Alcala v. Hernandez

Filing 81

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER. Petitioner's verified petition for return of the minor children to Mexico under the Hague Convention [ECF # 1 ] is DENIED. Signed by the Honorable R. Bryan Harwell on 7/20/2015. (hcic, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Fernando Contreras Alcala,

)
)
Petitioner,
)
)
v.
)
)
Claudia Garcia Hernandez,
)
)
Respondent.
)
____________________________________)

Civil Action No.: 4:14-cv-04176-RBH

FINDINGS OF FACT,
CONCLUSIONS OF LAW,
AND ORDER

This matter is before the Court following a bench trial held on May 11-12, 2015. Having
considered the testimony of the witnesses, the exhibits, and arguments of counsel, the Court issues
the following Findings of Fact and Conclusions of Law pursuant to Rule 52 of the Federal Rules of
Civil Procedure. To the extent that any findings of fact constitute conclusions of law, or vice-versa,
they shall be so regarded. For the reasons stated below, Petitioner’s Verified Petition seeking the
return of the minor children to Mexico is denied.
Introduction
This case involves a dispute between two parents, Fernando Contreras Alcala (“Petitioner”
or “Father”) and Claudia Garcia Hernandez (“Respondent” or “Mother”), regarding their minor
children, F.C.G., a ten-year-old Mexican national, and A.C.G., a three-year-old Mexican national.
This case was initiated by the Petitioner, the children’s father, who filed a Verified Petition pursuant
to the Hague Convention on the Civil Aspects of International Child Abduction (the “Hague
Convention”) and the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. §§ 90019011, formerly cited as 42 U.S.C. §§ 11601-11611. Petitioner alleges Respondent wrongfully
removed the minor children from their habitual state of residence in Mexico and illegally entered the

United States with the children. Petitioner seeks the return of the minor children to Mexico through
the remedies provided under ICARA. Respondent, seeking to remain in the United States with the
minor children, challenges Father’s petition for return of the children to Mexico and raises several
affirmative defenses provided in the Hague Convention.
Procedural History
Petitioner filed a Verified Petition seeking the return of the minor children to Mexico on
October 27, 2014, under the Hague Convention and ICARA, 22 U.S.C. §§ 9001-9011. See [ECF
#1]. Petitioner alleges that on June 17, 2013, Respondent wrongfully removed the minor children,
against Petitioner’s wishes, from their familial home in Mexico and brought the children into the
United States illegally and without prior notice. Also on October 27, Petitioner filed a motion for
temporary restraining order [ECF #5]. In the motion for temporary restraining order, Petitioner
sought: 1) a Restraining Order preventing the Respondent from leaving the jurisdiction; 2) a Rule to
Show Cause requiring Respondent to appear at a hearing to show cause why the minor children
should not be returned to Mexico; 3) the issuance of a warrant for the physical custody of the minor
children; and 4) an expedited hearing on the merits of Petitioner’s Verified Petition.
The Court held an ex parte hearing on Petitioner’s motion for temporary restraining order on
October 28, 2014, and took the Petitioner’s motions under advisement. On October 30, 2014, the
Court issued an Order [ECF #15]: 1) requiring Respondent to appear and show cause why the minor
children should not be returned to Mexico; 2) preventing Respondent from leaving the jurisdiction;
3) denying Petitioner’s request to issue the custody warrant; and 4) scheduling an expedited hearing
on Petitioner’s request for a preliminary injunction.
The hearing on Petitioner’s request for a preliminary injunction was held on November 6,
2

2014. Respondent was present at the hearing, along with her sister, mother, and boyfriend. On
November 7, 2014, the Court issued a Preliminary Injunction Order [ECF #31] prohibiting the
removal of the minor children from the jurisdiction. The Court held a status conference on
December 9, 2014, to inquire as to the status of counsel for Respondent, who had been
unrepresented up until that point. Shortly after the status conference, due to Respondent’s
indigence, the Court appointed counsel pursuant to 28 U.S.C. ' 1915(e)(1).1 On February 4, 2015,
Respondent filed her Verified Answer [ECF #60], which raised three affirmative defenses.
At the request and consent of the parties, the Court issued a Scheduling Order [ECF #66],
which set May 11, 2015, as the date for trial. Pursuant to the Scheduling Order, the parties
exchanged expert witness designations and voluntarily exchanged documents; however, they
stipulated that formal discovery would not be appropriate due to the expedited nature of the Hague
Convention proceeding.
On January 5, 2015, the parties filed a joint stipulation of facts and procedural issues for
trial. [ECF #54]. As discussed in greater detail below, the facts stipulated to by the parties
established Petitioner’s prima facie case of wrongful removal under the Hague Convention.
Although Petitioner’s prima facie case was established by virtue of the joint stipulation of facts,
Respondent raised three affirmative defenses to Petitioner’s Petition: the well-settled defense, grave
risk defense, and the mature child objection.
The parties filed a joint witness and exhibit list [ECF #74] prior to trial. As to the
1

