Marquez v. Castillo

Filing 34

ORDER: The minor child, J.V.O. shall be returned to Mexico. The minor child, J.V.O. shall be accompanied by an officer from the Mexican Consulate during his return to Mexico. Petitioner's counsel shall notify the Court once J.V.O.'s ret urn is complete. The Respondent, Ayliem Orihuela Castillo, may accompany J.V.O. and the consular officers to Mexico, if she chooses, at her own expense. The Clerk of Court shall retain Respondent's and J.V.O.'s travel documents until furt her order from this Court. The Clerk of Court is directed to close this case and terminate any pending motions as moot. The Court reserves jurisdiction to determine costs, fees, and expenses pursuant to 42 U.S.C. § 11607. Signed by Judge James S. Moody, Jr on 12/5/2014. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

JOSE GUADALUPE VALDES
MARQUEZ,
Plaintiff,
v.

Case No: 8:14-cv-2407-T-30TBM

AYLIEM ORIHUELA CASTILLO,
Defendant.

ORDER
THIS CAUSE comes before the Court upon the Amended Petition for the Return of
a Minor Child to Mexico and Issuance of Show Cause Order. Upon review and
consideration, it is the Court’s conclusion that the Amended Petition should be granted.
Background
Petitioner commenced this action alleging that his wife, Respondent, Ayliem
Orihuela Castillo, wrongfully removed their minor child, J.V.O., age three, from their
residence in Mexico. Petitioner seeks immediate return of the minor child to Mexico under
the International Child Abduction Remedies Act, 42 U.S.C. §§ 11601-11610 (“ICARA”).
Petitioner sought provisional relief during the pendency of the ICARA Petition, including
a Warrant of Arrest directing the United States Marshals Service to serve the Petition and
any orders of this Court related to the Petition on Respondent, and to take into custody
Respondent and J.V.O.’s travel documents to be delivered to the Court pending the

resolution of these proceedings. Petitioner further sought an order prohibiting removal of
the child from the Tampa division of this district.
The Court granted Petitioner’s requests, and issued an Order directing Respondent
to appear at a hearing with her and J.V.O.’s travel documents. The Order also provided
contact information for local legal aid offices and encouraged Respondent to retain counsel
to assist her in defending against the Petition. The Court held a hearing on November 12,
2014, at which Respondent appeared pro se. Respondent delivered her and J.V.O.’s
passports to the Court. The Court instructed her to remain within its jurisdiction with J.V.O.
until further notice. The Court scheduled a final evidentiary hearing for November 20,
2014, and again advised Respondent that she should retain counsel to assist her with her
defense. At the hearing, Respondent appeared without counsel. The Court continued the
hearing until December 3, 2014.
The Court conducted the final evidentiary hearing on December 3, 2014. Petitioner
appeared by videoconference and was represented by pro bono counsel. Respondent
appeared personally and was represented by pro bono counsel. Petitioner and Respondent
both testified through a court certified interpreter. The Respondent submitted two exhibits
into evidence: a copy of her passport and a copy of J.V.O.’s passport.
Undisputed Facts
Petitioner and Respondent married in Cuba on or about April 6, 2012. Respondent
and J.V.O. moved to Mexico to live with Petitioner on or about December 5, 2012.
Respondent requested that Petitioner file the appropriate papers for her to bring her other
two children to live in Mexico. Petitioner, Respondent, and J.V.O. lived together in

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Petitioner’s family home until October 2013. J.V.O. spent ten months in Mexico living
with Petitioner and Respondent prior to arriving in the United States.
On or about October 4, 2013, Respondent left Mexico with J.V.O. without warning
to or knowledge of Petitioner. Several days later, the parties began communicating by email. However, the communication stopped and Petitioner has not seen J.V.O. since
Respondent removed him from Mexico.
Petitioner is J.V.O.’s natural father. Petitioner was born in Mexico, has lived in
Mexico for his entire life, and is a Mexican citizen. Respondent is J.V.O.’s natural mother.
Respondent was born in Cuba and is a Cuban citizen. Respondent lived in Cuba until she
moved to Mexico. Her current address is in Tampa, Florida. Respondent has immediate
and extended family in Cuba, including her parents and two minor children.
Discussion
I.

