,
if established by the respondent, may justify denying
relief

to

the

petitioner.
11

For

example,

if

the

respondent proves that “there is a grave risk that [the
child’s] return would expose the child to physical or
psychological harm or otherwise place the child in an
intolerable situation,” the court may refuse to return
the child.

Hague Convention, art. 13(b); see also 22

U.S.C. § 9003(e)(2)(A).

The court also may refuse to

return the child if a year or more has passed since the
wrongful removal and the respondent proves that the
child “is now settled in its new environment.”
Hague

Convention,

art.

12;

see

also

22

See
U.S.C.

§ 9003(e)(2)(B).
The International Child Abduction Remedies Act, the
implementing

statute

for

the

Convention,

sets

forth

legal rights and procedures for aggrieved parents and
guardians seeking relief in United States courts.
U.S.C. § 9001 et seq.

22

Under the statute, a person may

petition a court authorized to exercise jurisdiction in
the place where a child is located for the return of
the child to his or her habitual residence in another
12

signatory

country.

22

U.S.C.

§ 9003(b);

Pesin

v.

Rodriguez, 244 F.3d 1250, 1251 n.2 (11th Cir. 2001).2
The removal or retention of a child is considered
“wrongful” under the Hague Convention where: “(a) it is
in breach of rights of custody attributed to a person
... either jointly or alone, under the law of the State
in which the child was habitually resident immediately
before the removal or retention; and (b) at the time of
the removal or retention those rights
exercised ....”
When

a

were actually

Hague Convention, art. 3.

child

is

wrongfully

removed,

and

if

a

petition is initiated less than one year after wrongful
removal,

the

court

must

order

the

child’s

unless an enumerated exception applies.

return,

See Abbott v.

2. United States federal courts must comply with
state law when ordering a child removed from the person
with physical control of the child.
22 U.S.C.
§ 9004(b).
Because 1975 Ala. Code §§ 30-3B-302 and
30-3B-308(c) provide authority for courts to order the
return of a child as outlined under the Hague
Convention, the court adheres to Alabama law by
complying with the Convention.
13

Abbott,

560

U.S.

at

9

(“The

Convention’s

operating feature is the return remedy.

central

When a child

under the age of 16 has been wrongfully removed or
retained,

the

country

to

which

the

child

has

been

brought must ‘order the return of the child forthwith,’
unless

certain

exceptions

apply.”)

(citing

Hague

Convention, art. 12).

A. Wrongful Removal
As the Convention language makes clear, courts must
make three determinations when deciding whether a child
has been wrongfully removed: first, where the child was
habitually

a

resident

purportedly

wrongful

immediately

removal;

before

second,

the

whether

the

petitioner had a right of custody under that country’s
law and the respondent violated that right of custody
by removal; and, third, whether the right was being
exercised at the time of the removal or would have been
exercised

but

for

the

removal.
14

See

Pastén

v.

Velásquez, 462 F. Supp. 2d 1206, 1209 (M.D. Ala. 2006)
(Thompson, J.).

A petitioner must establish that a

child has been wrongfully removed by a preponderance of
the evidence.

22 U.S.C. § 9003(e)(1)(A).

1. Habitual Residence
‘Custody

rights’

under

the

Convention

are

determined by the law of the country in which the child
was habitually resident at the time of removal.

Courts

in the United States and foreign jurisdictions have
defined
where

a

the

child’s
child

habitual

has

been

residence
physically

as

“the

present

place
for

an

amount of time sufficient for acclimatization and which
has

a

degree

perspective.”

of

settled

purpose

from

the

child’s

Pesin v. Osorio Rodriguez, 77 F. Supp.

2d 1277, 1284 (S.D. Fla. 1999) (Lenard, J.) (citing
Feder

v.

1995)).

Evans-Feder,

63

F.3d

217,

224

(3d.

Cir.

When a country has different territorial units

with different systems of law--for example, Mexico is
15

composed

of

Convention

31

states

provides

and

that

1

the

federal
law

of

district--the

the

country

of

habitual residence “shall be construed as” the law of
the territorial unit in the country where the child
habitually resides.

