Aguilar Mendoza v. Silva
Filing
33
MEMORANDUM OPINION AND ORDER Regarding Plaintiff's Petition For Return of Children Pursuant to the Convention on Civil Aspects of International Child Abduction (The 1980 Hague Convention) and the International Child Abduction Remedies Act (ICARA ), 42 U.S.C. §§ 11601-11610. The minor children shall be transferred to the custody of Ms Mendoza by Mr Medina (See Order Text). Clerk of Court shall retain the passports and travel documents of the minor children until and unless I grant a motion by Mr Medina to obtain these documents to allow him to comply with the order for return of the children to the custody of Ms Mendoza. Signed by Judge Mark W Bennett on 12/10/2013. (des)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
MARIA GUADALUPE AGUILAR
MENDOZA,
Plaintiff,
vs.
MOISES MEDINA SILVA,
Defendant.
No. C 13-4108-MWB
MEMORANDUM OPINION AND
ORDER REGARDING PLAINTIFF’S
PETITION FOR RETURN OF
CHILDREN PURSUANT TO THE
CONVENTION ON CIVIL ASPECTS
OF INTERNATIONAL CHILD
ABDUCTION (THE 1980 HAGUE
CONVENTION) AND THE
INTERNATIONAL CHILD
ABDUCTION REMEDIES ACT
(ICARA), 42 U.S.C. §§ 11601-11610
___________________________
TABLE OF CONTENTS
I.
INTRODUCTION........................................................................... 3
A.
Procedural Background ........................................................... 3
1.
Ms. Mendoza’s verified complaint ...................................... 4
2.
The temporary restraining order ........................................ 4
3.
The motion to continue.................................................... 5
4.
The consolidated trial and preliminary injunction
hearing ....................................................................... 7
B.
Initial Findings Of Fact ......................................................... 10
1.
The parties’ marriage and the births of their
children..................................................................... 10
2.
Living arrangements and visits to the United States ............... 11
3.
Separation of the parties ................................................ 13
4.
The allegedly wrongful retention of the children .................. 14
5.
Circumstances after February 2, 2013 ............................... 18
II.
LEGAL ANALYSIS, INCLUDING SOME ADDITIONAL
FINDINGS OF FACT.................................................................... 20
Overview Of The Convention And The ICARA ............................. 20
1.
The requesting party’s burden ......................................... 23
2.
The resisting party’s affirmative defenses ........................... 24
Ms. Mendoza’s Case ............................................................. 26
1.
The date of the retention ................................................ 26
2.
The children’s “habitual residence” .................................. 27
3.
“Wrongful” retention.................................................... 32
4.
Summary ................................................................... 35
Mr. Medina’s Affirmative Defenses........................................... 35
1.
Various affirmative defenses under Articles 12, 13a
and unnumbered paragraphs, and 20 ................................ 36
2.
“Consent or acquiescence” under Article 13a ...................... 38
3.
Summary ................................................................... 41
Mr. Medina’s Request For A Delay In The Return Of The
Children ............................................................................ 41
A.
B.
C.
D.
III.
CONCLUSION ............................................................................ 45
P
laintiff Maria Guadalupe Aguilar Mendoza, a citizen of Mexico, filed this
action pursuant to the Convention On Civil Aspects Of International Child
Abduction (the 1980 Hague Convention or the Convention) and the International Child
Abduction Remedies Act (ICARA), 42 U.S.C. §§ 11601-11610, to secure the return of
her daughters, five-year-old K.G.M.A. and four-year-old M.K.M.A., whom
Ms. Mendoza alleges were, without her consent or acquiescence, wrongfully retained in
the Northern District of Iowa, away from their habitual residence in Mexico, by the
2
children’s father, defendant Moises Medina Silva. I previously enjoined Mr. Medina
from removing the children from the jurisdiction of this court and to surrender the
children’s passports and travel documents to the Clerk of Court to maintain the status
quo pending resolution of this case on the merits. I also set an expedited, consolidated
trial on the merits and preliminary injunction hearing for November 18, 2013. Because
of the amount of evidence that the parties wished to present and other circumstances,
the consolidated trial and preliminary injunction hearing was not completed until after a
second day of evidence on December 5, 2013. I enter this decision on the merits of
Ms. Mendoza’s Verified Complaint And Petition For Return Of Children (docket no. 6)
following that consolidated trial on the merits and preliminary injunction hearing.
I.
A.
INTRODUCTION
Procedural Background
Ms. Mendoza, who was often identified in these proceedings as “Lupita,”
“Lupe,” or “Guadalupe,” initiated this action on November 7, 2013, by filing her
Application To Proceed In Forma Pauperis (docket no. 2), her Motion Under The
Hague Convention For Entry Of A Temporary Restraining Order And Scheduling Of
An Expedited Hearing (Motion For Temporary Restraining Order) (docket no. 3), and
her Motion To File Documents Under Seal (docket no. 4), pertaining to exhibits
referred to in her Verified Complaint And Petition For Return Of Children (Verified
Complaint) (subsequently filed as docket no. 6).
By Order (docket no. 5), filed
November 7, 2013, I granted Ms. Mendoza in forma pauperis status, directed that her
Verified Complaint be filed without prepayment of fees, and directed that exhibits
referred to in her Verified Complaint be filed under seal.
3
1.
Ms. Mendoza’s verified complaint
In her Verified Complaint, Ms. Mendoza alleges that Mr. Medina’s retention of
K.G.M.A. and M.K.M.A. in the United States is wrongful within the meaning of
Article 3 of the 1980 Hague Convention, because it is in violation of her rights of
custody under Mexican law; that, at the time of the wrongful retention in the United
States, she was actually exercising her rights of custody within the meaning of Articles
3 and 5 of the Convention or that, but for Mr. Medina’s retention of the children, she
would have continued to exercise those rights; and that the children were habitually
resident with her in Mexico within the meaning of Article 3 of the Convention just
prior to their wrongful retention in the United States. She contends that K.G.M.A. and
M.K.M.A. are under the age of 16, so that the Convention applies to them, and that
she has filed her Verified Complaint within one year of Mr. Medina’s wrongful
retention of the children. In her Verified Complaint, Ms. Mendoza sought provisional
remedies pursuant to 42 U.S.C. § 11604 and Article 16 of the Convention that are
consistent with the remedies sought in her Motion For Temporary Restraining Order;
attorney’s fees and costs, including transportation costs, pursuant to 42 U.S.C.
§ 11607; an immediate temporary restraining order; an expedited preliminary injunction
hearing, consolidated with a trial on the merits, on why the relief sought in her Verified
Complaint should not be granted; a final judgment requiring the return of the children
to her custody in Mexico; an order requiring Mr. Medina to pay her expenses and
costs; and such further relief as may be just and appropriate under the circumstances.
2.
The temporary restraining order
On November 7, 2013, I granted Ms. Mendoza’s Motion For Temporary
Restraining Order. Specifically, in a Temporary Restraining Order (docket no. 8),
issued ex parte, at 2:08 p.m. on November 7, 2013, I enjoined Mr. Medina from
removing K.G.M.A. and M.K.M.A. from the jurisdiction of this court pending final
4
disposition of the Verified Complaint and further order of the court, and I also enjoined
him to surrender the minor children’s passports and all other travel documents to the
Clerk of Court not later than 4:30 p.m. on the third business day after service of the
Temporary Restraining Order.
In the Temporary Restraining Order, I also set a
consolidated trial on the merits and hearing on Ms. Mendoza’s request for a
preliminary injunction for Monday, November 18, 2013, at which Mr. Medina was
directed to show cause why the children should not be returned to Mexico,
accompanied by Ms. Mendoza or her designee, and why the other relief requested in
the Verified Complaint should not be granted. I also directed Mr. Medina to provide
for and ensure the personal appearance at the consolidated trial and preliminary
injunction hearing of the minor children K.G.M.A. and M.K.M.A.1
The United States Marshals Service personally served Mr. Medina with
Ms. Mendoza’s Verified Complaint and my Temporary Restraining Order on
November 8, 2013. See Return of Service (Executed) (docket no. 10). Mr. Medina
surrendered the children’s passports and travel documents to the Clerk of Court, as
directed, shortly before 4:00 p.m. on Wednesday, November 13, 2013.
3.
The motion to continue
Counsel for Mr. Medina attempted to file an Appearance (docket no. 13) and a
Motion To Continue (docket no. 14) after regular business hours on November 14,
1
In the Temporary Restraining Order, I also appointed an interpreter for
Ms. Mendoza and noted that the interpreter’s compensation may be taxed as costs. I
also granted Ms. Mendoza’s request to appear at the consolidated trial and preliminary
injunction hearing via telephone or videoconferencing, if she was unable to obtain a
visa in time to attend these proceedings in person. Ms. Mendoza was not able to obtain
a visa, so that her appearance at the consolidated trial and preliminary injunction
hearing was via videoconference.
5
2013, but a problem with the electronic filing system prevented those filings, so counsel
forwarded courtesy copies to my chambers by e-mail.
Ms. Mendoza’s counsel
encountered the same problem with her attempt to file her Resistance To Defendant’s
Motion To Continue (docket no. 15) after regular business hours on November 14,
2013, so counsel for Ms. Mendoza also forwarded a courtesy copy of her Resistance to
my chambers by e-mail. All three documents were electronically filed on November
15, 2013.
By Text Order (docket no. 16), I set telephonic oral arguments on
Mr. Medina’s Motion To Continue for November 15, 2013.