Petitioner, although indigent and proceeding in forma pauperis, was represented by pro bono
counsel. Petitioner was represented by Matt Abee and William McGee of Nelson Mullins Riley and
Scarborough. Respondent was represented by Nick Lewis and Brendan Barth of Barth Ballenger
and Lewis. All counsel are to be commended for their excellent representation, significant time,
effort, and energy spent on this pro bono case. Both parties received quality legal representation.
3

documents referenced on the joint exhibit list, with few exceptions, the parties stipulated to the
authenticity and admissibility.
The Court held a bench trial on May 11-12, 2015. Over the course of the two-day trial, the
following individuals testified: (1) Petitioner, who appeared by video-conference pursuant to the
Court’s Order [ECF #70]; (2) Respondent; (3) Sarahi Herrera Hernandez, sister of Respondent; (4)
Andrea Garcia Hernandez, sister of Respondent; (5) Lorenza Hernandez Perez, mother of
Respondent; (6) Evelia Ramirez, friend of Respondent from church; (7) Jose Vasquez,
Respondent’s boyfriend/fiancé; (8) Gustavo Vasquez Maas, father of Jose Vasquez; (9) Mike
Rogers, F.C.G.’s current English and Language Arts teacher at St. John’s Elementary in Darlington,
South Carolina; (10) Valerie McElroy, ESOL teacher at Greenwood Elementary in Florence, South
Caroliona; (11) Samantha Gainey, student data manager at St. John’s Elementary; (12) Valerie
Smith, ESOL director at St. John’s Elementary. On day two of the trial, expressing a desire for the
minor children not to be separated, the parties advised the Court that they wished to stipulate that
whatever decision the Court made concerning one child would apply to the other child.
In addition to the evidence presented at trial, the Court has reviewed F.C.G.’s forensic
interview. The parties submitted a Motion [ECF #56] proposing that F.C.G. and A.C.G. undergo a
forensic interview in lieu of an in camera interview or an interview by a Guardian ad Litem. The
Court entered an Order of forensic interview [ECF #57], which required the parties to schedule a
forensic interview of the Children by a State Children’s Advocacy Center. This Order also outlined
the scope of the interview.2 Because of his young age, A.C.G. was not interviewed. F.C.G.’s
2

The Order set forth the following:
“[T]he parties have outlined the following areas to be discussed during the interview:
•
Any past or present, sexual, or psychological abuse and/or harm to the
Children, as well as information regarding the Children’s living situation
4

interview took place on February 10, 2015. The parties manually filed a DVD video recording
[ECF #68] of the interview under seal on March 30, 2015.
Burden of Proof
Petitioner alleges Respondent wrongfully removed their minor children from Mexico and
brought them to the United States illegally. Petitioner is seeking the return of the minor children to
Mexico under the Hague Convention. Respondent is challenging their return by raising three
affirmative defenses available under Articles 12 and 13 of the Hague Convention: well-settled
defense, grave risk defense, and mature child objection. A petitioner in an action for the return of a
child under the Hague Convention must establish that the child has been wrongfully removed or
retained by a preponderance of the evidence. 22 U.S.C. § 9003(e)(1)(A). Upon finding that a child
has been wrongfully removed under the Hague Convention, the Court must return the child unless

