Jose Lucas Valverde, v. Silvia Patricia Rivas

Filing 29

ORDER - IT IT ORDERED GRANTING the 5 EX PARTE PETITION for Return of Child. The child has been in the custody of Child Protective Services pending further order of the court. IT IS NOW ORDERED that Child Protective Services shall transfer physical custody of the child, as soon as it is reasonably practicable, to Encarnacion Rodriguez, as agent for petitioner Jose Lucas Valverde, for return to the Republic of Mexico. IT IS FURTHER ORDERED, so as to minimize the trauma to the child, that the res pondent Silvia Patricia Rivas, shall accompany Encarnacion Rodriguez and the child to Mexico. We urge both the petitioner and the respondent to file a proceeding in the appropriate Mexican court to establish the appropriate custody arrangements for Lucas in Mexico. Signed by Judge Frederick J Martone on 9/5/08. (SAT)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Jose Lucas Valverde, Petitioner, vs. ) ) ) ) ) ) ) ) ) No. CV-08-1404-PHX-FJM ORDER

12 Silvia Patricia Rivas, 13 14 15 16 Respondent.

This is a petition for return of child under 42 U.S.C. § 11603 and the Convention on

17 the Civil Aspects of International Child Abduction (the Hague Convention). After a trial to 18 the court, these are our Findings and Conclusions under Rule 52(a), Fed. R. Civ. P. 19 20 21 Petitioner, respondent, and their minor child, Lucas, are all Mexican nationals. Petitioner and respondent, although unmarried, lived as husband and wife in Chihuahua,

22 Mexico at the time of Lucas' birth to them. After several years, in 2005, they separated and 23 reached an agreement with respect to the joint custody of Lucas. During that same year, 24 respondent left Chihuahua with Lucas and unlawfully brought him to the United States. 25 26 Petitioner has not seen his child since. He invoked his rights under the Hague Convention 27 and, through the United States Department of State, obtained pro bono counsel who filed this 28 action.

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I find very plainly that the removal of Lucas from Mexico to the United States is wrongful under Article 3 of the Hague Convention. First, it interfered with the custody rights of the petitioner. Second, he had been actually exercising those rights, and, third, the child

5 was a habitual resident of Chihuahua before his wrongful removal. Petitioner is the father of 6 Lucas and had an oral agreement with respondent to joint custody valid under the law of 7 8 9 10 Chihuahua. I find therefore that petitioner has met his burden by a preponderance of the evidence that the child was wrongfully removed. The respondent raises the affirmative defenses set forth in Article 13 of the Hague

11 Convention. I find that respondent has failed to meet her burden of proof that the petitioner 12 was not actually exercising custody rights at the time of the removal, or consented to or 13 14 acquiesced in the removal. 15 The respondent did present substantial evidence that the petitioner was violent towards

16 her and her two children by another relationship (but not Lucas), used drugs, and had a 17 criminal record in Mexico. Respondent contends that there is a grave risk that the return of 18 19 the child would expose Lucas to physical or psychological harm within the meaning of Article 20 13(b) of the Hague Convention. Under 42 U.S.C. § 11603(e)(2)(A), the respondent has the 21 22 23 burden of establishing that affirmative defense by clear and convincing evidence. On the evidence before me, I find that she has not done so. There is no evidence that the petitioner

24 was ever violent towards Lucas. His criminal record is somewhat dated. And, the evidence 25 with respect to his use of drugs was conflicting and does not rise to the level of clear and 26 27 28 those issues are not within the scope of the Hague Convention. -2convincing evidence. Of course, this evidence would be highly relevant to custody issues, but

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This is not to say that there is no risk. It is just that the respondent failed to prove by clear and convincing evidence that there is a grave risk. We believe that any risk can be accommodated by fashioning appropriate relief. International child abduction is an evil which both the United States and the Republic

6 of Mexico have tried to deal with through the Hague Convention. We do not decide the 7 8 9 10 question of custody. Questions of custody and the best interests of the child are properly to be decided by the appropriate court in Mexico. We note that the petition in this case was filed less than one year from the date the

11 petitioner discovered the whereabouts of his son. He invoked his rights with the Central 12 Authority in Mexico immediately upon learning of the abduction. Respondent secreted Lucas 13 14 from him. Accordingly, under Article 12 of the Hague Convention, we find that the child 15 should be returned forthwith. In the alternative, we do not find that the child is settled in his 16 new environment. The child is an illegal alien and the evidence is undisputed that (1) he has 17 no visa to be in the United States, (2) no petition for citizenship has been filed, and (3) he has 18 19 no I-94 form. Thus, even in the absence of this petition, he is subject to removal from the 20 United States. Accordingly, IT IS ORDERED GRANTING the Petition for Return of Child 21 22 23 (doc. 5). The child has been in the custody of Child Protective Services pending further order

24 of the court. IT IS NOW ORDERED that Child Protective Services shall transfer physical 25 custody of the child, as soon as it is reasonably practicable, to Encarnacion Rodriguez, as 26 27 28 FURTHER ORDERED, so as to minimize the trauma to the child, that the respondent Silvia -3agent for petitioner Jose Lucas Valverde, for return to the Republic of Mexico. IT IS

1 Patricia Rivas, shall accompany Encarnacion Rodriguez and the child to Mexico. We urge 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4to establish the appropriate custody arrangements for Lucas in Mexico. DATED this 5th day of September, 2008. both the petitioner and the respondent to file a proceeding in the appropriate Mexican court