Mr. Medina’s counsel sought a continuance on the ground that she could not
adequately prepare for the hearing on November 18, 2013, when she had not been
retained and had not had an opportunity to meet with Mr. Medina until November 14,
2013. At the oral arguments, however, Mr. Medina’s counsel had difficulty identifying
any relevant evidence that she might be prevented from presenting on Mr. Medina’s
behalf, if the hearing went ahead as scheduled.
Whether to grant or deny a motion to continue is reviewed for abuse of
discretion. See Vasquez v. Colores, 648 F.3d 648, 652 (8th Cir. 2011). In a case
pursuant to the 1980 Hague Convention and ICARA, the district court does not abuse
its discretion in denying a motion to continue in light of “the underlying
circumstances,” including the prejudice that a petitioning parent will suffer from
continued delay, and “the professed goal of expediency in Convention proceedings.”
Vasquez, 648 F.3d at 652. Mr. Medina was served with the Verified Complaint and
Temporary Restraining Order setting the consolidated trial and preliminary injunction
hearing ten days before the hearing date and, although that is a relatively short time, I
found that it was not unduly short in light of “the professed goal of expediency in
Convention Proceedings.” Id. On the other hand, I found that there was little risk of
flight or evasion of this action for return of the children, where Mr. Medina had
6
promptly responded to the Temporary Restraining Order by surrendering the children’s
passports and travel documents to the Clerk of Court, he and the children were living
with his parents, he is employed in this District, and the children are attending
preschool and school, respectively, in this District.
Ms. Mendoza’s counsel also
represented that mitigation of concerns about evasion of the proceedings reduced the
potential prejudice to Ms. Mendoza of a delay of the proceedings, particularly if
arrangements could be made for her to have telephone contact with her children while
these proceedings were pending.
Therefore, while I denied a continuance of the
November 18, 2013, consolidated trial and preliminary injunction hearing, I did leave
open the possibility that, if Mr. Medina made an adequate offer of proof that there was
relevant evidence that he would be able to offer in further proceedings, a second
“episode” of the consolidated trial and preliminary injunction hearing would be
scheduled for November 26, 2013.
Also, because any concerns that Mr. Medina might flee from the District with
the children had been substantially mitigated, and because I found it appropriate to
avoid any unnecessary disruption to the children’s current routine while this matter is
pending, I concluded that Mr. Medina would not be required to provide for the
presence of the children at the consolidated trial and preliminary injunction hearing,
although I did encourage the parties to work out arrangements for Ms. Mendoza to
have telephone contacts with the children. Similarly, where Ms. Mendoza’s counsel
represented that Ms. Mendoza’s designee would not be able to return the children to
Mexico immediately, if I ordered such relief, I also excused Ms. Mendoza’s designee
from attending the consolidated trial and preliminary injunction hearing.
4.
The consolidated trial and preliminary injunction hearing
At the consolidated trial on the merits and preliminary injunction hearing,
Ms. Mendoza appeared by videoconference and was represented by Jessica Jo Taylor of
7
Iowa Legal Aid in Des Moines, Iowa.
Mr. Medina appeared personally and was
represented by Elizabeth Rosenbaum from Sioux City, Iowa. I was very impressed
with both attorneys’ ability to marshal the evidence and to make a thorough and
effective presentation of that evidence in the limited time frame these expedited
proceedings required.
At the first day of the consolidated trial and preliminary injunction hearing on
November 18, 2013, Ms. Mendoza reoffered, and I admitted by agreement (or, in the
case of Exhibit G, over Mr. Medina’s objections), Exhibits A through V attached to
Ms. Mendoza’s Verified Complaint.
She also offered the testimony, via
videoconference from Mexico and through an interpreter, of Ms. Mendoza herself; Dr.
Juan Jose Garcia Nuche, who testified that he was one of the children’s physicians in
Mexico; Reyna Colecio Pantoja, the director of the preschool in Mexico attended by
one of the children; and Maria del Rosario Pantoja Cantera, the director of the daycare
in Mexico attended by the other child.
When it became clear, at the conclusion of the first day of the consolidated trial
and preliminary injunction hearing on November 18, 2013, that the parties had more
evidence to present, I set a second day of the consolidated trial and preliminary
injunction hearing for November 26, 2013. On November 22, 2013, however, with the
agreement of the parties, I entered an Order (docket no. 23) resetting the second day of
the consolidated trial and preliminary injunction hearing for December 5, 2013, in
order to accommodate a personal matter of considerable importance to counsel for one
of the parties.
On November 27, 2013, I entered an Order (docket no. 24) regarding possible
disposition after the second day of the consolidated trial and preliminary injunction
hearing. Specifically, I indicated in that Order that, contrary to my initial indications, I
would not rule from the bench, but would file a written ruling within days of the
8
conclusion of the consolidated trial and preliminary injunction hearing. I also explained
that, if I ordered the return of the children to Mexico, as requested by Ms. Mendoza, I
would not order their return immediately, but neither would I stay such an order
pending appeal. Rather, I would stay any order for return long enough for Mr. Medina
to file an appeal and to attempt to obtain a stay pending appeal from the Eighth Circuit
Courts of Appeals. I also explained that, even if I decided to grant Ms. Mendoza the
requested relief of return of the children to Mexico, I would not order the immediate
transfer of the children to the custody of Ms. Mendoza or her designee, nor was it
necessary for the children to be personally present at the conclusion of the consolidated
trial and preliminary injunction hearing or for Ms. Mendoza or her designee to be
personally present to take immediate custody of the children. I indicated that I would
continue the injunction on removal of the children from the jurisdiction of the court and
retention of their travel documents by the Clerk of Court and would also enjoin Mr.
Medina to permit reasonable telephone contact by Ms. Mendoza with the children
during the period of any stay or until this court or an appellate court ordered otherwise.
On the second day of the consolidated trial and preliminary injunction hearing on
December 5, 2013, Ms. Mendoza presented, again via videoconference from Mexico
and through an interpreter, the testimony of her mother, Silvia Aguilar Mendoza.
Mr. Medina offered, and I admitted with the agreement of the parties, his Exhibits 1
through 31 (some of which had been amended), and Ms. Mendoza offered, and I
admitted, supplemental Exhibits W, X, and Z. Mr. Medina offered the testimony of
his mother, Lucina Medina, in person, but through an interpreter, and his own
9
testimony in English. Ms. Mendoza then testified in rebuttal, again by videoconference
from Mexico and through an interpreter.2
B.
Initial Findings Of Fact
In these proceedings, I was not going to determine who was the better parent,
the custody of the children, or the best interests of the children, so that the most
important evidence here was not necessarily the same as the most important evidence in
more common domestic relations litigation. Rather, as explained in more detail, below,
proceedings under the 1980 Hague Convention and the ICARA are “not designed to
resolve underlying custody disputes, but rather to ensure that such disputes are
adjudicated in the appropriate jurisdiction.” Acosta v. Acosta, 725 F.3d 868, 875 (8th
Cir. 2013) (internal citations omitted). Consequently, I set forth here only the facts that
I find are most relevant to the determination of issues properly before me or necessary
to put those issues in context.
1.
The parties’ marriage and the births of their children
I find that the parties were married on September 15, 2006, in Celaya,
Guanajuato, Mexico.
At the time, Ms. Mendoza was a Mexican citizen, but
Mr. Medina had been living in the United States since he was about five years old, he
had been a naturalized United States citizen since September 17, 2004, and he had met
Ms. Mendoza while on vacation in Mexico. Mr. Medina has lived in Storm Lake,
Iowa, with his parents, for most of the last 25 years, his father has been employed there
that entire time, and Mr. Medina has also been employed there for several years.
2
The interpreters also translated proceedings in English for Ms. Mendoza at
both days of the consolidated trial and preliminary injunction hearing.
10
Ms. Mendoza gave birth to the parties’ first child, K.G.M.A., a daughter, in
2007, and their second child, M.K.M.A., also a daughter, in 2009, both in Celaya,
Guanajuato, Mexico. The parties have a third daughter, K.V.M.A., who was born in
2011, but who has remained in the custody of Ms. Mendoza in Mexico. The parties’
two older children are United States citizens, because their parents obtained a Consular
Report of Birth Abroad for each of them from the United States Consulate in Mexico,
but the parties did not obtain a Consular Report of Birth Abroad for their youngest
child, K.V.M.A., and that child has remained in Mexico at all times. Mr. Medina
never attempted to obtain papers for Ms. Mendoza to enter the United States as his
wife. Mr. Medina explained that he had not done so, because he thought he should not
be hasty about doing so, where he had heard rumors that his wife was a golddigger—
notwithstanding that he had three children with her over five years. Ms. Mendoza
testified that Mr. Medina had not done so in order to control her and to make it difficult
for her to keep or contest custody of the children if they ever visited him in the United
States.
2.
Living arrangements and visits to the United States
After the parties married in 2006, Mr. Medina lived primarily in the United
States. More specifically, he would live in the United States for about six months at a
time, he would visit Ms. Mendoza and the children in Mexico for about two months,
then he would return to the United States alone for another lengthy period. During
Mr. Medina’s visits to and absences from Mexico, the children consistently lived with
Ms. Mendoza in Mexico. During almost the entire time after of the parties’ marriage,
Ms. Mendoza lived with Ms. Mendoza’s mother in her mother’s house, although
Ms. Mendoza paid rent to her mother. After the parties’ children were born, they also
lived with Ms. Mendoza and her mother when they were in Mexico. After M.K.M.A.
was born, both of the older children attended daycare and preschool in Mexico and
11
received regular medical care there. K.G.M.A. was also registered for and assigned to
an elementary school in Celaya.