in Mexico; however, this should not be construed so as to involve inquiry
into the comparative socioeconomic standards of living in the United
States versus Mexico.
•
The current living arrangements of the Children, including their
involvement in school, daycare, church, community, or extracurricular
activities, the stability of their environment, their health, their
understanding of the English language, their immigration status, their level
of education, and their interactions with friends or family members in the
locality.
•
Any objection the Children have to being returned to Mexico, the grounds
for that objection, and the extent to which the children can articulate the
reasons for the objection and the understanding of the effect of such an
objection.
•
The extent to which the Children have discussed the litigation with either
parent or their family members, or have otherwise been influenced or
coached.
In general, these topics correspond to possible defenses under Articles 12 and 13
of the Hague Convention. The parties have been careful, however, to narrowly tailor
these topics to ‘not include any inquiry or determination of the best interests of the
Children’ as prohibited by the International Child Abduction Remedies Act. See 22
U.S.C. § 9001(b)(4).” [ECF #57].
5

the respondent can establish one of the enumerated defenses. A respondent challenging the return
of a child must establish the well-settled defense and mature child objection by a preponderance of
the evidence. 22 U.S.C. § 9003(e)(2)(B). A respondent must establish the grave risk defense by
clear and convincing evidence. 22 U.S.C. § 9003(e)(2)(A).
FINDINGS OF FACT
1.

Petitioner, Fernando Contreras Alcala, is the father of the minor children, F.C.G. and A.C.G.

Petitioner is a resident of Cosolapa, Oaxaca, Mexico. F.C.G. is a ten-year-old male and A.C.G. is a
three-year-old male.
2.

Respondent, Claudia Garcia Hernandez, is the mother of the minor children, F.C.G. and

A.C.G. Respondent is an undocumented immigrant and currently resides with the minor children in
Darlington, South Carolina.
3.

The parties stipulated to the following facts: a) that when the minor children, F.C.G. and

A.C.G., were brought to the United States by Respondent, they were habitual residents of Cosolapa,
Oaxaca, Mexico, as that term is construed under the Hague Convention; b) Petitioner is the father of
the minor children and was exercising his parental custody rights as a father at the time Respondent
removed the minor children from Mexico; c) sometime in 2013, Respondent and Petitioner
discussed the option of illegally immigrating to the United States; d) on June 17, 2013, Respondent
removed the minor children from their habitual residence without Petitioner’s consent or
acquiescence; e) Petitioner has sufficient rights of custody under Oaxacan and Mexican law as that
term is used under the Hague Convention and ICARA; f) Respondent entered the United States with
the minor children illegally; g) Respondent nor the minor children had valid passports or visas at the
time they entered the United States or at any time thereafter. See [ECF #54].
6

4.

Petitioner and Respondent never married but lived together with the minor children in

Cosolapa, Oaxaca, Mexico. Respondent testified that she met the Petitioner when she was twelveyears-old and Petitioner was twenty-four-years-old. At the time, Respondent was living with her
grandmother and Petitioner’s father. Petitioner’s father is Respondent’s step-grandfather. Petitioner
and Respondent met when Petitioner came to visit his father.
5.

Although the testimony does not reflect a clear date when Petitioner and Respondent became

involved romantically, Respondent testified that she and Petitioner first had sexual relations when
she was only twelve years old. Petitioner was approximately twenty-four years old at the time.3
6.

Respondent and Petitioner began living together in September 2003, when Respondent was

thirteen years old. Petitioner testified that Respondent agreed to move in with him. Respondent
testified that Petitioner tricked her into moving in with him and that she only agreed to move in with
Petitioner because he agreed that he would move Respondent’s younger sister, Sarahi, in with them
in Cosolapa, Oaxaca, Mexico. Once Petitioner and Respondent moved in together, Petitioner
refused to bring Sarahi to live with them.
7.

Respondent’s older sister, Andrea Garcia Hernandez, testified that after Respondent moved in

with Petitioner, Respondent cried to Andrea complaining that life with Petitioner was not the life
she thought it would be and that she wanted to come back but she was ashamed of what she had
done. Andrea testified that she went to Petitioner’s home on at least two occasions attempting to
3