Hague Convention, art. 31.

Here, there is no question that the children were
habitual residents of the Mexican state of Chihuahua at
the time of their removal.
Chihuahua

and,

with

the

They were both born in

exception

of

the

six-month

period between 2011-2012 when Preston took the son to
Alabama, both children have lived their entire lives
there.

The court will therefore look to local Mexican

law

the

in

state

of

Chihuahua

to

determine

whether

Martinez’s custody rights were breached by the removal.
See

Whallon

v.

Lynn,

230

F.3d

450

(1st

Cir.

2000)

(applying local Mexican law of state where children
were habitually resident to the question of custody
rights,

pursuant

to

Mexican

choice-of-law

rules);

Saldivar v. Rodela, 879 F. Supp. 2d 610, 622 (W.D. Tex.
16

2012) (Guaderrama, J.) (interpreting Mexican federalism
and choice-of-law rules to apply the local law of the
state of Chihuahua).

2. Rights of Custody
and Violation of Rights of Custody
Under

the

Convention,

a

parent’s

“rights

of

custody” includes “rights relating to the care of the
person of the child and, in particular, the right to
determine

the

child’s

place

of

residence.”

Hague

Convention, art. 5(a); see also Furnes v. Reeves, 362
F.3d 702, 716 n.12 (11th Cir. 2004) (explaining that
the Convention “favors a flexible interpretation of the
terms used, which allows the greatest possible number
of cases to be brought into consideration,” because
“the intention of the Convention is to protect all the
ways

in

which

exercised....”)
citations

custody
(emphasis

omitted),

of
in

abrogated

children
original)
on

other

can

(internal
grounds

Lozano v. Montoya Alvarez, 134 S. Ct. 1224 (2014).
17

be

by

Rights of custody may arise by operation of law, by
a

judicial

agreement

or

having

administrative
legal

effect

decision,
under

or

an

law

the

by
of

the

country of the child’s habitual residence.
Convention, art. 3.

See Hague

Here, Martinez argues that her

rights of custody arise by operation of Chihuahua’s
civil-law

doctrine

of

patria

potestas,

or

parental

authority and responsibility.3
The doctrine of patria potestas “has its roots in
Roman law,” where it “conveyed absolute and despotic
rights

of

a

father

over

his

children”;

today,

in

3. Courts in Hague Convention cases are often
called upon to interpret foreign law, which can pose
special challenges for them if they are unfamiliar with
those rules.
In such cases and to assist in this
court’s determination, Federal Rule of Civil Procedure
44.1 liberalizes evidentiary rules and allows courts to
“consider any relevant material or source, including
testimony, whether or not submitted by a party or
admissible under the Federal Rules of Evidence.” Fed.
R. Civ. P. 44.1. The Convention, too, allows courts to
“take notice directly” of the law and judicial and
administrative decisions of the country of the child’s
habitual residence when determining whether a child was
wrongfully removed.
Hague Convention, art. 14; see
also Salvidar, 879 F. Supp. 2d at 621.
18

Mexico,

the

doctrine

“‘regulates

relations

between

parents and children until the latter reach the age at
which they must fend for themselves.’”

Saldivar, 879

F. Supp. 2d at 623-24 (citing Patricia Begné, Parental
Authority and Child Custody in Mexico, 39 Fam. L.Q.
527, 527-530 (2005)).

It is “[d]esigned to protect the

interest of children,” and it “constitutes the ‘most
comprehensive’ right that a parent can exercise over
the person and property of his or her minor children.”
Id. (citing Stephen Zamora, et al., Mexican Law 482
(2004));

see

also

Begné,

Parental

Authority

at

531

(“Custody and care of their minor children is the first
duty of parents.

Custody refers to being with and

caring for the child. ... Parental authority places a
series of correlative rights and obligations on the
holder of parental authority, such as custody of the
minors, the authority to raise them, discipline them,
represent
property,

them
feed

in
and

legal
care

for
19

acts,
them,

administer
etc.”)

their

(internal

citations omitted).

