Alvarez v. Magana Alvarez

Filing 41

MEMORANDUM AND ORDER RE: COMITY Granting 26 Motion in Limine with Incorporated Memorandum of Law Requesting Order According Comity to Mexico Hague Convention Proceedings ; Denying as Moot 2 Motion to Expedite Consideration of Verified Petition for Return of Children to Mexico and Issuance of Show Cause Order. Signed by Judge Marvin J. Garbis on 5/26/2017. (bas, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ENEDINA ALVAREZ

*

Plaintiff
vs.

* CIVIL ACTION NO. MJG-17-1010

JOSE CARMEN MAGANA ALVAREZ
Defendant
*

*

*

*
*

*
*
*
*
*
MEMORANDUM AND ORDER RE: COMITY

*

*

The Court has before it Petitioner’s Motion in Limine With
Incorporated Memorandum of Law Requesting Order According Comity
to Mexico Hague Convention Proceedings [ECF No. 26] and the
materials submitted relating thereto.

The Court finds that a

hearing is unnecessary.

I.

PROCEDURAL BACKGROUND
Petitioner, Enedina Alvarez (the “Petitioner” or “Mother”),

filed her Verified Petition for Return of the Children to Mexico
and Issuance of Show Cause Order [ECF No. 1] (“Petition for
Return”)1 on April 12, 2017 together with a Request for Expedited
Consideration of Petition for Return of Children to Mexico and
Issuance of Show Cause Order [ECF No. 2].
1

On April 13, 2017,

Pursuant to The Convention on the Civil Aspects of
International Child Abduction, done at The Hague
on October 25, 1980; International Child Abduction Remedies Act,
22 U.S.C. 9001 et seq. (the “Hague Convention”).

1

the Court issued an Order Requiring Respondent to Appear [ECF
No. 6], which ordered Respondent, Jose Carmen Magana Alvarez
(the “Respondent” or “Father”) to appear for an initial hearing
on April 27, 2017, and inter alia, to confirm that the children
are physically located within the jurisdiction of the Court and
to bring the children’s passports and other travel documents for
placement in the custody of the Court.
On April 20, 2017, this Court held a telephone conference
with counsel for the parties.

At that time, an evidentiary

hearing was scheduled to be held on May 30, 2017, and the Court
referred the case to a Magistrate Judge for confidential
mediation2 proceedings.

Initial Scheduling Order, ECF No. 13.

The Mother filed an Amended Verified Petition for Return of the
Children to Mexico [ECF No. 11] on April 20, 2017, which added a
request that this Court recognize and accord comity to the
Mexico trial court’s decision and the Mexico appellate court’s
decision.3

2

A telephone conference regarding settlement was held on
April 28, 2017, and a settlement conference is scheduled for
10:00 a.m. on Friday, May 26, 2017.
3
These decisions were issued in relation to the Father’s
Hague Convention Petition for Return filed in Mexico against the
Mother while the children were living with the Mother in Mexico.
The appellate decision affirmed a lower Mexico court order
finding that the Mother had not wrongfully retained the children
in Mexico, and that the Father had consented for the children to
live in Mexico with the Mother.

2

On April 26, 2017, the Court issued an Agreed Scheduling
Order [ECF No. 16] based upon the parties’ Consent Scheduling
Order [ECF No. 15].

It stated, in part:

1.
Petitioner, Enedina Alvarez (the
“Petitioner”), and Respondent, Jose Carmen
Magana Alvarez (the “Respondent”) are
prohibited from removing the minor children,
M.K.A., born in 2013, and A.S.A., born in
2015 (collectively the “minor children”), or
causing the minor children, to be removed
from this Court’s jurisdiction pending final
disposition of the Petitioner’s Amended
Verified Petition for Return of Children to
Mexico (Doc. No. 11) (“Petition for
Return”).
2.
Respondent promptly shall deliver the
minor children’s passports and travel
documents to the Clerk of the Court to be
held subject to further Order.
3.
Petitioner and Respondent shall appear
before this Court on the 30th day of May,
2017 at 10:00 a.m. in Courtroom 5C of the
United States District Court for the
District of Maryland, 101 W. Lombard Street,
Baltimore, Maryland 21201, for an
evidentiary hearing on the merits of the
Petition for Return.
Agreed Scheduling Order 1-2, ECF No. 16.4

As a result of the

parties’ agreement, the Initial Hearing scheduled for April 27,
2017 was cancelled.
With her Petition for Return, the Mother included a copy of
a Custody Agreement [ECF No. 1-1] dated January 6, 2016 and a

4

The children’s passports were surrendered to the Clerk of
the Court on May 26, 2017. See ECF Nos. 33, 34.

3

copy of the Mexico Appellate Court Decision [ECF No. 1-2] issued
September 7, 2016.5

The Father filed his Answer [ECF No. 21] on

May 10, 2017, denying that the Mother had legal custody over the
children and denying that the children had been wrongfully
removed from Mexico.