Article 243 of the Oaxacan Penal Code provides that “[t]hose who have intercourse
with a chaste female of strong moral character who is over the age of twelve and under
the age of eighteen by obtaining her consent through seduction or deceit will be punished
with four months to four years of imprisonment and a fine of 30 to 60 days’ wages.
When the rape victim is a minor under the age of fifteen, seduction or deceit will be
presumed in all cases.” Petitioner was never charged with a crime in Mexico in
connection to having sexual intercourse with Respondent when she was twelve years old.
7

retrieve Respondent. On the first trip, Andrea testified that she went to the house at night and
knocked on the door for approximately two hours but that no one answered the door. Respondent
testified that while Andrea was at the gate yelling for them to open, Petitioner covered Respondent’s
mouth and told her not to say anything. Andrea testified that she could hear Respondent through the
door but no one came to the door. On her second attempt a few months later, Andrea was able to
contact Respondent and brought her back to her aunt’s house. The next day, Petitioner came to the
house where Respondent was staying and took her back to his house. Andrea testified that
Petitioner threatened Andrea to stay away.
8.

At the age of thirteen, in February of 2004, Respondent became pregnant with F.C.G., who was

born in November 2004.
9.
10.

A.C.G. was born in 2011 when Respondent was 21 years old.
Respondent testified that Petitioner physically abused her on two separate occasions, once

while she was pregnant with F.C.G. and another time sometime in 2011 after A.C.G. was born.
Petitioner denied ever harming Respondent. Despite what may have occurred between Petitioner
and Respondent, there is no allegation that Petitioner ever abused or harmed the minor children.
11. Respondent testified that she felt like a prisoner in Petitioner’s home. Respondent testified that
she was forced to conduct her business (selling chickens) through the gate around the home and was
never allowed to leave the home with both of her children because Petitioner was afraid that she
would leave and never return. Petitioner denied that Respondent was ever treated like a prisoner
and testified that the gate remained unlocked and that Respondent was free to come and go as she
chose.

8

12.

Petitioner and Respondent continued to live together with their minor children, F.C.G. and

A.C.G., in Cosolapa, Oaxaca, Mexico until 2013, when Respondent began discussing with
Petitioner her desire to move, with the minor children, to the United States. Respondent’s mother
and two sisters, Andrea and Sarahi, had already moved to the United States, settling in Florence,
South Carolina. Respondent did not move to the United States with her mother and sisters because
she was pregnant with F.C.G. and living with Petitioner when her mother and sisters moved.
13.

Since Petitioner did not want to move to the United States, Respondent began preparing to

move to the United States with her minor children, with or without Petitioner.
14.

On June 17, 2013, while F.C.G. was at school, Respondent packed a few personal belongings,

including the children’s birth certificates, and left the home with A.C.G. Respondent went to
F.C.G.’s school and picked him up. Respondent, F.C.G., and A.C.G. then took a taxi to a relative’s
home in a neighboring town.
15.

Petitioner made a complaint to the authorities and provided a statement on June 18, 2013.

Petitioner told the authorities that Respondent had been telling him that she wanted to move to the
United States with the minor children and that her mother, who already lived in the United States,
had been making arrangements for the move. Petitioner completed an Application for Hague Relief
on or about August 20, 2013, in which he listed Florence, South Carolina, United States as the
minor children’s probable location.
16.

Respondent testified that after leaving Cosolapa on June 17, 2013, she, her children, and her

uncle drove towards the border, crossed the Rio Grande, and eventually entered the United States on
July 2, 2013.

9

17.

Respondent arrived in Florence, South Carolina, with F.C.G. and A.C.G. on August 22, 2013.

Respondent’s mother and two sisters had previously settled in Florence after entering the United
States illegally from Mexico sometime in 2004 or 2005. Respondent’s younger sister, Sarahi,
attended and completed elementary school, middle school, and high school in Florence.
Respondent’s older sister, Andrea, attended and completed middle school and high school in
Florence. The sisters testified that they are participants in the Deferred Action for Childhood
Arrivals (DACA) immigration program4 and each operate businesses in Florence. Respondent’s
mother and sister Andrea co-own a general store. Andrea also owns a beauty salon and clothing
boutique located next to the store she owns with her mother. Sarahi owns a business that makes
gowns and centerpieces for weddings and flower arrangements.