Ms. Mendoza alleged in her Verified Complaint that, until their allegedly
wrongful retention in the United States, K.G.M.A. and M.K.M.A. had lived in the
familial residence in San Juan de la Vega, Guanajuato, Mexico, and had left Mexico
only once, for a pre-arranged visit with their father in the United States in 2011, shortly
after the parties’ third child was born.
At the consolidated trial and preliminary
injunction hearing, however, Ms. Mendoza admitted that she had visited Mr. Medina in
Storm Lake, Iowa, from April 2009 through July 2009, with the parties’ oldest
daughter and while pregnant with their second daughter. She testified, and Mr. Medina
did not dispute, that Mr. Medina arranged for Ms. Mendoza and K.G.M.A. to cross
into the United States illegally. I also find that, in July 2009, Ms. Mendoza told Mr.
Medina that she was going for a walk with K.G.M.A., but she actually returned to
Mexico without his knowledge. Ms. Mendoza explained that she had left the United
States because she was uncomfortable with Mr. Medina and his mother and had argued
with them.
Although K.G.M.A. had visited the United States illegally in 2009, her only
other visit to the United States prior to December 2012, and M.K.M.A.’s only visit to
the United States prior to December 2012, had been for a pre-arranged visit with their
father in the United States in 2011, shortly after the parties’ third child was born.
Ms. Mendoza alleges that, on that occasion, although the parties had agreed that
K.G.M.A. and M.K.M.A. would only stay with Mr. Medina for two months,
Mr. Medina kept the children in the United States, over Ms. Mendoza’s objections, for
eleven months. Mr. Medina disputes that he kept the children longer than the parties
had agreed.
12
3.
Separation of the parties
The parties separated permanently in July 2012. Ms. Mendoza testified that the
separation came after Mr. Medina assaulted her. Ms. Mendoza and her mother, with
whom Ms. Mendoza and the children were still living, told Mr. Medina that he had to
leave because of the domestic abuse. Indeed, Ms. Mendoza testified that, prior to their
separation, Mr. Medina assaulted her on a regular basis. Mr. Medina did not dispute
the separation, but asserted that Ms. Mendoza’s definition of “assault” was simply
raising his voice. On August 22, 2012, Ms. Mendoza’s mother reported to the Office
of the Public Prosecutor of Guanajuato that Mr. Medina had assaulted her.
See
Verified Complaint, Exhibit Q (identifying Silvia Aguilar Mendoza as the “injured
party,” and the date as August 22, 2012, notwithstanding that the Verified Complaint,
¶ 14, suggests that the report by the mother was in July 2012). Mr. Medina left the
familial home in July 2012, but initially stayed in Mexico, prior to returning to the
United States in September 2012.
There is no divorce decree or separation decree in the record, nor is there any
written or judicially endorsed child custody agreement or decree. Rather, the only
divorce proceeding initiated by either party was one filed by Mr. Medina in the Iowa
District Court for Buena Vista County. Mr. Medina’s Petition For Dissolution Of
Marriage was filed on November 15, 2013, notwithstanding that Mr. Medina’s counsel
had sought a continuance of the November 18, 2013, consolidated trial and preliminary
injunction hearing in this matter, based on her representation that she did not have
enough time to prepare for the consolidated trial and preliminary injunction hearing.
Mr. Medina’s counsel admitted at the first day of the consolidated trial and preliminary
injunction hearing that she had “felt that it was important to have another piece of
evidence to show that it was [her] client’s position that Iowa was the home state and
13
thus establishing jurisdiction in Buena Vista County.”
Real Time Transcript from
November 18, 2013, at 9:03 a.m.
4.
The allegedly wrongful retention of the children
The factual matters that are really the crux of this case relate to Mr. Medina’s
allegedly wrongful retention of K.G.M.A. and M.K.M.A. in the United States after
they came here to visit him in December 2012.
Mr. Medina asserted that
Ms. Mendoza had contacted him and demanded that he take the children, because she
no longer loved them or wished to care for them. The only circumstantial evidence that
Mr. Medina offered in support of this position were some text messages that the parties
do not dispute that Ms. Mendoza sent to Mr. Medina on May 12, 2012, although the
parties do dispute both the significance and the translation of these text messages.
These text messages are shown below, with Mr. Medina’s own translation, as offered
in his Exhibit 13, on the left, and a translation for Ms. Mendoza, as offered in her
Exhibit X, on the right:
Date/Time
Sender
5/12/12,
Ms. Mendoza:
11:48 a.m.
Ms. Mendoza:
5/12/12,
3:00 p.m.
5/12/12,
9:36 p.m.
Ms. Mendoza:
Translation by Mr. Medina
“Did you call me?”
Translation for Ms. Mendoza
“Did you call me?”
“I don’t love your daughters
you can come get them
whenever you want here they
are I am fed up with them
and sick of them.”
“Hey love I am going inside
in 20 min”
“I don’t want your girls when
you want to come and get them
here they are I am fed up with
this shit and I am tired.”
“Hey love I am going inside in
20 . . . .” [cuts off]
Mr. Medina testified that he and Ms. Mendoza thereafter arranged for the two older
girls to come to the United States permanently, beginning in December 2012.
In
contrast, Ms. Mendoza describes the text messages as a momentary venting of
frustration, but that she never agreed nor wanted the children to go to the United States
permanently. I do not find that these text messages, by themselves, constitute consent
14
by Ms. Mendoza to a permanent transfer of the two older children to the United States,
nor is there sufficient other evidence for me to conclude that Ms. Mendoza ever
consented to the permanent transfer of the children to Mr. Medina’s custody in the
United States.
What I do find is that the parties agreed that K.G.M.A. and M.K.M.A. would
visit Mr. Mendoza, starting in December 2012. The parties arranged to meet at the
border in Neuvo Laredo, Mexico, on December 18, 2012, and Mr. Medina sent
Ms. Mendoza money for bus fare for her and the two older children to make the
approximately twelve-hour bus trip to the border.
Prior to the children’s visit,
Ms. Mendoza arranged for their absences of approximately six weeks from daycare and
preschool, respectively, which I find demonstrates Ms. Mendoza’s intent and
understanding that the children were going for a visit of six weeks to two months, not
for a permanent transfer.
The parties vehemently dispute precisely what happened at the border on
December 18, 2012, and in the two days following. Ms. Mendoza contends that, when
Mr. Medina and his mother, Lucina Medina, arrived, they told Ms. Mendoza that
Mr. Medina planned to keep the children for at least six months, instead of returning
the children in six or eight weeks, as previously agreed, and that Ms. Mendoza
objected. Mr. Medina and his mother testified that there had been no prior agreement
for a short visit by the children; rather, the agreement was for the permanent transfer of
the two older children to the United States. They testified that Ms. Mendoza suddenly
reiterated her prior demands that Mr. Medina again take her across the border illegally,
as well as the children, this time so that Ms. Mendoza could go to Texas to be with a
man with whom she had struck up a relationship over the internet.
There is no dispute that a physical altercation between Ms. Mendoza and
Mrs. Medina occurred on December 18, 2013. The parties do not dispute that Mexican
15
federal police intervened and that Ms. Mendoza was detained overnight by the Second
Agency of the Public Ministry of Family Protection for assaulting Mr. Medina’s
mother. Ms. Mendoza later filed a formal complaint against Mr. Medina with the
Attorney General of the State of Tamaulipas, where the altercation occurred.
See
Verified Complaint, Exhibit R.
The parties agree that, with the assistance of Mexican government officials
and/or the police, they reached an agreement to resolve the dispute at the border, but
their versions of that agreement differ very substantially. Ms. Mendoza submitted, as
her Exhibit S, a Spanish transcript and an English translation of a mediation meeting
before an Agent of the Public Ministry, as a third-party conciliator, of the dispute
between Ms. Mendoza and Mr. Medina and his mother. Ms. Mendoza contends, and
the English translation of the mediation transcript reflects, that the parties agreed that
Mr. Medina would return the children at 7:00 p.m. on February 2, 2013, at the bus
station in Nuevo Laredo, and that both parties requested a certified copy of the hearing
transcript at the conclusion of the mediation. See Plaintiff’s Exhibit S. The Spanish
transcript of the mediation purports to bear the signatures of Lucina Medina,
Ms. Mendoza, and Mr. Medina, or two or more of them, in the margin of each page.
Id. Ms. Mendoza testified that the transcript reflects her understanding of the parties’
agreement.
Mr. Medina and his mother both testified, however, that the only agreement
reached with anyone was that Lucina Medina would drop the charges against
Ms. Mendoza arising from the altercation on December 18, 2012, and that Mr. Medina
and his mother would be allowed to take K.G.M.A. and M.K.M.A. to the United
States permanently, as previously agreed. Lucina Medina testified that what purports to
be her signature on Exhibit S is “the way [she] writes it.” Real Time Transcript,
December 5, 2013, at 9:57 a.m. She also testified, however, that she does not read or
16
write much Spanish or English, and that trying to read something as long as Exhibit S
would have given her a headache. She testified that, to the extent that anyone explained
any agreement to her, she understood that it was for her to drop the charges against
Ms. Mendoza and for her and Mr. Medina to take the children to the United States.
