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
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