4

On June 15, 2012, President Obama announced the Deferred Action for
Childhood Arrivals
program, or DACA. Under DACA, certain people who came to the United States as
children and meet several guidelines may request consideration of deferred action for a
period of two years, subject to renewal. They are also eligible for work authorization.
Deferred action is a use of prosecutorial discretion to defer removal action against an
individual for a certain period of time. Deferred action does not provide lawful status. A
person may request DACA if they: (1) were under the age of 31 as of June 15, 2012; (2)
came to the United States before reaching their 16th birthday; (3) have continuously
resided in the United States since June 15, 2007, up to the present time; (4) were
physically present in the United States on June 15, 2012, and at the time of making their
request for consideration of deferred action with USCIS; (5) had no lawful status on June
15, 2012; (6) are currently in school, have graduated or obtained a certificate of
completion from high school, have obtained a general education development (GED)
certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of
the United States; and (7) have not been convicted of a felony, significant misdemeanor,
or three or more other misdemeanors, and do not otherwise pose a threat to national
security or public safety. See
http://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-daca
.
10

18.

When Respondent first arrived in Florence, she and the minor children lived with her mother.

Within a short time, Respondent enrolled F.C.G. in the third grade at Greenwood Elementary in
Florence School District One. During this time, Respondent worked for her sister and mother.
19.

Respondent and her minor children did not speak English when they arrived in the United

States. Respondent’s sisters, Andrea and Sarahi, who had both lived in the United States for years,
are fluent in English. Andrea testified that she helped Respondent register F.C.G. for school.
F.C.G. began third grade on September 9, 2013. A.C.G. was not old enough to attend school at that
time.
20.

In January of 2014, in order to have more space, Respondent and the minor children moved

out of Respondent’s mother’s home in Florence and into a mobile home owned by Andrea in
neighboring Darlington County, South Carolina. Upon moving to Darlington, F.C.G. withdrew
from Greenwood Elementary and enrolled at Brockington Elementary in Darlington on February 4,
2014.
21.

Respondent met her boyfriend, Jose Vasquez, sometime in 2013. Mr. Vasquez is also in the

United States illegally and does not have work authorization, residency authorization, DACA status,
or a driver’s license. Mr. Vasquez moved in with Respondent and the minor children in February of
2014. The testimony from Respondent’s witnesses reveals that Mr. Vasquez and Respondent are
involved in a stable, loving relationship and that they eventually plan to marry. Respondent’s older
sister described their relationship as loving and very supportive.
22.

F.C.G. finished the 2013-2014 school year at Brockington Elementary. While enrolled at

Brockington during the spring of 2014, F.C.G. was absent from school eight days. Each of these
absences was unexcused. F.C.G. made decent grades and worked with the English for Speakers of
11

Other Languages (“ESOL”) program at the school. Although he began to make progress in the
ESOL program, F.C.G.’s English proficiency was graded as “Level 1: Pre-Functional” on the spring
2014 English Language Development Assessment, the State’s standardized English proficiency test
administered by the school. Additionally, F.C.G. was graded as not meeting the State’s testing
standards for math and science based on the school’s spring 2014 standardized PASS test. The
testimony also reflects that neither of these tests were his most recent tests. The results of the spring
2015 examinations were not available at the time of trial. Valerie Smith, the ESOL director at St.
John’s Elementary, testified on cross-examination that she would not be surprised if F.C.G.’s 2015
test scores were substantially improved from his 2014 scores.
23.

In November of 2014, Respondent, the minor children, and Mr. Vasquez moved into their

current home - a mobile home owned by Mr. Vasquez’s father in Darlington County. The location
of Respondent’s current residence required F.C.G. to transfer from Brockington Elementary to St.
John’s Elementary, also in Darlington. As of the time of trial, Respondent and the minor children
continue to reside with Mr. Vasquez and his father and F.C.G. continued to attend school at St.
John’s Elementary.
24.

F.C.G. transferred to St. John’s Elementary in November of 2014. At the time of trial, F.C.G.

was still enrolled in the fourth grade at St. John’s Elementary. His most recent report card was
placed into evidence and shows that he made all As and Bs in the second and third quarter. The first
quarter F.C.G. made a C in science and math. Grades for the fourth quarter were not available at the
time of trial. While there was testimony that F.C.G. remains enrolled in the ESOL program, the
ESOL director Valerie Smith testified that she only meets with F.C.G. for approximately thirty (30)
minutes per week. Ms. Smith further testified that the amount of time spent with each child in the
12