In other words, patria potestas

establishes the parent’s bundle of rights over a minor
child, one of which is formal custody, but it also
includes

the

right

to

care

for

the

child

and

make

decisions about his or her life.
Chihuahua’s civil code reflects this view.

Código

Civil del Estado de Chihuahua [Chih. Civ. Code], tit.
8, ch. 1, art. 388 et seq.

Under the civil code,

patria potestas rights are shared by father and mother,
and

they

establish

the

right

to

care

for,

educate,

spend time with, discipline, and set an example for the
child.

See id. at arts. 390; 391; 394; 399; 400.

Patria potestas also confers the right to live with the
child and determine the child’s location.
art.

398

(“As

long

as

the

child

is

See id. at

under

parental

authority/responsibility (patria potestas), he or she
shall not leave the house of those who exert it without
their permission or by means of an order emitted by an
authority legally qualified to do so.”).
20

In short,

patria potestas includes “rights relating to the care
of the person of the child,” and the operation of the
doctrine under the law of Chihuahua establishes that
both Martinez and Preston shared “rights of custody” as
contemplated by the Convention.

Hague Convention, art.

5; cf. Vale v. Avila, 538 F.3d 581, 586 (7th Cir. 2008)
(holding

that

the

Venezuelan

doctrine

of

patria

potestas conferred rights relating to the care of the
person of the child under the meaning of the Hague
Convention);

Salvidar,

879

F.

Supp.

2d

at

623-626

(finding that the Mexican state of Chihuahua’s doctrine
of

patria

potestas

establishes

“rights

of

custody”

under the Convention).
In the case of parental separation, the civil code
provides that patria potestas rights and obligations
continue, though parents mutually may alter these terms
by agreement.
393

(“In

continue

case

See Chih. Civ. Code, tit. 8, ch. 1, art.
of

fulfilling

separation ...,
their
21

both

obligations

parents
and

they

must
can

agree upon the terms of its exertion, particularly in
all

things

concerning

minors.”).

If

the

the

care

parents

are

and

custody

unable

to

of

reach

the
an

agreement, they may turn to a judge; absent a court
ruling, however, their joint rights continue.
The separation provision, of course, is relevant to
the crux of this case.
the

“Termination

relinquished

her

of

Preston argues that, by signing
Parental

rights

of

Rights
custody

Form,”
and

Martinez

any

other

custodial or access rights that might be recognized
under

the

Convention.

that,

because

Martinez

Similarly,
signed

the

Preston
“Travel

contends
Consent

Form,” he did not breach her custody rights when he
took the children to Alabama.

Martinez responds that

she was fraudulently induced to sign the forms; that
she did not consent to relinquishing any parental or
custodial rights; that her patria potestas and custody
rights remained fully intact at the time of removal;
and that Preston removed the children from her home in
22

breach of her rights, which were later recognized by
the local family court.
This court agrees with Martinez that, by signing
Preston’s forms, she did not terminate her parental
rights and that Preston’s removal of the children to
Alabama

without

her

consent

breached

her

rights

of

custody under the Convention.
As an initial matter, there was no true agreement
between

the

parents

fraudulently

to

induced

modify

Martinez

her
to

rights.
sign

Preston

forms

language she did not adequately understand.

in

a

There was

significant dispute between the parties at the hearing
regarding Martinez’s English-language skills.

Martinez

testified that she cannot speak or read any English;
Preston

testified

she

could

both

speak

and

read

English; and Preston’s mother testified that she and
Martinez had conversations in English about childcare
and they also read children’s books in English.
record

before

it,

the

court
23

need

not

On the

resolve

this

question.

Even

if

the

court

were

convinced

that

Martinez could speak English, it would be only very
limited
still

conversational

conclude

skills

were

that

not

English,

her

and

spoken

sophisticated

the

and

court

written

enough

to

would

English
read

or

understand the meaning of these documents on her own.
The forms purported to terminate her own parental
rights, allow her children to relocate to the United
States, and prohibit any contact with her until the
children reached adulthood.

While Preston maintains

that he explained to Martinez the meaning of the forms
and

the

terms

within

them

and

that

she

read,

understood, and consented to them, the court does not
find his testimony credible.