Answer ¶¶ 35-39, ECF No. 21.

In his

Answer, the Father did not specifically respond to each of the
Mother’s allegations nor did he include any response regarding
the Mexico Appellate Court Decision.
By the current Motion in Limine, the Mother requests this
Court to accord comity to the Mexico Hague Convention
Proceedings.

II.

DISCUSSION
A.

The Hague Convention6

“[T]he primary purpose of the Hague Convention is to
preserve the status quo and to deter parents from crossing
international boundaries in search of a more sympathetic court.”
Miller v. Miller, 240 F.3d 392, 398 (4th Cir. 2001) (citation
omitted).

The Hague Convention does not address the underlying

custody issues but rather the jurisdiction under which the
5

Both copies were translated from Spanish to English.
The United States ratified the Hague Convention in 1988,
and Mexico ratified it in 1991. Padilla v. Troxell, 850 F.3d
168, 178 n.5 (4th Cir. 2017). Congress implemented the Hague
Convention in 1988 through the International Child Abduction
Remedies Act (“ICARA”). 22 U.S.C. §§ 9001–9011.
6

4

custody issues will be decided. Id.; see also Holder v. Holder,
392 F.3d 1009, 1013 (9th Cir. 2004) “The Convention’s focus is
thus whether a child should be returned to a country for custody
proceedings and not what the outcome of those proceedings should
be.”).
Therefore, “the scope of a court’s inquiry under the Hague
Convention is limited to the merits of the abduction claim.”
Miller, 240 F.3d at 398 (citation omitted).

The Convention

attempts to remove the motivation for wrongful removals or
retention by requiring the country to which a child has been
removed or retained to return the child to his or her country of
habitual residence, absent the establishment of certain defenses
or exceptions. Asvesta v. Petroutsas, 580 F.3d 1000, 1004 (9th
Cir. 2009).

Accordingly, the initial question before the court

is whether the child was “wrongfully removed or retained within
the meaning of the Convention.”

Miller, 240 F.3d at 398

(citation omitted).
“Under Article 3, the removal or retention of a child is
wrongful when it breaches a person’s rights of custody ‘under
the law of the State in which the child was habitually
resident.’”

Smedley v. Smedley, 772 F.3d 184, 186 (4th Cir.

2014)(quoting Hague Convention Art. 3).

In the instant case,

the Mother must prove, by a preponderance of the evidence, that

5

(1) the children were “habitually resident” in Mexico at the
time of removal to the United States; (2) the removal by the
Father was in breach of the Mother’s custody rights under Mexico
law; and (3) the Mother had been exercising her custody rights
at the time of removal.

See Miller, 240 F.3d at 398.

Because

the Hague Convention does not define “habitual residence,”
United States federal courts determine it by the particular
facts in each case.

Id.

Courts will look at whether the

parents shared the intention to make a particular country the
child’s home, and whether sufficient time has passed for the
child to acclimatize to the residence.

Id.; see also Maxwell v.

Maxwell, 588 F.3d 245, 251 (4th Cir. 2009)(describing a two-part
framework to assist in the habitual residence analysis).
“Once a petitioner has shown a wrongful removal occurred,
the burden shifts to the respondent to establish that one of the
exceptions in the Convention ‘excuses return’ of the child.”
Padilla v. Troxell, 850 F.3d 168, 175 (4th Cir. 2017)(quoting
Lozano v. Montoya Alvarez, --- U.S. ----, 134 S. Ct. 1224, 1229
(2014)).

“Article 13 excuses return where, for example, the

left-behind parent was not ‘actually exercising’ custody rights
when the abducting parent removed the child, or where there is a
‘grave risk’ that return would ‘place the child in an

6

intolerable situation.’” Lozano, 134 S. Ct. 1229 (quoting Hague
Convention, Arts. 13(a)–(b)).

B.

International Comity and the Hague Convention

The Fourth Circuit has noted that “though foreign judgments
are not entitled to full faith and credit, comity is at the
heart of the Hague Convention.”

Smedley, 772 F.3d at 189

(quoting Miller, 240 F.3d at 400).

The United States Supreme

Court provides a description of comity with some guiding
principles:
No law has any effect, of its own
force, beyond the limits of the sovereignty
from which its authority is derived. The
extent to which the law of one nation, as
put in force within its territory, whether
by executive order, by legislative act, or
by judicial decree, shall be allowed to
operate within the dominion of another
nation, depends upon what our greatest
jurists have been content to call “the
comity of nations.” . . . .
“Comity,” in the legal sense, is
neither a matter of absolute obligation, on
the one hand, nor of mere courtesy and good
will, upon the other. But it is the
recognition which one nation allows within
its territory to the legislative, executive
or judicial acts of another nation, having
due regard both to international duty and
convenience, and to the rights of its own
citizens, or of other persons who are under
the protection of its laws.
. . . .