ESOL program is based upon her availability and her assessment of the child’s needs. Ms. Smith
likewise testified that ESOL students in general are given certain accommodations, such as open
book tests, the ability to retake tests, and they are essentially graded on a curve. However, Mike
Rogers, who is the only fourth grade teacher of F.C.G. to provide testimony at trial, indicated that
F.C.G. was in his English and Language Arts classes for approximately two hours per day and was
treated no differently than any other non-ESOL student. Specifically, Mr. Rogers testified that
F.C.G. was not receiving accommodations, such as open book tests or the ability to retake tests, in
his class. Mr. Rogers further testified that he had no difficulty communicating with F.C.G. in
English and that F.C.G. got along well with all of the other children in his class. Mr. Rogers further
testified that F.C.G. made an A in the third quarter and that he anticipated that F.C.G. would also
make an A in the fourth and final quarter of the school year in his English and Language Arts class.
Although the ESOL director testified that it may take years for a student to fully comprehend
academic language which is necessary for analytical thinking, that testimony is undermined to some
extent and the Court cannot ignore the fact that F.C.G. is making As in his English and Language
Arts classes without any special accommodations.
25.

Respondent testified that she and the children have consistently attended church at the Torre

Fuerte Church. Evelia Ramirez, a member of Torre Fuerte Church, testified that Respondent, Jose
Vasquez, and the children attend services almost every Wednesday, Saturday, and Sunday. Ms.
Ramirez further testified that she watches F.C.G. and A.C.G. during church services, along with
other children of the church, and that F.C.G. and A.C.G. appear eager to learn and get along well
with the other children at the church. Respondent testified that she and the children have developed
a supportive network of friends through the church.
13

26.

Respondent testified that although she was not authorized to work in the United States, since

arriving here she has worked for her family, cooked meals for local construction workers, and
worked as a helper at a clothing store. Respondent testified that she has been consistently employed
since arriving in the United States and that she is currently making $360.00 per week. Respondent
concedes, however, that she pays no taxes on this income. Respondent testified that she is able to
meet all of her basic needs. Respondent’s family members testified that they were all able and
willing to financially assist Respondent, if needed.
27.

There was testimony regarding the immigration status of Respondent, the minor children and

several of the other witnesses. Respondent, her mother, Jose Vasquez and Gustavo Vasquez Maas
all admitted that they are in the United States illegally and do not have DACA status. Each of these
individuals, however, also testified that they have not become in the past, and currently are not,
subject to any deportation proceedings. Respondent, Jose Vasquez, and Gustavo Vasquez Maas
have all been arrested for traffic violations in the past, but all testified that those arrests did not
result in any removal or deportation proceedings. Both of Respondent's sisters, Andrea and Sarahi,
testified that they have obtained DACA status and now have work authorization cards and social
security numbers.
28.

The Court had the opportunity to review the forensic interview of F.C.G. F.C.G.

communicated throughout the interview entirely in English, with the exception of one word, and
without the assistance of the interpreter. F.C.G. was questioned about several individuals in his life,
including Petitioner, Respondent, Jose Vasquez, and Gustavo Vasquez Maas. F.C.G. initially
referred to Jose Vasquez as his dad. F.C.G. later stated that Petitioner was his father, that Jose was
his step-father, and that Gustavo was a step-grandfather. F.C.G. also stated that he wanted to
14

remain living in the United States with Respondent. F.C.G. stated that he did not want to return to
live in Mexico. When answering questions about life in Mexico, F.C.G. stated that he did not have
many friends, that he was not allowed to have fun, that Petitioner would never play with him, that
Petitioner would never let F.C.G. go outside to play, that Petitioner did not help F.C.G. with his
homework, that he did not have his own bedroom in Mexico, and that F.C.G. did not trust
Petitioner. F.C.G. also stated that he did not have toys, clothes, or shoes in Mexico. At times,
F.C.G could be seen fighting through tears when talking about life in Mexico. F.C.G. stated that
every day was the same when living in Mexico. When asked about the United States, F.C.G. stated
that he has friends and toys, that Respondent and Jose Vasquez help him with his homework, and
that he has several family members living near him.
29.