Martinez’s actions after

Preston left Mexico reveal his lie.
First, after her husband left with her children on
April

29,

Martinez

displayed

both

dispatch

and

persistence in pursuing the location and return of her
children: immediately and repeatedly calling to find
24

out

where

complaint;

her

children

initiating

were;

filing

international

a

criminal

proceedings

in

Mexico; and petitioning the family-court for custody.
Her dispatch and persistence are inconsistent with her
having

knowingly

and

voluntarily

agreed

to

the

termination of her parental rights, just before her
husband and her children left, and having knowingly and
voluntarily turned over her children to her husband on
the morning of their departure.
Second, Preston contends that he did not initiate
proceedings in Mexico for the custody of his children
because

Mexico

complainant;

he

would

not

further

recognize

contends

that

him
he

as
did

a
not

complain to Mexican officials that Martinez was unfit
as a mother because he did not want the children taken
into Mexican custody.
Martinez

was

so

However, if, as he contends,

willing

to

terminate

her

parental

rights and give him custody as reflected in the two
documents he says she knowingly and voluntarily signed,
25

there

is

no

reason

why

they

both

(or,

more

significantly, she alone at his request) could not have
initiated Mexican proceedings to carry out this goal.
The most plausible conclusion for why they did not do
so

is

that

Martinez

was

giving up her children.

unwilling

to

cooperate

in

The documents are fraudulent.

In other words, Martinez’s signatures were induced
by Preston’s deception.

Because she did not consent,

the court finds that there was no agreement to modify
or terminate her parental rights.

Cf. Jorge A. Vargas,

Mexican Law for the American Lawyer (2009), at 138, 141
(explaining that under Mexican law, an agreement that
creates

or

transfers

obligations

and

rights

is

a

contract; that consent is an essential element to a
contract;

and

that

consent

is

“invalid

if

given

by

mistake, obtained by violence or duress or exacted by
fraud”)

(internal

maintained

her

full

citations
patria

omitted).
potestas

rights

Martinez
as

the

mother of her children, despite her signatures on these
26

forms,

and

“rights

there

of

is

no

custody”

question
as

that

she

contemplated

possessed

under

the

Convention at the time of her children’s removal.
The

court’s

evidence.

conclusion

is

reinforced

by

First, the civil code of Chihuahua is clear

that patria potestas rights are “not waivable.”
Civ. Code, tit. 8, ch. 3, art. 425.
court

other

may

terminate,

modify,

or

Chih.

As such, though a
suspend

a

parent’s

patria potestas rights for various reasons, Martinez
could not sign away these rights on the forms Preston
produced for her even if she had wanted to.
interpretation

of

the

law

was

confirmed

by

This
Jaime

Valenzuela Escobar, one of Martinez’s witnesses and a
longtime practitioner in the family-court system of the
state of Chihuahua, who explained that, under Mexican
law,

“no

parental

parent
rights.

can

renounce

Only

a

his

court

or

can

her

universal

withdraw

them.”

Moreover, notarization--even when valid--does not make

27

valid

a

parent’s

attempt

to

surrender

these

rights

without court involvement.
Second,

Martinez

initiated

a

custody

proceeding

against Preston in the Bravos District family court of
Chihuahua shortly after Preston left with the children,
and, on June 5, 2014, she received a default order
granting her sole provisional guardianship over the two
children.

As the family court explained, the children

were ordered to be with their mother, “Due to social
and legal interests and to the young age of the minors
... because they need special care that can only be
provided by her.”

Bravos Order (doc. no. 9), at 5.

If

there is any remaining doubt as to the continuity of
Martinez’s

parental

rights

under

Mexican

law,

the

family-court order makes clear that Martinez did not
rescind her parental rights in any way by signing the
fraudulent form.
Finally,

Preston’s

removal

of

the

children

to

Alabama without Martinez’s consent or a judicial order
28

was in breach of her rights of custody, not to mention
other

correlative

Code,

tit.

8,

parental

ch.

1,

rights.

art.

398

See

(“The

Chih.