Mr. Medina admitted that what purports to be his mother’s signature on
Exhibit S is, in fact, his mother’s signature, but denied that what purports to be his
signature is, in fact, his signature. He also denied that there was ever any agreement
for the return of the children on February 2, 2013. He also testified that he was not a
party to any agreement and that the only agreement at the border was between his
mother and Ms. Mendoza to drop the charges against Ms. Mendoza, so that she would
not have to spend any time in prison and so that he and his mother could take the
children to the United States.
Mr. Medina also denied ever having read either
Exhibit S or the English translation of it prior to reading it while in the witness box on
the second day of the consolidated trial and preliminary injunction hearing on
December 5, 2012, notwithstanding that it was an exhibit that was served on him with
Ms. Mendoza’s Verified Complaint. When asked for an explanation of where Exhibit
S came from, Mr. Medina testified that he believed that Mexico is so corrupt that
anything could be obtained for the right amount of money. He and his mother also
asserted that the present proceedings are motivated by Ms. Mendoza’s desire for
revenge for his refusal to get Ms. Mendoza “papers” to enter the United States, or to
help her enter the United States illegally, so that she could join a man with whom she
had a relationship over the internet in Texas.
Notwithstanding the terms of the purported mediation agreement in Exhibit S,
Ms. Mendoza testified that when she called Mr. Medina to talk to the children in the
United States in January 2013, Mr. Medina told her that she should not bother showing
up to pick up the children on February 2, 2013.
17
Ms. Mendoza objected and told
Mr. Medina that she expected him to return the children as agreed. That telephone
conversation was the last contact that Ms. Mendoza had with Mr. Medina or her two
oldest children until these proceedings were initiated.
On February 2, 2013,
Ms. Mendoza arrived at the bus station in Nuevo Laredo and waited until 7:00 p.m.,
the time that the parties had agreed that the children would be returned, but
Mr. Medina did not arrive with the children.
5.
Circumstances after February 2, 2013
Mr. Medina also argues that, after he retained the children in the United States,
Ms. Mendoza acquiesced in his doing so. I do so find.
Specifically, Ms. Mendoza testified that, after her last call to Mr. Medina in
January 2013, he changed his telephone number and his address, because she was
unable to contact him or the children by telephone, and that she did not have any means
of contacting or locating the children, Mr. Medina, or Mr. Medina’s family.
She
contended that her attempts to contact Mr. Medina or the children by telephone, e-mail,
or “facebook” had been ignored by Mr. Medina. Mr. Medina admitted that he and his
parents had obtained a new telephone number in January 2013, which he had never
provided to Ms. Mendoza, and that he and his parents (with his children) moved to a
new address in Storm Lake, Iowa, in August 2013, which he admitted that he also had
never provided to Ms. Mendoza. He testified that he did not take any steps to convey
his new contact information to Ms. Mendoza, because he believed that she wanted
nothing to do with her children and that such conduct in a mother was unacceptable.
He also asserted that Ms. Mendoza could have found a way to contact him, including
by e-mail, if she had wanted to, because his father continued to be employed at the
same place in Storm Lake where he had been employed for 25 years, and Mr. Medina
himself continued to be employed at the same business in Storm Lake. He also testified
that Ms. Mendoza had had several telephone numbers and e-mail addresses before and
18
after the children came to him in the United States in December 2012, and that he did
not know which numbers or e-mail addresses were currently working. He admitted that
he had never tried to e-mail Ms. Mendoza after January 2013. He also suggested that
any e-mails that Ms. Mendoza might have sent him might have been filtered out as
“junk” by his e-mail service provider.
Ms. Mendoza testified that she had not received any calls from Mr. Mendoza
after the last call in January 2013.
Mr. Medina testified that he had called
Ms. Mendoza’s home phone number two or three times in January 2013, but had not
left a message, because Mexican telephones have caller ID, just like United States
telephones. He admitted that he had not tried to call her home telephone numbers since
January 2013. Although Mr. Medina testified that he thought that Ms. Mendoza could
contact him by e-mail, he then testified that he rarely checked his e-mail. Mr. Medina
also initially denied that he had a “facebook” page. When pressed by Ms. Mendoza’s
counsel, however, Mr. Medina admitted that he had had a “facebook” account, but had
taken it down after only a few months, because it didn’t interest him. He explained that
he thought of “facebook” only as “entertainment,” and that he was not sure if he had
deleted the account before or after these proceedings were initiated. When confronted
with Ms. Mendoza’s counsel’s assertions that she had downloaded images from his
“facebook” page in November of this year, after these proceedings had been initiated,
Mr. Medina admitted that he might not have deleted his “facebook” account until after
these proceedings were initiated, and he later volunteered that he had deleted that
account on the advice of counsel, notwithstanding that his counsel had objected to a
question about whether counsel had advised him to delete the page on the grounds of
attorney-client privilege.
Mr. Medina also admitted that he had not attempted to
arrange telephone or other contacts between his two daughters in the United States and
their younger sister, who is still in Mexico.
19
On March 6, 2013, Ms. Mendoza submitted a Request For Return Of Children
to the United States Department of State through the Mexican Central Authority, to
which she attached the mediation transcript from December 2012.
See Verified
Complaint, Exhibit T. She also attempted to obtain the assistance of a Mexican lawyer
to obtain the return of her children, but none agreed to assist her, and she was
ultimately directed by the United States State Department to Iowa Legal Aid for legal
assistance with this matter.
II.
LEGAL ANALYSIS, INCLUDING SOME ADDITIONAL
FINDINGS OF FACT
A.
Overview Of The Convention And The ICARA
The goal of the 1980 Hague Convention on the Civil Aspects of Child Abduction
is “‘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, as well as to secure protection for rights of access.’”
Vasquez v. Colores, 648 F.3d 648, 650 (8th Cir. 2011) (quoting Nunez–Escudero v.
Tice–Menley, 58 F.3d 374, 375 (8th Cir. 1995), in turn quoting the Convention,
Preamble). The Convention “accomplishes this goal not by establishing any substantive
law of custody, but rather by acting as a forum selection mechanism, operating on ‘the
principle that the child’s country of “habitual residence” is “best placed to decide upon
questions of custody and access.”’” Barzilay v. Barzilay, 600 F.3d 912, 916 (8th Cir.
2010) (Barzilay II) (quoting Villegas Duran v. Arribada Beaumont, 534 F.3d 142, 146
(2d Cir. 2008), in turn quoting Elisa Pérez-Vera, Explanatory Report, in 3 Hague
Conference on Private Int’l Law, Acts and Documents of the Fourteenth Session, Child
Abduction 426, 434-35 (1982)).
As the United States Supreme Court recently
explained, “The [1980] Hague Convention . . . generally requires courts in the United
20
States to order children returned to their countries of habitual residence, if the courts
find that the children have been wrongfully removed to or retained in the United
States.” Chafin v. Chafin, ___ U.S. ___, ___, 133 S. Ct. 1017, 1021 (2013); Acosta v.
Acosta, 725 F.3d 868, 875 (8th Cir. 2013). The United States ratified the treaty and
passed implementing legislation, known as the International Child Abduction Remedies
Act (ICARA), 42 U.S.C. §§ 11601-11610, in 1988. Id.
The Convention and the implementing legislation, however, are “not designed to
resolve underlying custody disputes, but rather to ensure that such disputes are
adjudicated in the appropriate jurisdiction.” Acosta, 725 F.3d at 875 (internal citations
omitted). Thus, the Convention’s “‘primary purpose is to restore the status quo and
deter parents from crossing international borders in search of a more sympathetic
court.”
Id. (quoting Nunez–Escudero v. Tice–Menley, 58 F.3d 374, 376 (8th Cir.
1995)); Barzilay II, 600 F.3d at 916-17 (“The purpose of proceedings under the Hague
Convention is thus not to establish or enforce custody rights, but only ‘to “provide for a
reasoned determination of where jurisdiction over a custody dispute is properly
placed.”’” (quoting Barzilay v. Barzilay, 536 F.3d 844, 85 (8th Cir. 2008) (Barzilay
I), in turn quoting Yang v. Tsui, 416 F.3d 199, 203 (3d Cir. 2005))).3
3
In Chafin, the United States Supreme Court explained the terms of the
Convention and the implementing act in somewhat more detail, as follows:
The Convention seeks “to secure the prompt return of
children wrongfully removed to or retained in any
Contracting State” and “to ensure that rights of custody and
of access under the law of one Contracting State are
effectively respected in the other Contracting States.” Art.
1, S. Treaty Doc. No. 99–11, at 7. Article 3 of the
Convention provides that the “removal or the retention of a
(Footnote continued . . .
21
child is to be considered wrongful” when “it is in breach of
rights of custody attributed to a person, an institution or any
other body, either jointly or alone, under the law of the State
in which the child was habitually resident immediately
before the removal or retention” and “at the time of removal
or retention those rights were actually exercised, either
jointly or alone, or would have been so exercised but for the
removal or retention.” Ibid.
Article 12 then states:
“Where a child has been wrongfully removed or
retained in terms of Article 3 and, at the date of the
commencement of the proceedings before the judicial
or administrative authority of the Contracting State
where the child is, a period of less than one year has
elapsed from the date of the wrongful removal or
retention, the authority concerned shall order the
return of the child forthwith.” Id., at 9.
