Merchan Rocha v. Molano Florez

Filing 32

FINDINGS OF FACT, CONCLUSIONS OF LAW, and ORDER. Signed by Judge Robert C. Jones on 5/13/14. (Copies have been distributed pursuant to the NEF - MMM)

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IN THE UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
)
FRANCISCO JOSE MERCHAN ROCHA, )
)
Plaintiff,
) Case No.: 2:14-cv-00051
vs.
)
)
VERONICA MOLANO FLOREZ, AKA
)
GABRIELLE VERONICA MOLANO
)
FLOREZ,
)
)
Defendant.
)

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FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
THIS MATTER came before the Honorable Robert C. Jones, on February 12, 2014,

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at 1:30 p.m. on Plaintiff’s Motion for a Preliminary Injunction, and for a trial on the merits

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pertaining the return of the minor child, Sofia Merchan Molano (“SMM”). Present at the

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Hearing were Plaintiff, Francisco Jose Merchan Rocha, represented by his attorney of

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record, Emily McFarling, Esq. of McFarling Law Group. Also present was Maria Rios
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Landin, legal assistant to Emily McFarling. Defendant Veronica Molano Florez, nka

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Veronica Gabrielle, was present and represented by Christopher Ford, Esq., and Matthew

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Friedman, Esq. of Ford & Friedman.

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Counsel presented their opening statements; testimony and exhibits were also
presented.
The Court having reviewed the papers and pleadings on file herein, heard arguments

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from counsel, testimony of the parties and Defendant’s husband, Sam Gabrielle, interviewed
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the minor child, considered evidence, and good cause appearing, issues the following
FINDINGS and ORDERS:

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THE COURT FINDS that the parties discussed and, at least Veronica, understood
that the divorce agreement, including the custody agreement at issue herein, could be
modified, in other words, it was not permanent.
THE COURT FURTHER FINDS that the divorce agreement itself is binding and it

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does not contain an exception or a statement or any consent that there will be a change of
residence or citizenship regarding SMM.
THE COURT FURTHER FINDS that pursuant to the custody agreement, Francisco
has custody of SMM. Said agreement provided that he give Veronica visitation rights. He
was honoring that, therefore, Veronica must honor that too.
THE COURT FURTHER FINDS that Francisco consented to SMM visiting the

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USA, with the understanding that there was a return plane ticket purchased and SMM would
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be returning to the country of Colombia on the date of the return plane ticket.
THE COURT FURTHER FINDS that Francisco did not acquiesce to SMM
remaining in the United States after the fact.
THE COURT FURTHER FINDS that Francisco sent various emails regarding
SMM’s vaccination records and school records necessary for SMM’s enrollment in School.
THE COURT FURTHER FINDS that Francisco obviously acquiesced to the child

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being enrolled in school in the State of Nevada.
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THE COURT FURTHER FINDS that Francisco did not consent to the child’s
relocation to the United States of America or staying in the United States permanently.
THE COURT FURTHER FINDS there is no imminent or dangerous risk for the
child to return to her father in Colombia.
THE COURT FURTHER FINDS that SMM confirmed the testimony that Francisco

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spanked SMM, whipped SMM with a belt, and hit SMM on the head with a ringed finger,

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especially while in Australia. However, after they returned to the country of Colombia, her

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father needed her, was distressed and did not do that.

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THE COURT FURTHER FINDS that SMM has no desire to return to the school
where she was allegedly molested by a professor. SMM is aware that the professor is no

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longer at that school, but there is no doubt that SMM believes that the alleged incident of
molestation did occur.

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THE COURT FURTHER FINDS that the most important factual issue is whether the

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Court can rely upon the child’s desires and wishes. Moreover, the Court finds that it can rely

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upon the desires and wishes of SMM.
THE COURT FURTHER FINDS that SMM is a very mature young lady.

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THE COURT FURTHER FINDS that the minor child has a strong intellectual
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capacity and speaks her opinions well.
THE COURT FURTHER FINDS that there may be some influence by Veronica or
Sam over the child’s opinion, but that it is not an overriding or undue influence.
THE COURT FURTHER FINDS that it is apparent that Sam and/or Veronica have
insisted that SMM not speak with Francisco during this interim period.
THE COURT FURTHER FINDS that SMM stated that the reason for Veronica

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and/or Sam’s request that she not speak with Francisco is that Francisco might memorialize
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or record such communications and those could be used against her. That should stop as the
father has rights.
THE COURT FURTHER FINDS that the child desires to live with her mother,
Veronica.
THE COURT FURTHER FINDS that the child desires to live in the United States.