Civ.

abduction

or

retention of the minor outside of his or her habitual
residence

without

the

permission

of

those

exerting

parental authority/responsibility (patria potestas) or
custody, grants the right to initiate the restitution
procedure

contemplated

Procedure.”);

Saldivar,

in

the

879

F.

Code
Supp.

of
2d

Civil
at

626

(explaining that art. 398 of the Chihuahua civil code
“gives a parent the right to consent before her child
can

be

removed

Accordingly,

or

Martinez

retained

away

from

has

satisfied

Mexico”).

the

second

condition of wrongful removal.
3. Exercise of Rights of Custody
The third factual inquiry is whether the person
seeking the child’s return was actually exercising his
or her rights of custody at the time of removal, or
would have been but for the removal.
29

Up

until

the

Martinez

shared

children

in

children,

day

with

their

provided

the

children

were

Preston

joint

custody

home.
for

Martinez
their

food

removed,
of

the

for

her

home,

and

cared
and

arranged for their education and supervision at their
daycare.
the

This conduct makes clear that at the time of

removal,

Martinez

rights of custody.

was

actually

exercising

her

See Hanley v. Roy, 485 F.3d 641,

650 n.8 (11th Cir. 2007) (concluding that grandparents
were actually exercising custody when they lived with
the children, provided for them, and paid for their
school tuition, clothing, and household expenses); see
also Sealed Appellant v. Sealed Appellee, 394 F.3d 338,
344-345 (5th Cir. 2004) (explaining that the “exercise”
of rights of custody should be construed liberally and
that

“even

occasional

contact

with

the

child

constitutes ‘exercise’ of those rights”).
Moreover,

any

argument

that

Martinez

was

not

actually exercising her rights of custody by virtue of
30

signing

the

fraudulent

forms

fails.

As

discussed

above, these forms had no legal effect on her status as
a parent; they also had no practical effect, as even
after signing the forms, she continued to live with and
care for the children until they were removed from her
custody several weeks later.
Therefore,

Preston

wrongfully

removed

the

two

children within the meaning of the Hague Convention.

B. Affirmative Defenses
Under

certain

exceptional

circumstances,

a

court

may refuse to return a child to his or her country of
habitual residence for a custody determination, even
when it finds that the child was wrongfully removed.
These exceptions should be construed “narrowly,” and,
given the aims of the Convention, a court maintains the
discretion to return the child despite the existence of
a defense.

Baran, 526 F.3d at 1345.

31

Three of these defenses are relevant here.

First,

if the proceeding was commenced a year or more after
the child’s removal and if the respondent establishes
that the child is now settled in the new environment,
the court may refuse to return the child.
Convention, art. 12.

See Hague

Second, the court may refuse to

return the child if there is a “grave risk that his or
her

return

would

expose

the

child

to

physical

or

psychological harm or otherwise place the child in an
intolerable situation.”
the

court

respondent

may

refuse

establishes

Id. at art. 13(b).
to

return

that

the

the

Finally,

child

if

left-behind

the

parent

consented to or subsequently acquiesced in the removal.
See id. at art. 13(a).
The

affirmative

defense

of

physical

or

psychological harm or other intolerable situation must
be established by clear and convincing evidence; the
other

exceptions

argued

in

this

case

preponderance-of-the-evidence standard.
32

must

meet

the

See 22 U.S.C.

§ 9003(e)(2)(A) & (e)(2)(B).

The court will examine

each defense in turn.

1. Settlement Defense
The Convention provides that, where “a period of
less than one year has elapsed from the date of the
wrongful removal” to the commencement of proceedings,
the

court

“shall

forthwith.”
added).
passed,

order

Hague

the

return

Convention,

of

art.

the

12

child

(emphasis

On the other hand, if one year or more has
the

“shall”

language

does

not

apply

if

the

respondent can show that the child is now “settled” in
his or her new environment, id., a defense that allows
the court to consider stability in the child’s family,
educational,

social,

and

home

life.

See

Lozano

v.