Legal Standard

The Hague Convention on the Civil Aspects of International Child Abduction,
T.I.A.S. No. 11,670, 1 (the “Convention”) to which Mexico and the United States are
signatories, was adopted in 1980 “to protect children internationally from the harmful
effects of their wrongful removal or retention and to establish procedures to ensure their
prompt return to the State of their habitual residence.” The rationale underlying the
Convention is that a child’s country of habitual residence is the place where decisions
relating to custody and access are best decided. Bocquet v. Ouzid, 225 F. Supp. 2d 1337,

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The Convention was reprinted in 51 Fed. Reg. 10,494 (Mar. 26, 1986).

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1340 (S.D. Fla. 2002).
The United States implemented the Convention through ICARA which entitles a
person whose child has been wrongfully removed to, or wrongfully retained in, the United
States to petition a federal court to order the child returned. 42 U.S.C. § 11603(b). Courts
considering an ICARA petition have jurisdiction to decide the merits only of the wrongful
removal or retention claim, not of any underlying custody dispute. Lops v. Lops, 140 F.3d
927, 936 (11th Cir. 1998); see also Friedrich v. Friedrich, 78 F.3d 1060, 1063 (6th Cir.
1996).
In order to establish a prima facie case of wrongful removal or retention under the
Convention and ICARA, a petitioner must show by a preponderance of the evidence that
“(1) the habitual residence of the child immediately before the date of the alleged wrongful
removal was in the foreign country; (2) the removal breached the petitioner's custody rights
under the foreign country's law; and (3) the petitioner was exercising custody rights at the
time of the removal.” Bocquet, 225 F. Supp. 2d at 1339.
The Convention establishes that the law of the country in which a child was
habitually resident governs decisions as to whether custody rights existed at the time of
removal, and it permits judicial notice to be taken of that country's law. Id. at 1345 (citing
Convention, Art. 14). Once petitioner meets that burden, ICARA requires a child who has
been wrongfully removed or retained to be “promptly returned unless one of the narrow
exceptions set forth in the Convention applies.” See Lops, 140 F.3d at 936 (citing 42 U.S.C.
§ 11601(a)(4)).

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The general rule that a wrongfully removed or retained child must be returned is
subject to six exceptions, also referred to as “affirmative defenses,” each of which may
excuse the return of the child. Convention Art. 12, 13, 20. The exception at issue in this
case is grave risk of harm to the child. A court need not order the return of a child if the
respondent demonstrates by clear and convincing evidence 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.” Convention Art. 13(b); 42 U.S.C. §
11603(e)(2)(A). See also In re S.L.C., 4 F. Supp. 3d 1338, 1350 (M.D. Fla. 2014). Even if
an exception is established, the Court has discretion to order the return of a child if return
would further the aims of the Hague Convention. In re S.L.C., 4 F. Supp. 3d at 1350.
a. Habitual Residence
The Petitioner first must show that J.V.O. was habitually resident in Mexico at the
time of his removal. The Eleventh Circuit has established a two-step process for
determining habitual residence. Seaman v. Peterson, 762 F. Supp. 2d 1363, 1377 (M.D.
Ga. 2011) aff'd, 766 F.3d 1252 (11th Cir. 2014). First, the Court must determine “[w]hether
there [was] a settled intention to abandon a prior habitual residence ....” Ruiz v. Tenorio,
392 F.3d 1247, 1252–53 (11th Cir. 2004) (per curiam). “It is not necessary to have this
settled intention at the time of departure, as it could develop during the course of a stay
originally intended to be temporary.” Id. at 1252. Courts recognize that where the situation
involves a very young child, the shared intent of the parents in determining the residence
of their child is of primary concern. See id. at 1253.