7

[W]here there has been opportunity for a
full and fair trial abroad before a court of
competent jurisdiction, conducting the trial
upon regular proceedings, after due citation
or voluntary appearance of the defendant,
and under a system of jurisprudence likely
to secure an impartial administration of
justice between the citizens of its own
country and those of other countries, and
there is nothing to show either prejudice in
the court, or in the system of laws under
which it was sitting, or fraud in procuring
the judgment, or any other special reason
why the comity of this nation should not
allow it full effect, the merits of the case
should not, in an action brought in this
country upon the judgment, be tried afresh,
as on a new trial or an appeal, upon the
mere assertion of the party that the
judgment was erroneous in law or in fact.
The defendants, therefore, cannot be
permitted, upon that general ground, to
contest the validity or the effect of the
judgment sued on.
Hilton v. Guyot, 159 U.S. 113, 163-64, 202-03 (1895).
Where comity is at issue, a court begins its analysis “with
an inclination to accord deference to” a foreign court’s
decision of a related Hague petition.
F.3d 133, 145 (2d Cir. 2001).

Diorinou v. Mezitis, 237

However, a court may decline to

extend comity if the foreign court “clearly misinterprets the
Hague Convention, contravenes the Convention’s fundamental
premises or objectives, or fails to meet a minimum standard of
reasonableness.”
F.3d at 1014).

Smedley, 772 F.3d at 189 (quoting Asvesta, 580

In Smedley, the Fourth Circuit found that the

district court had properly found the foreign court’s decision

8

was “at least minimally reasonable,”7 which was sufficient to
accord comity.

C.

Id. at 191.

The Mexico Hague Convention Proceedings

The Court initially8 had access only to the Mexico Appellate
Court Decision [ECF No. 1-2], which was attached to the Petition
for Return.

The decision, however, which affirms the lower

court finding, details the facts considered and the law applied.
There is nothing in the decision that would indicate that the
court either misinterpreted the Hague Convention or was
inconsistent with its fundamental premises and objectives.

The

Mexico courts found that the Father had consented to the
children remaining in Mexico.

Such a finding is supported by

the evidence, such as the custody agreement.
The Father notes that the custody agreement was intended to
be temporary and did not entitle the Mother to keep the children
in Mexico past the January 11, 2016 scheduled return to the
United States.

The Mexico court, however, considered this

argument in its decision.

The Mexico court determined that the

7

Finding that it was not necessary for the foreign court to
have made a specific determination of the child’s habitual
residence because the respondent had consented to the residence.
Smedley, 772 F.3d at 189-90.
8
It appears that Respondent attached a translation from the
trial court proceedings to his response. See Ex. A, ECF No. 311.

9

vacation circumstances had radically changed due to an episode
of violence between the Father and the Mother.

The Mexico court

further noted that since the Custody Agreement was signed on
January 6, 2016, and the parties had full knowledge of the
scheduled return date, if it was intended to end on that date,
they had the opportunity to so specify but did not.
Further, as noted by the Mother in her motion, the Mexico
trial court appointed a guardian ad litem for the children,
ordered psychological evaluations for the parties, and received
extensive testimony and evidence, including documents and
affidavits.

After considering all of the evidence, the Mexico

trial court found that the Mother did not wrongfully retain the
children in Mexico, and this finding was upheld after further
extensive analysis by the Mexico appellate court.

The finding

is certainly at least minimally reasonable.
Accordingly, this Court shall accord comity to the Mexico
Hague Convention Proceedings.

D.

Petition for Return

The Court’s deference to the Mexico Hague rulings that the
Mother did not wrongfully retain the children in Mexico does not
end the Court’s consideration of whether the Father’s removal of
the children from Mexico requires an order for their return.

10

Rather, the Court shall take into account the reasons for the
Mexico courts’ decisions when deciding the instant Petition for
Return.

There remains other evidence to be considered,

including the circumstances surrounding the Father’s removal of
the children from Mexico, and the Convention’s defenses and
exceptions.

The Court shall consider all material evidence to

be presented at the hearing on Tuesday, May 30, 2017 prior to
making an ultimate finding on the Petition for Return.

E.

Pending Motion for Expedited Consideration

Finally, there remains pending the Petitioner’s Request for
Expedited Consideration of Petition for Return of Children to
Mexico and Issuance of Show Cause Order [ECF No. 2].

Given the

parties agreed scheduling order and cancellation of the show
cause hearing, it appears this motion is now moot and shall be
denied as moot.

The Court shall continue to take all

appropriate measures to expedite resolution of this case.

III. CONCLUSION
For the foregoing reasons:
1.

Petitioner’s Motion in Limine With Incorporated
Memorandum of Law Requesting Order According
Comity to Mexico Hague Convention Proceedings
[ECF No. 26] is GRANTED.

11

2.

Petitioner’s Request for Expedited Consideration
of Petition for Return of Children to Mexico and
Issuance of Show Cause Order [ECF No. 2] is
DENIED AS MOOT.

SO ORDERED, this Friday, May 26, 2017.
/s/__________
Marvin J. Garbis
United States District Judge

12