Montoya Alvarez, 134 S. Ct. 1224, 1231, 1234-35 (2014)
(explaining that “the expiration of the 1–year period
opens

the

door

to

consideration

of

...

the

child’s

interest in settlement”); see also Hague International
33

Child Abduction Convention: Text and Legal Analysis, 51
Fed. Reg. 10494, 10507 (Mar. 26, 1986) (explaining that
the settlement defense is available for petitions filed
“a year or more” after removal).
Therefore, the first question for this defense is
whether one year or more has passed.

Preston argues

that Martinez filed her petition exactly one year after
she

learned

that

her

children

had

been

removed

and

that, as such, he is entitled to present evidence that
the children are now settled in Alabama.
The court finds Preston’s computation unpersuasive.
The

children

were

removed

on

April

29,

2014,

Martinez filed her petition on April 28, 2015.
Hague

Convention

itself

is

silent

on

and
The

computational

methodology, but Rule 6 of the Federal Rules of Civil
Procedure, which governs the procedures in this court,
establishes a default method for computing time when a
particular method is not specified in a statute: the
day of the event that triggers the period should be
34

excluded from the computation, but the last day of the
period should be included (unless it is a weekend or
court holiday).

Fed. R. Civ. P. 6(a)(1).

Using this

method, Martinez filed her petition 364 days after the
children were wrongfully removed--less than one year.
Preston contends that the court should include the
day of removal in its computation, resting his argument
on a case explaining that “the one-year limit runs when
the

petitioner

removal.

should

have

known”

of

the

wrongful

Muhlenkamp v. Blizzard, 521 F. Supp. 2d 1140,

1151 (E.D. Wash. 2007) (Shea, J.).4

But the court in

that case merely was determining which day triggers the
one-year period; it did not find that the trigger day
should

be

included

in

the

one-year

computation

or

4. It is worth noting here that the proposition
that the one-year period can be equitably tolled when
the abducting parent conceals the location of the child
from the left-behind parent--formerly the rule in the
Eleventh Circuit--was recently overruled by the Supreme
Court. See Lozano v. Montoya Alvarez, 134 S. Ct. 1224
(2014) (abrogating Furnes v. Reeves, 362 F.3d 702 (11th
Cir. 2004)).
35

establish any other unique computation method.
this

citation,

Preston

has

provided

the

Beyond

court

no

persuasive reason why the methodology set forth in Rule
6 should not apply.

Nor does he argue that Rule 6

conflicts with the language or purposes of the Hague
Convention.

As

such,

the

method for this case.

court

adopts

the

Rule

6

See Falk v. Sinclair, 692 F.

Supp. 2d 147, 164 (D. Me. 2010) (Singal, J.) (applying
Fed. R. Civ. P. 6(a)(1) to compute the one-year period
in a Hague Convention case).
Therefore, because less than one year had elapsed
before Martinez initiated these proceedings, the court
will not--and, indeed, cannot--consider evidence that
the children are now settled in their new environment.

2. Physical or Psychological Harm
Preston
will

expose

psychological

next

argues

them
harm

to
or

a

that
grave
place
36

returning
risk
them

of
in

the

children

physical
an

or

otherwise

intolerable situation.

Preston contends that Martinez

is addicted to drugs and alcohol and that she leaves
the children at home unsupervised or supervised only by
an older sibling for hours, days, or sometimes longer.
Preston also hinted at generalized safety

and crime

concerns in Ciudad Juárez, though he did not identify
any particular risks to his children, beyond his belief
that

they

are

more

vulnerable

to

kidnapping

as

Americans.
The exception for grave harm “is not license for a
court in the abducted-to country to speculate on where
the child would be happiest,” as that question is a
custody matter.

Friedrich v. Friedrich, 78 F.3d 1060,

1068 (6th Cir. 1996).