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The Court is satisfied that Respondent had a settled purpose to abandon Cuba as her
and the child’s primary residence and to reside permanently in Mexico with Petitioner and
the minor child. Respondent presented evidence that she maintains a home in her name in
Cuba; the minor child resided in Cuba for over a year prior to arriving in Mexico; and she
has two minor children in Cuba. However, the Respondent did agree that she began the
process to have her other minor children move to Mexico, that she intended to live with
Petitioner in Mexico as a family with J.V.O., and that the Petitioner began construction of
additional space in his home to accommodate her other minor children. She also insisted
that she wanted to find work while in Mexico.
Having determined that the Respondent intended to abandon her previous habitual
residence in Cuba, the Court next must determine if there was “an actual change in
geography and the passage of a sufficient length of time for the child to have become
acclimatized.” Id. at 1253. J.V.O. lived in Mexico for approximately ten months with
Petitioner, Respondent and Petitioner’s extended family. Respondent was his primary
caretaker. The child was not registered in school and he traveled to Cuba on a few occasions
with Respondent to visit family. Nonetheless, Respondent does not dispute that it was her
overall intention to live with Petitioner in Mexico as a family, in spite of her trips to Cuba.
The Court finds that J.V.O.’s country of habitual residence, prior to his removal to
the United States, is Mexico. Mexico is the last country where the parties intended to reside
together with the child. Further, when Respondent traveled from Cuba to Mexico, she
intended to bring her other children to Mexico to live with her and Petitioner. Respondent
also came to Mexico intending to obtain work.

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b. Petitioner’s Custody Rights
Since the Court has determined that Mexico was J.V.O.’s habitual residence,
Mexican law will determine whether Petitioner had custody rights at the time of removal.
The statute implementing ICARA defines the term “rights of custody” as “rights of care
and custody of a child, including the right to determine the place of residence of a child,
under the laws of the country in which the child is a habitual resident—(A) attributed to an
individual or legal custodian; and (B) arising—(i) by operation of law, or; (ii) through a
judicial or administrative decision; or (iii) through a legally enforceable arrangement
between the parties.” 22 U.S.C. § 9101, Convention, Art. 3.
“The Convention defines ‘rights of custody’ to ‘include rights relating to the care of
the person of the child and, in particular, the right to determine the child's place of
residence.’ ” Abbott v. Abbott, 130 S.Ct. 1983, 1989 (2010) (quoting Convention, Art. 5).
See also Hanley, 485 F.3d at 645 (citing Convention, Art. 5; Furnes v. Reeves, 362 F.3d
702, 711 (11th Cir. 2004) abrogated on other grounds by Lozano v. Montoya Alvarez, 134
S. Ct. 1224 (2014)). “[A] parent need not have ‘custody’ of the child to be entitled to return
of his child under the Convention; rather, he need only have one right of custody.” Furnes,
362 F.3d 714. “Further, he need not have a sole or even primary right of custody.” Id. at
714–15. A parent who has authority under the law of the state of habitual residence to make
decisions regarding the personal care, protection, maintenance, and finances of the child,
possesses rights of custody that fall “within the ambit of decisions relating to ‘the care of
the person of the child’ within the meaning of Article 5 of the Convention.” Hanley, 485
F.3d at 647 (quoting Furnes, 362 F.3d at 713–14 & 714 n. 11).