. . . [T]he Convention directs Contracting States to
“designate a Central Authority to discharge the duties which
are imposed by the Convention.” Art. 6, id., at 8; see also
Art. 7, ibid.
Congress established procedures for implementing the
Convention in ICARA. See 42 U.S.C. § 11601(b)(1). The
Act grants federal and state courts concurrent jurisdiction
over actions arising under the Convention, § 11603(a), and
directs them to “decide the case in accordance with the
Convention,” § 11603(d). If those courts find children to
have been wrongfully removed or retained, the children “are
to be promptly returned.” § 11601(a)(4). ICARA also
provides that courts ordering children returned generally
must require defendants to pay various expenses incurred by
plaintiffs, including court costs, legal fees, and
transportation costs associated with the return of the
(Footnote continued . . .
22
1.
The requesting party’s burden
As the Eighth Circuit Court of Appeals has explained, “‘The key inquiry under
the Convention is whether a child has been wrongfully removed from the country of its
habitual residence or wrongfully retained in a country other than that of its habitual
residence.’” Barzilay II, 600 F.3d at 917 (quoting Barzilay [I], 536 F.3d at 847).
Consequently, the implementing legislation (ICARA) provides, in pertinent part, as
follows:
(e) Burdens of proof
(1) A petitioner in an action brought under subsection
(b) of this section shall establish by a preponderance
of the evidence—
(A) in the case of an action for the return of a
child, that the child has been wrongfully
removed or retained within the meaning of the
Convention; and
(B) in the case of an action for arrangements
for organizing or securing the effective
exercise of rights of access, that the petitioner
has such rights.
42 U.S.C. § 11603(e)(1).
children. § 11607(b)(3). ICARA instructs the President to
designate the U.S. Central Authority, § 11606(a), and the
President has designated the Office of Children’s Issues in
the State Department’s Bureau of Consular Affairs, 22 CFR
§ 94.2 (2012).
Chafin, ___ U.S. at ___, 133 S. Ct. at 1021-22.
23
It appears that Ms. Mendoza’s action falls within § 11603(e)(1)(A) as “an action
for the return of a child” based on “wrongful retention.” On a claim of wrongful
removal or retention,
in order to determine whether an ICARA petition merits
relief, “a court must ... [(1)] determine when the removal or
retention took place, [(2)] what the habitual residence of the
child was immediately prior to the removal, [(3)] whether
the removal or retention violated the petitioner’s custody
rights under the law of [the] habitual residence, and
[(4)] whether the petitioner was exercising those rights at the
time of the removal [or retention].” Barzilay [I], 536 F.3d at
847 (citing Mozes v. Mozes, 239 F.3d 1067, 1070 (9th Cir.
2001)). “Once it is determined that a child who was
habitually residing in a contracting state was wrongfully
removed to or retained in another, the Convention requires
that the country in which the child is located ‘order the
return of the child forthwith.’” Id. (quoting Hague
Convention art. 12).
Barzilay II, 600 F.3d at 917.
2.
The resisting party’s affirmative defenses
If the petitioning parent establishes the elements set out above, the responding
parent may assert one or more of the “narrow exception[s]” to the Convention’s
“general rule of return.” Acosta, 725 F.3d at 875. As the United States Supreme
Court has explained,
Return is not required if the parent seeking it was not
exercising custody rights at the time of removal or had
consented to removal, if there is a “grave risk” that return
will result in harm, if the child is mature and objects to
return, or if return would conflict with fundamental
principles of freedom and human rights in the state from
which return is requested. Arts. 13, 20, id., at 10, 11.
24
Chafin, ___ U.S. at ___, 133 S. Ct. at 1021. The Eighth Circuit Court of Appeals has
expressly identified the exceptions in Articles 12, 13, and 20 of the Convention,
referenced in 42 U.S.C. § 11603(e)(2) of ICARA, as “affirmative defenses to return.”
Rydder v. Rydder, 49 F.3d 369, 372 (8th Cir. 1995).
More specifically, as to burdens of proof on the responding party, ICARA
provides as follows:
(e) Burdens of proof
***
(2) In the case of an action for the return of a child, a
respondent who opposes the return of the child has
the burden of establishing—
(A) by clear and convincing evidence that one
of the exceptions set forth in article 13b or 20
of the Convention applies; and
(B) by a preponderance of the evidence that
any other exception set forth in article 12 or 13
of the Convention applies.
42 U.S.C. § 11603(e)(2).
Thus, a respondent may retain the children, if he or she proves, 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. 13b; Acosta, 725 F.3d at 875; or that the return
of the child “would not be permitted by the fundamental principles of the requested
State relating to the protection of human rights and fundamental freedoms,” id. at art.
20. A respondent may also retain the children, if he or she proves, by a preponderance
of the evidence, that “proceedings have been commenced after the expiration of the
period of one year [from the date of the wrongful removal or retention] [and] it is
demonstrated that the child is now settled in its new environment,” id. at art. 12; that
25
“the person . . . having the care of the person of the child was not actually exercising
the custody rights at the time of removal or retention, or had consented to or
subsequently acquiesced in the removal or retention,” id. at art. 13a; “that the child
objects to being returned and has attained an age and degree of maturity at which it is
appropriate to take account of its views,” id. at art 13 (unnumbered penultimate
paragraph); or that “information relating to the social background of the child provided
by the Central Authority or other competent authority of the child’s habitual residence”
demonstrates that return is not appropriate, id. at art. 13 (unnumbered final paragraph).
B.
Ms. Mendoza’s Case
As indicated above, to obtain relief on her Verified Complaint alleging that
Mr. Medina wrongfully retained K.G.M.A. and M.K.M.A. in the United States,
Ms. Mendoza must prove the following: (1) the date that the retention took place;
(2) that Mexico was the habitual residence of the child immediately prior to the
retention; (3) that the retention violated her custody rights under the law of the habitual
residence; and (4) that she was exercising those custody rights at the time of the
retention. Barzilay II, 600 F.3d at 917. I turn now to consideration of Ms. Mendoza’s
proof on these elements.
1.
The date of the retention
The first two elements are interrelated, because “[t]he first step in determining a
child’s habitual residence is to discern when the alleged wrongful removal or retention
took place, for ‘the text of the Convention directs courts to only one point in time in
determining habitual residence: the point in time “immediately before the removal or
retention.”‘” Barzilay II, 600 F.3d at 918 (quoting Silverman v. Silverman, 338 F.3d
886, 897 (8th Cir. 2003) (en banc), in turn quoting the 1980 Hague Convention, art.
3). Here, K.G.M.A. and M.K.M.A. were “removed” from Mexico to the United
26
States in December 2012, but I find that the date that is significant here is not the date
of their “removal” to the United States, but the date of their “retention” in the United
States. This is so, because the parties initially agreed that K.G.M.A. and M.K.M.A.
could visit Mr. Medina in the United States. On the other hand, I find that Mr. Medina
“retained” K.G.M.A. and M.K.M.A. in the United States when he did not return them
to Mexico on February 2, 2013, as the parties had agreed.
In arriving at this
conclusion, I have necessarily rejected the testimony of Mr. Medina and credited the
testimony of Ms. Mendoza, and I have necessarily accepted the authenticity of Exhibit
S, the transcript of the conciliation at the United States/Mexico border on December
18, 2012. I find that Exhibit S confirms Ms. Mendoza’s testimony that the parties had
an agreement for the return of the children to Mexico after a temporary stay in the
United States and undermines Mr. Medina’s testimony that the parties had an
agreement for a permanent transfer of the children to his custody in the United States.
Thus, the date of the “retention” here is February 2, 2013, when Ms. Mendoza was to
meet the children at the United States/Mexico border, but they did not appear as
Ms. Mendoza and Mr. Medina had agreed at the time of the children’s “removal” to
the United States.
2.
The children’s “habitual residence”
The second element, proof of the “habitual residence” of the child under the
1980 Hague Convention, “raises mixed questions of law and fact,” which the appellate
court reviews de novo, albeit deferring to the district court’s underlying factual
findings, unless they are clearly erroneous.
Barzilay II, 600 F.3d at 916.
Unfortunately, “[h]abitual residence was not defined in the Hague Convention, and
subsequent courts have had some difficulty in interpreting this term.” Sorenson v.
Sorenson, 559 F.3d 871, 873 (8th Cir. 2009).
27
The Eighth Circuit Court of Appeals has provided the following guidance,
however:
A person may have only one habitual residence, and it
should not be confused with domicile. [T]he court must
focus on the child, not the parents, and examine past
experience, not future intentions. Habitual residence may
only be altered by a change in geography and passage of
time.
Federal courts are agreed that “habitual residence”
must encompass some form of “settled purpose.” The settled
purpose need not be to stay in a new location forever, but
the family must have a “sufficient degree of continuity to be
properly described as settled.” Additionally, the settled
purpose must be from the child’s perspective, although
parental intent is also taken into account.
Silverman, 338 F.3d at 898 (citations omitted); see also Sorenson, 559 F.3d at 873
(quoting Silverman, 338 F.3d at 898).
determination of habitual residence:
Thus, various factors are relevant to the
“the settled purpose of the move to the new
country from the child’s perspective, parental intent regarding the move, the change in
geography, the passage of time, and the acclimatization of the child to the new
country.”