Nor is the court to consider

whether the child would be returning to a home where
finances or educational resources are more limited, id.
at 1068-69, or “who would be the better parent in the
long run.”
exception

Whallon, 230 F.3d at 459.
contemplates

a
37

situation

Rather, this
where

the

possibility

of

harm

is

“a

great

deal

more

than

minimal,” id., such as if returning the child puts him
or her “in imminent danger prior to the resolution of
the custody dispute--e.g., returning the child to a
zone of war, famine or disease,” Friedrich, 78 F.3d at
1069 (emphasis in original), or in cases of serious
abuse

or

neglect,

such

as

when

a

custodial

parent

sexually abuses the child and “the other parent removes
or retains the child to safeguard it against further
victimization.”
International

Baran, 526 F.3d at 1348 (citing Hague
Child

Abduction

Convention:

Text

and

Legal Analysis, 51 Fed. Reg. at 10510); cf. id. at 1352
(holding that credible evidence of father’s violence in
his son’s presence; threats to his son’s safety; and
inability to properly care for himself or son due to
injury and alcohol abuse demonstrated a grave risk of
harm).
Preston

has

failed

to

establish

by

clear

and

convincing evidence any such extraordinary circumstance
38

in

Juárez

testified,

or

within

as

stated,

Martinez’s
that

family.

Martinez

had

Preston
a

drug

and

alcohol problem and that she would frequently leave the
children at home alone, sometimes for days at a time.
Specifically, Preston noted one incident where he came
home after a trucking job to find the children alone
and their son’s arm broken.

Preston also contended

that Martinez’s substance-abuse problems and negligent
care

of

the

children

caused

him

to

lose

several

trucking jobs, as he would be forced to stay off the
road and home with the children when she was missing.
But Preston’s fraud on both Martinez and the court
with the two documents calls into question his overall
credibility, and thus the court is unwilling to rely on
his testimony in determining whether Martinez has, as
he contends, a substance-abuse problem and is negligent
in

her

care

of

the

children.

Moreover,

there

is

nothing in the record to indicate that Mexican courts
cannot

address

and

act

with
39

sufficient

rapidity

to

protect the children’s interests and any problem that
does exist.

Indeed, if Preston has concerns, he can

move swiftly for immediate relief by responding to the
provisional custody proceedings that have already been
initiated in the Bravos District family court.

This

court leaves it up to the Mexican courts to determine
whether Preston’s criticisms of his wife are merely the
false aspersions of an angry, estranged husband seeking
to gain custody of his children by any means, legal or
illegal,

or

problems.

whether

Martinez,

in

fact,

has

such

This court should not be understood in any

way to have found that she does or does not have such
problems.

3. Consent or Subsequent Acquiescence
Finally, Preston argues that Martinez consented to
or

acquiesced

myriad

reasons

in

the

children’s

discussed

above,

removal.
Martinez

For

the

did

not

consent to the removal of her children, and her conduct
40

immediately after Preston left for Alabama makes clear
that she did not acquiesce to their removal once they
were gone.

See Friedrich, 78 F.3d at 1070, 1070 n.13

(holding that the exception for acquiescence must be
“convincing,”

and

explaining

that

a

“hastily-drafted

and soon-rued written agreement” would be insufficient
under this standard).

***

In

conclusion,

wrongfully

removed

because
under

Martinez’s

the

Hague

children

were

Convention,

court will grant her the relief she requests.
court

will

order

that

the

children

be

the
The

returned

to

Mexico for a custody determination to be made by a
Mexican court under Mexican law.

Martinez’s legal fees

and the cost of the children’s return transportation
are

to

be

borne

by

Preston,

§ 9007(b)(3).
41

pursuant

to

22

U.S.C.

Nevertheless,
logistical

there

question

expeditiously

and

of

remains

how

safely

the

the

children

returned

to

important
are

Mexico.

to

be

Before

making this decision, the court will again consult with
counsel for both Martinez and Preston.

The court will

also

an

consider

taking

advantage

of

offer

of

assistance from the Office of Children’s Issues of the
United States Department of State, which “performs the
functions

of

the

Central

Authority

States under the Convention.”

for

the

United

Letter from the United

States Department of State, Office of Children’s Issues
(doc. no. 13-1).

The Office has the legal authority to

offer the consultation services of four “U.S. Network
Judges,” who are “experts in the Convention and other
international family law issues.”

Id.

An appropriate judgment will be entered.
DONE, this the 20th day of May, 2015.
/s/ Myron H. Thompson____
UNITED STATES DISTRICT JUDGE