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In Seaman, the court examined the petitioner’s right of custody under the laws of
the Civil Code for the State of Jalisco, Mexico. 762 F. Supp. 2d at 1378. The court noted
that “[in] Mexico generally, and in Jalisco particularly, the doctrine of patria potestas
(parental authority/responsibility) governs the relationship between parents and their
children.” Id. “ ‘Parental authority/responsibility (patria potestas) can be understood as
the series of reciprocal rights and obligations that exist between the father and the mother....
Its purpose is the custody of the minors themselves as well as their assets and it is intended
to protect them.’ ” Id. (quoting the Civil Code for the State of Jalisco, Mexico). Further,
“[p]atria [p]otestas ‘is exerted by both parents,’[] and lasts until it ceases …, is terminated
…, or is suspended … .” Id.
The court examined whether the rights conferred on the petitioner by the doctrine
of patria potestas are rights of custody and noted that the Eleventh Circuit had not yet
addressed this specific issue, but the First Circuit did in Whallon v. Lynn, 230 F.3d 450,
455 (1st Cir. 2000). In discussing the doctrine of patria potestas in general, and as applied
by the Baja California Sur Civil Code in particular, the First Circuit concluded that rights
conferred on a parent by patria potestas are rights of custody rather than mere rights of
access. Whallon, 230 F.3d at 458. The Seaman court therefore concluded that patria
potestas conferred custody rights to the petitioner and that those rights had not ceased, nor
had they been terminated or suspended. Thus, the Seaman court concluded that the
respondent violated the petitioner's rights of custody.
In this case, J.V.O. is Petitioner’s biological child. Petitioner and Respondent were
married and lived together in Toluca, Mexico at the time of removal. There is no indication

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that there was any divorce or custody proceeding pending prior to J.V.O.’s removal.
Accordingly, there is no judicial determination or agreement regarding custody to guide
the court. Therefore, Petitioner has to establish that he has custody “by operation of law.”
Petitioner provided a copy of the Civil Code of the State of Mexico 1 (the “Civil Code”).
The Civil Code states the following regarding parental authority/responsibility
(patria potestas): it is exerted over non-emancipated minor children; it includes the legal
representation of the minor, the wholesome protection of the minor in a physical, moral
and psychological sense, his or her care and custody, the administration of his or her assets
and the right to discipline. Arts. 4.202, 4.203. Further, “[p]arental authority/responsibility
(patria potestas) over the children will be entered in the following order: By the mother
and father….,” Art. 4.204; and “[i]n case of separation of those exerting parental
authority/responsibility (patria potestas) and as long as there is no agreement on the
custody of the minor children, the judge will rule on the matter, always considering the
best interest of the minor.” Art. 4.205. The Civil Code provides that the parental
authority/responsibility ceases under the following circumstances: death of the person who
exerts it; emancipation of the minor; marriage of the minor; simple adoption, judicial order
or when the child reaches the age in which he or she is no longer legally a minor.

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Article 14 of the Convention allows a court, “[i]n ascertaining whether there has been a
wrongful removal ... within the meaning of Article 3, ... [to] take notice directly of the law of ...
the State of the habitual residence of the child, without recourse to the specific procedures for
proof of that law ... which would otherwise be applicable.” Additionally, under ICARA, “no
authentication of ... [documents or information included with a petition under the Convention]
shall be required in order for the ... document[ ] or information ... to be admissible in court.” 42
U.S.C. § 11605. See also Seaman, 762 F. Supp. 2d at 1379, n. 16.