Barzilay II, 600 F.3d at 918 (internal quotation marks and citations
omitted).4
4
A somewhat more complete statement of the pertinent factors that district
courts should consider, from Silverman, is the following:
The court should have looked at the habitual
residence of the Silverman children at the time Julie
removed them from Israel, keeping in mind that they could
only have one habitual residence. The court should have
determined the degree of settled purpose from the children’s
(Footnote continued . . .
28
The Eighth Circuit Court of Appeals has upheld a determination that the country
where the children had lived for their whole lives or for a number of years immediately
before their removal or retention and where the children had attended school was the
children’s “habitual residence,” where there is no indication that the children had spent
any significant time in another country and the intent of the parents to stay in that
country or another country was uncertain or differed between the parents. Id. at 918.
Similarly, here, prior to their retention in the United States, K.G.M.A. and M.K.M.A.
had lived almost their entire lives in Mexico, with only one stay out of that country for
both M.K.M.A. and K.G.M.A.—a stay in the United States with Mr. Medina for
eleven months, which was longer than the two months that the parties had agreed that
visit would last—and a prior, illegal stay of four months in the United States by
K.G.M.A. Cf. id. This case may differ from Barzilay II because of these stays outside
of the asserted country of “habitual residence.” Nevertheless, it was clear that, even at
the time of these visits, from the perspective of the children and the parents,
K.G.M.A.’s first stay was a temporary, illegal visit, and the longer stay by both
children in the United States was also temporary—although Mr. Medina kept the
perspective, including the family’s change in geography
along with their personal possessions and pets, the passage
of time, the family abandoning its prior residence and selling
the house, the application for and securing of benefits only
available to [the new country’s] immigrants, the children’s
enrollment in school, and, to some degree, both parents’
intentions at the time of the move to [the new country].
Silverman, 338 F.3d at 898-99 (footnote omitted). Some of these factors are more
pertinent in a case like Silverman, in which the entire family had moved to a new
country, but one parent attempted to move the children back to the former country of
residence or to another country.
29
children longer than the parties had agreed. In both instances, the children ultimately
returned to Mexico for an extended period of time and, from their perspective, those
returns were to their habitual residence.
Furthermore, the children had attended daycare and preschool in Mexico, and
the older child was enrolled in an elementary school in Mexico. Id. Even if the
children have acquired personal possessions in the United States, there is no indication
that they abandoned all of their personal belongings or the familial residence in Mexico,
and it is clear that Ms. Mendoza intended that the children would continue to reside in
Mexico after their second visit to the United States, for example, from her actions in
obtaining permission to take the children out of daycare and preschool for only six
weeks to two months to accommodate their visit to the United States beginning in
December of 2012. Silverman, 338 F.3d at 898-99. Although Mr. Medina points out
that the children have been enrolled in daycare and/or school in the United States, and
are doing well there, that enrollment was after the date that they were “retained” in the
United States, so that it does not alter the conclusion that Mexico is the children’s
“habitual residence.” Barzilay II, 600 F.3d at 918 (explaining that “the text of the
Convention directs courts to only one point in time in determining habitual residence:
the point in time immediately before the removal or retention” (internal quotation
marks and citations omitted)).
A determination of “habitual residence” based on the factors identified in
Barzilay II is not overturned by consent judgments or agreements, either on the basis of
res judicata or contracts.
First, “‘federal courts adjudicating Hague Convention
petitions must accord full faith and credit only to the judgments of those state or federal
courts that actually adjudicated a Hague Convention claim in accordance with the
dictates of the Convention.’” Id. at 920 (quoting Holder v. Holder, 305 F.3d 854, 864
(9th Cir. 2002), in turn citing 42 U.S.C. § 11603(g)). Second, contractual agreements
30
concerning “habitual residence” are not determinative, because “determination of
habitual residence under the Hague Convention is a fact intensive inquiry particularly
sensitive to the perspective and circumstances of the child,” and parental stipulations
would render those factual considerations irrelevant and would be at odds with the basic
principles of the Convention, which reject “artificial jurisdictional links” as a means to
remove a child from the environment in which its life has developed. Id.
Thus, Mr. Medina’s attempt to establish that the parties had an agreement for the
permanent transfer of the children to the United States in December 2012, which he
asserts was reached after Ms. Mendoza’s text messages in May 2012 and in subsequent
conversations—even if I found his testimony credible on this point, which I do not—
would not establish that the United States was the children’s “habitual residence.” By
the same token, it is not enough for Ms. Mendoza to point to the parties’ agreement in
the mediation at the United States/Mexico border in December 2012 concerning the
length of the children’s stay with Mr. Medina in the United States to establish that
Mexico was the children’s “habitual residence” prior to their retention in the United
States. Also, the lack of any specific custody decree or agreement in Mexican divorce
or separation proceedings placing the children in Ms. Mendoza’s custody after the
parties separated does not weigh against a determination that, from the children’s
perspective, Mexico was the children’s “habitual residence” prior to their retention in
the United States.
Mr. Medina argued that the United States is the children’s “habitual residence”
because the amount of time that the children have spent here is a substantial part of
their lives. Mr. Medina clearly cannot rely on the length of the children’s stay in the
United States after their allegedly wrongful retention on February 2, 2013, as
establishing that the United States is their “habitual residence.” See Barzilay II, 600
F.3d at 918 (“[T]he text of the Convention directs courts to only one point in time in
31
determining habitual residence: the point in time immediately before the removal or
retention.” (internal quotation marks and citations omitted)). While both children had
undeniably spent a significant part of their young lives in the United States, even before
February 2, 2013, I found, above, that both of K.G.M.A.’s prior stays and
M.K.M.A.’s only prior stay in the United States were intended by the parties to be
temporary and, from the children’s perspective, their return to Mexico after those visits
was a return to their habitual residence. Also, because I have found that Mr. Medina
kept the children longer than the parties had agreed during their 2011 visit, I think that
the length of that visit must be discounted (though not entirely disregarded) as an
indication of the children’s “habitual residence.” See id. (considering that the intent of
the parents to stay in one country or another country was uncertain or differed between
the parents).
I find that Mexico was the children’s “habitual residence” prior to their allegedly
wrongful retention in the United States on February 2, 2013.
3.
“Wrongful” retention
The third and fourth elements that Ms. Mendoza must prove are that the
retention of the children violated her custody rights under the law of the habitual
residence, which I have determined is Mexico, and that she was exercising those rights
at the time of the retention. Barzilay II, 600 F.3d at 917. In other words, she must
prove that the retention of the children was “wrongful.” To put it another way,
The key inquiry under the Convention is whether a
child has been wrongfully removed from the country of its
habitual residence or wrongfully retained in a country other
than that of its habitual residence.
Barzilay I, 536 F.3d at 847.
“A retention or removal is wrongful only if it meets the requirements of Article
3 of the Convention.” Id. More specifically,
32
According to the Convention,
The removal or the retention of a child is to be
considered wrongful where:
(a) it is in breach of rights of custody attributed
to a person, an institution or any other body,
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 removal or retention those
rights were actually exercised, either jointly or
alone, or would have been so exercised but for
the removal or retention.
Hague Convention art. 3.
Barzilay II, 600 F.3d at 917. Pertinent regulations clarify the meaning of “wrongful
retention” as follows:
“Wrongful retention” refers to the act of keeping the child
without the consent of the person who was actually
exercising custody. The archetype of this conduct is the
refusal by the noncustodial parent to return a child at the
end of an authorized visitation period.
51 Fed.Reg. 10494 (emphasis added); see also Silverman, 338 F.3d at 898 (quoting this
regulation).
Here, Ms. Mendoza points out that Article 468 of the Civil Code of the State of
Guanajuanto, Mexico, states, in pertinent part, “Parental authority/responsibility
(patria potestas) over the children of a married couple is to be exerted jointly by the
mother and father.” See Verified Complaint, Exhibit U. She argues that Mr. Medina’s
retention of the children in the United States violated her “patria potestas” rights under
Mexican law, because the exercise of such rights by both parents requires that both
must consent to removal of a child to another country. She points out that the First
33
Circuit Court of Appeals recognized that a similar provision of the law of the State of
Baja California Sur established the rights of both parents to exercise authority over the
place where a child resides. See Whallon v. Lynn, 230 F.3d 450, 457-58 (1st Cir.
2000). She also points to Article 5 of the Convention, which states that rights of
custody “shall 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.”
1980 Hague
Convention, art. 5(a). I conclude that Mexican law afforded Ms. Mendoza a custody
right to determine where K.G.M.A. and M.K.M.A. reside at the time that the children
were “retained” by Mr. Medina in the United States.
The next question is whether Ms. Mendoza was exercising that custody right
“[a]t the time of . . . retention” or that her right “would have been so exercised but for
the . . . retention.” 1980 Hague Convention, art. 5(b); Barzilay II, 600 F.3d at 917.
Ms. Mendoza had been actually exercising her custodial rights over K.G.M.A. and
M.K.M.A. up until the time that they went to visit Mr. Medina in the United States in
December 2012; she disputed Mr. Medina’s attempt at a unilateral change in the length
of the children’s stay in the United States before the children were removed from
Mexico, and she obtained a mediated agreement for return of the children to Mexico on
February 2, 2013; she was at the United States/Mexico border at the designated time
for the children to be returned; and, but for Mr. Medina’s failure to return the children,
she would again be exercising parental rights as the person actually in sole custody of
the children.
Indeed, this case presents the “archetypical” case of “wrongful
retention,” because it involves “refusal by the noncustodial parent [Mr. Medina] to
return a child at the end of an authorized visitation period.”