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THE COURT FURTHER FINDS that the child’s motivation and stated intent, to live

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with her mother and live in the U.S.A., are sincere.

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THE COURT FURTHER FINDS that it is probable that 60% of the child’s
motivation is she wants to live with her mother, and the other 40% is she likes to live in Las

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Vegas and in the United States.
THE COURT FURTHER FINDS that the child stated that she lives in a small

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apartment with her grandparents in Colombia, and that Sam provides a huge house in Las

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Vegas, and she is very well taken care of.

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THE COURT FURTHER FINDS the child’s strong express desire is to live with her
mother during the next indefinite period.

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THE COURT FURTHER FINDS that the minor child is willing, when matters
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stabilize, to return to Colombia for visitation.
THE COURT FURTHER FINDS that the Courts of Colombia have legitimate

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jurisdiction over the child.

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THE COURT FURTHER FINDS that there was no permanent change in the
residence or domicile or the intent with respect to the domicile of the child prior to her
coming to the USA and, therefore, that pursuant to the Hague Convention the Colombian

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Courts should decide these matters.
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THEREFORE, IT IS HEREBY ORDERED that Plaintiff’s Petition is granted but its

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effect shall be deferred for a period of six (6) months, from the date of _________________,
February 12, 2014

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with an additional six (6) month deferment period available upon the application of the

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parties.

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IT IS FURTHER ORDERED the Court is staying the effect of its order for a period
of six months to allow Veronica to file an appeal and get a stay, and/or to modify custody in
Colombia.
IT IS FURTHER ORDERED that there is an injunction in place immediately,

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prohibiting the removal of SMM from the State of Nevada, County of Clark, or from
changing SMM’s residence, without the Court’s permission or consent.
IT IS FURTHER ORDERED that Veronica and Sam are not prohibited from leaving
the State of Nevada.
IT IS FURTHER ORDERED Sam and Veronica are mandated to provide access, at
least by telephone, if not actual visitation. Veronica can assure herself that all such visitation

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occurs in a secure place, but must not deny access to the father for both telephone calls
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and/or visits.
IT IS FURTHER ORDERED that Sam and Veronica cannot insist on being present
during Francisco’s visits or phone calls with the child.
IT IS FURTHER ORDERED Veronica can satisfy herself that visitation is in a
secure place, like in a room in the house, or room in a commercial building, but cannot deny
face-to-face visitation in person, and cannot deny Francisco from sole presence with the

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child. Veronica needs to let Francisco and SMM talk privately.
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IT IS FURTHER ORDERED an arrangement can be made for a third party (not
Veronica or Sam), to follow in a separate car.
IT IS FURTHER ORDERED that the parties will coordinate Francisco’s visitation
during his remaining stay in Las Vegas, through their counsel.

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IT IS FURTHER ORDERED that Francisco shall be entitled to telephonic and
physical access to SMM until he departs for Colombia only if Veronica satisfies herself,
concerning SMM’s safety and security.
IT IS FURTHER ORDERED that neither party nor Sam will record SMM’s

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communications, including phone conversations.
IT IS FURTHER ORDERED that the method for applying for the additional six (6)

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month extension to the stay of this order shall be by motion, setting forth adequate cause

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upon which to issue the extension.

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IT IS FURTHER ORDERED the parties were advised that criminal contempt will lie
if either one of them violates the Court’s order, and will be prosecuted in the court of the

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United States, whether the party is in the United States.
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IT IS FURTHER ORDERED that Counsel for Francisco will prepare and provide an

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Order to Veronica’s Counsel, complying with the findings and orders of this Court. Counsel

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for Francisco will review said findings and order, to see if Veronica’s counsel has any

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objections and/or additions. Thereafter a proposed Order shall be provided to this Court to be

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entered.
IT IS SO ORDERED this 13th day of May, 2014.
IT IS SO ORDERED this _____ day of March, 2014.

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______________________________________
THE HONORABLE ROBERT C. JONES

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MCFARLING LAW GROUP

Approved as to form and content:

/s/Emily McFarling
Emily McFarling, Esq.
Nevada Bar No. 8567
Attorney for Plaintiff

/s/Matthew H. Friedman
Matthew H. Friedman, Esq.
Nevada Bar No. 11571
Attorney for Defendant

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