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Petitioner has established that he had a custody right to J.V.O. by operation of law
under the doctrine of patria potestas. See Seaman, 762 F. Supp. 2d at 1379. See also
Lopez v. Alcala, 547 F. Supp. 2d 1255, 1258 (M.D. Fla. 2008) (divorced parents who shared
physical custody prior to removal established prima facie case for wrongful removal from
Mexico.); Ramirez v. Buyauskas, No. CIV.A. 11-6411, 2012 WL 606746, at *12 (E.D. Pa.
Feb. 24, 2012) amended, No. CIV.A. 11-6411, 2012 WL 699458 (E.D. Pa. Mar. 2, 2012)
(noting that “[c]ustody law in Mexico is based on the concept of ‘patria potestas’ ” and
concluding that petitioner had custody rights since he was the biological father and none
of the three exceptions - cessation, termination or suspension - applied to him). The
Respondent presented no evidence that Petitioner’s custody rights ceased.
The Court finds that Petitioner had custody rights to J.V.O. at the time of removal
and that the Respondent’s removal of J.V.O. from Mexico to the United States was in
violation of Petitioner’s custody rights under Mexican law.
c. Petitioner’s Exercise of Custody Rights at Time of Removal
The Court must further determine whether the petitioner exercised his custody
rights. Courts “liberally find exercise whenever a parent with de jure custody rights keeps,
or seeks to keep, any sort of regular contact with his or her child.” Seaman, 762 F. Supp.
2d at 1379. “Under this approach, ‘a person [who] has valid custody rights to a child under
the law of the country of the child's habitual residence ... cannot fail to ‘exercise’ those
custody rights under the Hague Convention short of acts that constitute clear and
unequivocal abandonment of the child.’ ” Id. (quoting Friedrich, 78 F.3d at 1066).
“Further, ‘[o]nce it determines the parent exercised custody rights in any manner, the court

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should stop—completely avoiding the question whether the parent exercised the custody
rights well or badly.’ ” Id. (quoting Friedrich, 78 F.3d at 1066). The Court finds that
Petitioner was exercising his custody rights at the time of the removal. Consequently,
Respondent’s removal was “wrongful.”
d. Respondent’s Affirmative Defense
Respondent asserts that there is a grave risk of physical or psychological harm to
J.V.O. if he is returned to Mexico. She asserts that she fears for her life if she returns to
Mexico, that the Petitioner’s residence is in a dangerous neighborhood with active drug
activity, one of his nephews is a drug addict who consumes drugs outside of the home, and
that Petitioner is very controlling and would not allow her to leave the home without an
escort.
This defense requires the alleged physical or psychological harm to be “a great deal
more than minimal.” See Whallon, 230 F.3d at 459 (quoting Walsh v. Walsh, 221 F.3d 204,
218 (1st Cir. 2000)). Only severe potential harm to the child will support this defense. See
Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 377 (8th Cir. 1995). The harm must be
greater than what is normally expected when taking a child away from one parent and
passing the child to another parent. Whallon, 230 F.3d at 459.
The Court finds that the Respondent has not met her burden by clear and convincing
evidence that a grave risk of harm to J.V.O. exists. Respondent’s claims are too vague and
generalized to support this affirmative defense.

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Conclusion
The Court concludes that Petitioner has established that J.V.O.’s habitual residence
prior to removal was in Mexico, and that he has custody rights to J.V.O. which he was
exercising at the time of the removal. Therefore, Respondent’s removal of J.V.O. from
Mexico without Petitioner’s knowledge or consent was wrongful as defined by the
Convention and ICARA. Respondent has not met her burden to prove by clear and
convincing evidence that there is a grave risk of psychological or physical harm to the
child. Therefore, Petitioner is entitled to a return of J.V.O. forthwith.
It is therefore ORDERED AND ADJUDGED that:
1.

The minor child, J.V.O. shall be returned to Mexico.

2.

The minor child, J.V.O. shall be accompanied by an officer from the Mexican
Consulate during his return to Mexico.

3.

Petitioner’s counsel shall notify the Court once J.V.O.’s return is complete.

4.

The Respondent, Ayliem Orihuela Castillo, may accompany J.V.O. and the
consular officers to Mexico, if she chooses, at her own expense.

5.

The Clerk of Court shall retain Respondent’s and J.V.O.’s travel documents
until further order from this Court.

6.

The Clerk of Court is directed to close this case and terminate any pending
motions as moot.

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7.

The Court reserves jurisdiction to determine costs, fees, and expenses
pursuant to 42 U.S.C. § 11607.

DONE and ORDERED in Tampa, Florida, this 5th day of December, 2014.

Copies furnished to:
Counsel/Parties of Record
S:\Odd\2014\14-cv-2407 order.docx

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