51 Fed.Reg. 10494
(emphasis added); see also Silverman, 338 F.3d at 898 (quoting this regulation as
defining “wrongful retention”).
34
I find that retention of K.G.M.A. and M.K.M.A. by Mr. Medina in the United
States was in violation of Ms. Mendoza’s custody rights under Mexican law and that
she would have been exercising those custody rights over the children at the time of
their retention in the United States but for Mr. Medina’s retention of the children.
Consequently, I find that Mr. Medina’s retention of the children was “wrongful.”
4.
Summary
Because I find that that both K.G.M.A. and M.K.M.A., who were habitually
residing in Mexico, were wrongfully retained in the United States by Mr. Medina, the
Convention requires that the United States, the country in which the children are now
located, “order the return of the child forthwith,” see 1980 Hague Convention, art. 12;
Barzilay II, 600 F.3d at 917, unless Mr. Medina has proved one of the affirmative
defenses to return of the children. See Chafin, ___ U.S. at ___, 133 S. Ct. at 1021;
Acosta, 725 F.3d at 875.
C.
Mr. Medina’s Affirmative Defenses
Again, to overcome application of the “rule of return,” Mr. Medina must prove
one or more “affirmative defenses” defined in Articles 12, 13, and 20 of the
Convention, according to the burdens of proof established in 42 U.S.C. § 11603(e)(2).
See Chafin, ___ U.S. at ___, 133 S. Ct. at 1021; Acosta, 725 F.3d at 875; see also
Rydder, 49 F.3d at 372 (expressly identifying the exceptions in Articles 12, 13, and 20
of the Convention, and referenced in 42 U.S.C. § 11603(e)(2) of ICARA, as
“affirmative defenses to return”). Therefore, I will consider the affirmative defenses
that he has raised here.
35
1.
Various affirmative defenses under Articles 12, 13a and
unnumbered paragraphs, and 20
Most of the affirmative defenses set out in the Convention are inapplicable or
simply not colorable here. Mr. Medina’s counsel suggested that the “acclimatization”
of the children to the United States is an available affirmative defense here, or at least
is a factor in the “habitual residence” analysis.
See Barzilay II, 600 F.3d at 918
(considering “the acclimatization of the child to the new country” as a factor in the
“habitual residence” analysis).
I concluded, above, that the children were not
“acclimated” to the United States during their visits to the United States prior to their
wrongful retention on February 2, 2013, because, from their perspective, those visits
were temporary, and their return to Mexico after those visits was a return to their
“habitual residence.” Mr. Medina cannot rely on the “affirmative defense” that the
children are now “settled” in the United States, because these proceedings were
commenced less than a year from the date of wrongful retention, which makes an
affirmative defense “that the child is now settled in its new environment” unavailable.
See 1980 Hague Convention at art. 12 (defining an affirmative defense where
“proceedings have been commenced after the expiration of the period of one year [from
the date of the wrongful removal or retention] [and] it is demonstrated that the child is
now settled in its new environment” (emphasis added)).
Similarly, I also cannot decide this case based on a defense that the children
might prefer to stay in the United States—where Mr. Medina asserts that the children
do not want to return to Mexico—because the children—four and five years old,
respectively—however precocious they might be, are not of “an age and degree of
maturity at which it is appropriate to take account of [their] views.” See id. at art 13
(unnumbered
penultimate
paragraph).
Mr. Medina
specifically
argued
that
Ms. Mendoza was “not actually exercising the custody rights at the time of . . .
36
retention.”
See id. at art. 13a.
Specifically, he testified that he believed that
Ms. Mendoza paid other people to take care of the children and to take them to or from
preschool and daycare.
He has failed to prove this affirmative defense by the
applicable “preponderance of the evidence” standard, see 42 U.S.C. § 11603(e)(2) (the
defenses under Article 13a of the 1980 Hague Convention must be proved “by the
preponderance of the evidence”).
The record shows that Ms. Mendoza was the
primary person exercising custody rights during the parties’ marriage and after their
separation, while Mr. Medina spent long periods in the United States out of contact
with his children. Also, Mr. Medina has failed to convince me, by the preponderance
of the evidence, that Ms. Mendoza’s reliance on others to provide child care or to
transport the children to and from daycare or preschool is any different from the
conduct of any single parent who, out of necessity, works long hours at her business
and must rely on the assistance of others to take care of her children.
Mr. Medina has not offered any “information relating to the social background
of the child provided by the Central Authority or other competent authority of the
child’s habitual residence” demonstrating that return is not appropriate. See id. at art.
13 (unnumbered final paragraph).
Mr. Medina did not attempt to rely on an
“affirmative defense” 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.” Id. at art. 13b; Acosta, 725 F.3d at 875.5 Similarly, there has
5
Again, the inquiry on this affirmative defense is “narrow”:
[It] does not include an adjudication of the underlying
custody dispute, and only requires assessment of whether the
child will face immediate and substantial risk of an
intolerable situation if he is returned to [his home country]
(Footnote continued . . .
37
been, and can be, no argument that the return of the children to Mexico “would not be
permitted by the fundamental principles of the requested State [the United States]
relating to the protection of human rights and fundamental freedoms,” id. at art. 20.
Therefore, if return is to be denied, it must be on the basis of an Article 13a
defense of “consent or acquiescence.”
2.
“Consent or acquiescence” under Article 13a
Mr. Medina expressly asserted affirmative defenses of “consent” and
“acquiescence” pursuant to Article of the Convention and of ICARA. 1980 Hague
Convention, art. 13a (stating that one defense to return is that “the person . . . having
pending final determination of his parents’ custody dispute.
It is not relevant to this Convention exception who is the
better parent in the long run, or whether [one parent] had
good reason to leave her home ... and terminate her
marriage to [the other parent]....
Nunez–Escudero, 58 F.3d at 377 (as quoted and altered in Vasquez, 648 F.3d at 650).
Furthermore, this defense requires proof by clear and convincing evidence. 42 U.S.C.
§ 11603(e)(2). The Eighth Circuit Court of Appeals has explained that “[g]eneral
evidence of harm is insufficient to satisfy Article 13b,” but “[a] grave risk of harm may
exist in cases involving ‘serious abuse or neglect.’” Acosta, 725 F.3d at 875 (citing
Nunez-Escudero, 58 F.3d at 376, for the first principle, and Vasquez, 648 F.3d at 650,
for the second principle). More specifically, the Eighth Circuit Court of Appeals has
“recognized two types of grave risk that are cognizable under Article 13(b): cases in
which a child is sent to a zone of war, famine, or disease and those involving serious
abuse or neglect.” Vasquez, 648 F.3d at 650. Mr. Medina’s allegations that
Ms. Mendoza relies on others to provide much of the care of the children does not rise
to the level of “abuse or neglect,” and Mr. Medina has not alleged that Ms. Mendoza
has physically abused the children or that she poses a threat of such physical abuse to
the children, see Acosta, 725 F.3d at 876, although he has alleged that she has assaulted
him and his mother.
38
the care of the person of the child . . had consented to or subsequently acquiesced in the
removal or retention”).
He must prove these affirmative defenses by “the
preponderance of the evidence.” 42 U.S.C. § 11603(e)(2). As Mr. Medina suggests,
“consent” and “acquiescence” are separate affirmative defenses, where “consent”
involves an agreement to removal or retention before the removal or retention occurred,
and “acquiescence” is specifically identified in the 1980 Hague Convention as
“subsequent acquiescence,” that is, it considers agreement to the responding party’s
retention of the children after the retention occurred. See, e.g., Gonzalez-Caballero v.
Mena, 251 F.3d 789, 794 (9th Cir. 2001) (citing, inter alia, Friedrich v. Friedrich, 78
F.3d 1060, 1069 (6th Cir. 1996)). “Of course, conduct after removal can be useful in
determining whether consent was present at the time of removal.” Id.
I noted, above, in Section II.B.4., beginning on page 14, that the only
circumstantial evidence that Mr. Medina offered in support of a “consent” affirmative
defense were some text messages that the parties do not dispute that Ms. Mendoza sent
to Mr. Medina on May 12, 2012, although the parties do dispute both the significance
and the translation of these text messages, and I set out their differing translations,
above. I find credible Ms. Mendoza’s explanation of the text messages as a momentary
venting of frustration, and that they are not an indication that she ever agreed to or
wanted permanent transfer of the children to the United States. Moreover, I reiterate
my conclusion that these text messages, by themselves, do not constitute consent by
Ms. Mendoza, before the removal or retention of the children, to a permanent transfer
of the two older children to the United States, and that there is no other sufficient
evidence for me to conclude that Ms. Mendoza consented to the permanent transfer of
the children to Mr. Medina’s custody in the United States. Furthermore, I find from
Ms. Mendoza’s requests for permission to take the children out of daycare and
preschool for six weeks to two months to accommodate their visit to the United States
39
starting in December 2012; her insistence upon return of the children on February 2,
2013, during the conciliation meeting; her traveling to the agreed meeting place for
return of the children on February 2, 2013, notwithstanding Mr. Medina telling her not
to bother doing so; and her prompt attempt to engage the assistance of the United States
State Department in obtaining the return of the children, by filing a Request For Return
Of Children through the Mexican Central Authority on March 6, 2013, to which she
attached the mediation transcript from December 2012, all indicate that Ms. Mendoza
had not consented to a permanent transfer of the children to the United States. See
Gonzalez-Caballero, 251 F.3d at 794 (noting that “conduct after removal can be useful
in determining whether consent was present at the time of removal”).
Nor can I find that Mr. Medina has proved “acquiescence” by Ms. Mendoza
after the removal and retention of the children by the preponderance of the evidence.
Mr. Medina appeared to base his “acquiescence” affirmative defense on his contention
that Ms. Mendoza did not attempt to contact him or any of his family members after
January 2013. I find that the credibility of Mr. Medina’s contention that Ms. Mendoza
did not attempt to get in contact with him or the children or his family members after
he retained the children to be completely undermined by Ms. Mendoza’s evidence that
she made repeated attempts to call and e-mail Mr. Medina and that she did not have a
current telephone number or address for him or the children. Her testimony on this
point is confirmed by Mr. Medina’s own admissions that he changed his telephone
number in January 2013 without notifying Ms. Mendoza of the change; that he and his
family moved to a new address in Storm Lake in August 2013, again without notifying
Ms. Mendoza of his new address; his admission that he “rarely” looked at his e-mail or
his “facebook” page, after he asserted that they were adequate means for Ms. Mendoza
to contact him; and his unsubstantiated suggestion that Ms. Mendoza’s e-mails to him
might have been filtered into a “junk” file. I conclude that Mr. Medina simply cannot
40
rely on an “acquiescence” defense, where I find that the evidence shows that he
actively thwarted Ms. Mendoza’s attempts to contact him or the children. Moreover,
Ms. Mendoza’s protests at Mr. Medina’s statement that she need not bother to come to
the border on February 2, 2013, to get the children; her actually going to the border to
get the children on February 2, 2013, when they did not appear; her prompt efforts,
beginning March 6, 2013, to obtain return of the children by submitting a Request For
Return Of Children to the United States Department of State through the Mexican
Central Authority; her pursuit of legal assistance both in Mexico and in the United
States; and her prosecution of this action undermine Mr. Medina’s contention that
Ms. Mendoza simply “acquiesced,” after the fact, to his failure to return the children as
agreed on February 2, 2013, or his retention of the children thereafter in the United
States.
Therefore, I reject Mr. Medina’s “consent or acquiescence” affirmative defenses
to return of the children to Mexico.
3.
Summary
Because I find that Mr. Medina has not offered sufficient proof on any
affirmative defense, the “rule of return” is applicable here.
See 1980 Hague
Convention, art. 12; Chafin, ___ U.S. at ___, 133 S. Ct. at 1021; Acosta, 725 F.3d at
875; Barzilay II, 600 F.3d at 917.
D.
Mr. Medina’s Request For A Delay In The Return
Of The Children
Mr. Medina requested that, if I order return of the children, I at least stay their
return until after they have completed the school year, and that he be allowed to
accompany them to the border to return them to their mother. I construe Mr. Medina’s
first request as a request to stay any order for return of the children. As I noted,
41
above, in my November 27, 2013, Order (docket no. 24) regarding possible disposition
after the second day of trial and preliminary injunction hearing, I explained that, if I
ordered the return of the children to Mexico, as requested by Ms. Mendoza, I would
not order their return immediately, but neither would I stay such an order pending
appeal. Rather, I would stay any order for return long enough for Mr. Medina to file
an appeal and to attempt to obtain a stay pending appeal from the Eighth Circuit Court
of Appeals. I also explained that, even if I decided to grant Ms. Mendoza the requested
relief of return of the children to Mexico, I would not order the immediate transfer of
the children to the custody of Ms. Mendoza or her designee.
As to a stay pending appeal in an ICARA case, the United States Supreme Court
has explained that,
Courts should apply the four traditional stay factors in
considering whether to stay a return order [pursuant to
ICARA]: “‘(1) whether the stay applicant has made a strong
showing that he is likely to succeed on the merits;
(2) whether the applicant will be irreparably injured absent a
stay; (3) whether issuance of the stay will substantially
injure the other parties interested in the proceeding; and
(4) where the public interest lies.’” Nken v. Holder, 556
U.S. 418, 434, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009)
(quoting Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct.
2113, 95 L.Ed.2d 724 (1987)). In every case under the
Hague Convention, the well-being of a child is at stake;
application of the traditional stay factors ensures that each
case will receive the individualized treatment necessary for
appropriate consideration of the child’s best interest.
42
Chafin, ___ U.S. at ___, 133 S. Ct. at 1027.6
Here, I do not find that Mr. Medina has made a strong showing that he is likely
to succeed on the merits of an appeal of the order for return, even though I found this
to be a close case in some respects, because my ultimate decision was based on
credibility determinations.
Id. at (first element).
Moreover, I conclude that
Mr. Medina will not be irreparably injured absent a stay of the order for return. Id.
(second element).
As the Supreme Court suggested, albeit when considering
“mootness,” a responding party’s claim for relief on appeal consisting of an order for
“re-return,” whether “under the Convention itself or according to general equitable
principles” simply is not so “implausible” as to be nugatory.
Id. at 1024.
Furthermore, “even if [Mexico] were to ignore a U.S. re-return order [after a
successful appeal by Mr. Medina], or decline to assist in enforcing it,” United States
courts “continue to have personal jurisdiction over [Ms. Mendoza], may continue to
command her to take action even outside of the United States, and may back up any
such command with sanctions.” Id. Similarly, issuance of a stay would “substantially
injure the other parties interested in the proceeding,” id. at 1027 (third element),
because it could result in the children losing precious time when they could be
readjusting to life in Mexico. See id. Finally, the Convention and ICARA demonstrate
a public interest in expeditious resolution of petitions for return of children, “for the
sake of the children who find themselves in such an unfortunate situation.” Id. The
Supreme Court noted that an average case in American courts takes over two years
6
The Court has also held that the return of the children to their state of habitual
residence does not “moot” an appeal of the order for return. Id. at ___, 133 S. Ct. at
1025-26.
43
from filing to resolution, which is a significant portion of the lives of the four- and fiveyear-old children involved in this case. Id. at 1028. Thus, the pertinent factors weigh
against a stay pending appeal of the order for return in this case. Therefore, I will not
grant a stay of the order for return of the children pending appeal.
For many of the same reasons, I will not stay or delay an order of return until
the children complete the school year, as Mr. Medina has expressly requested. Again,
doing so would result in the children losing precious time when they could be
readjusting to life in Mexico and would be contrary to the public interest in expeditious
resolution of petitions for return of the children, for their sake. I reiterate that the only
delay in return of the children that I am willing to grant is a delay that is long enough
for Mr. Medina to file an appeal and to attempt to obtain a stay pending appeal from
the Eighth Circuit Court of Appeals. Therefore, I will delay the deadline for return of
the children for thirty days from the date of this order, subject to a motion by either
party requesting an additional extension for good cause.
I am more sympathetic to Mr. Medina’s request that he be allowed to take the
children to the United States/Mexico border to return them to Ms. Mendoza, rather
than some designee of Ms. Mendoza. I do not believe that it makes a difference,
legally, whether I order Mr. Mendoza to return the children to a designee of
Ms. Mendoza’s on a particular date, or order Mr. Medina himself to return the children
to Ms. Mendoza at the United States/Mexico border in Nuevo Laredo, Mexico. To the
limited extent that I am allowed to consider the best interests of the children at all in
these proceedings, I believe that the best interests of the children will be served by
allowing them to travel with their father, rather than a designee of Ms. Mendoza’s, who
is likely to be a stranger to them, to the point of transfer back to their “habitual
44
residence” in Mexico.7 Therefore, I will grant Mr. Medina’s request by ordering that
he return the children, at a date and time certain, to Ms. Mendoza’s custody at the
United States/Mexico border in Nuevo Laredo, Mexico.
III.
CONCLUSION
Upon consideration of all of the evidence presented at the consolidated trial and
preliminary injunction hearing, I conclude that Ms. Mendoza is entitled to return of
K.G.M.A. and M.K.M.A. to Mexico “forthwith.” 1980 Hague Convention, art. 12.
THEREFORE,
1.
The minor children, K.G.M.A. and M.K.M.A., shall be transferred to
the custody of Ms. Mendoza by Mr. Medina at the United States/Mexico border in
Nuevo Laredo, Mexico, not later than 12:00 p.m. (noon) on January 10, 2014, unless
this order of return is stayed pending appeal by the Eighth Circuit Court of Appeals. It
is apparent that the parties have had difficulty communicating effectively. Therefore, I
encourage the parties to find a workable channel of communications to coordinate the
transfer of the children, and if they have difficulties doing so, I request that counsel
make themselves available by telephone or e-mail to facilitate communications between
the parties and the transfer of the children.
2.
Mr. Medina is enjoined from removing the children from the jurisdiction
of this court and to permit reasonable telephone contact by Ms. Mendoza with the
children, and the Clerk of Court shall retain the passports and travel documents of
7
Indeed, while I am not to determine the best interests of the children, I can say
that, on the evidence presented in these proceedings, I have no doubt that Mr. Medina
is an excellent parent. I cannot say the same, with a similar degree of certainty, of
Ms. Mendoza.
45
K.G.M.A. and M.K.M.A., until and unless I grant a motion by Mr. Medina to obtain
the children’s passports and travel documents to allow him to comply with the order for
return of the children to the custody of Ms. Mendoza.
IT IS SO ORDERED.
DATED this 10th day of December, 2013.
______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA
46
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