As discussed in more detail below, the Court finds that Petitioner has met his burden of proof

for establishing a prima facie case of wrongful removal. Respondent, however, has met her burden
of proving that the minor children are well-settled in their new environment. Respondent has not
met her burden of proof with regard to the grave risk defense or the mature child objection.
CONCLUSIONS OF LAW
1.

This Court has jurisdiction over this case pursuant to 22 U.S.C. § 9003(a) (jurisdiction under

the Hague Convention) and 28 U.S.C. § 1331 (federal question jurisdiction). Venue is proper
pursuant to 22 U.S.C. § 9003(b) and 28 U.S.C. § 1391(b).
Hague Convention and the International Child Abduction Remedies Act
2.

The Hague Convention is intended “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.” Maxwell v. Maxwell, 588 F.3d 245, 250 (4th Cir. 2009).
15

Additionally, Courts construe the Hague Convention so as to deter parents from unilaterally
removing the children from their habitual residence and crossing international boundaries in search
of a more sympathetic court. See Miller v. Miller, 240 F.3d 392, 398 (4th Cir. 2001). The Sixth
Circuit has explained that these goals are aimed at:
situations where one parent attempts to settle a difficult family
situation, and obtain an advantage in any possible future custody
struggle, by returning to the parent’s native country, or country of
preferred residence. . . . Under such circumstances, the Hague
Convention is clearly designed to insure that the custody struggle
must be carried out, in the first instance, under the laws of the country
of habitual residence . . . .
Friedrich v. Friedrich, 983 F.2d 1396, 1402-03 (6th Cir. 1993).
3.

To further the goals of the Hague Convention, courts are called on to preserve the status

quo—the return of the child to his home country for further proceedings. See Friedrich, 983 F.2d at
1403; Lops v. Lops, 140 F.3d 927, 936 (11th Cir. 1998). However, courts cannot issue an order
regarding the merits of the underlying custody dispute or to determine the best interests of the
child—the only inquiry is whether the treaty requires the prompt return of the child to his or her
home country. Miller, 240 F.3d at 398.
Prima Facie Case of Wrongful Removal
4.

To secure the return of an abducted child under the Hague Convention, a petitioner must prove

by a preponderance of the evidence that the child has been “wrongfully removed.” 22 U.S.C. §
9003(e)(1)(A). Specifically, the petitioner must establish that: (1) the child was “habitually
resident” in the petitioner’s country of residence at the time of removal; (2) the removal was in
breach of the petitioner’s custody rights under the law of his home state; and (3) the petitioner had
been exercising those rights at the time of removal. Miller, 240 F.3d at 398. Additionally, a
16

petitioner must establish that the children are under age sixteen at the time they are returned. Hague
Convention, art. 4. If the Petitioner establishes by a preponderance of the evidence that the removal
of the minor children from Mexico was wrongful, the Court must return the minor children to
Petitioner unless Respondent can establish one of the available defenses under the Hague
Convention. Miller, 240 F.3d at 398. However, under article 18 of the Hague Convention, the Court
retains discretion to order return even if one of the exceptions or defenses is proven. Id. at 402;
Hague Convention art. 18.
5.

The parties entered into the following factual stipulations: (1) F.C.G. and A.C.G. were habitual

residents of Cosolapa, Oaxaca, Mexico, as that term is construed under the Hague Convention; (2)
Petitioner is the father of F.C.G. and A.C.G. as set forth in the children’s valid birth certificates; (3)
Petitioner was exercising his parental custody rights as a father at the time Respondent removed
them from Mexico; (4) sometime in 2013, Respondent discussed the option of illegally immigrating
into the United States with Petitioner; (5) on June 17, 2013, Respondent removed the Children from
their habitual residence without Petitioner’s consent or acquiescence; (6) Petitioner has sufficient
rights of custody under Oaxacan and Mexican law as that term is used under the Hague Convention
and ICARA; (7) Respondent entered the United States with the children illegally; and (8) neither
Respondent nor the Children had valid passports or visas at the time they entered the United States
or at any time thereafter. [Dkt. No. 54]. Lastly, it is undisputed that F.C.G. is ten, and A.C.G. is
three – both under the age of sixteen as required by the Hague Convention.
6.

Based on the parties’ stipulations, the Court concludes that Petitioner has established, by a

preponderance of the evidence, a prima facie case for wrongful removal of the minor children from
Mexico.
17

Affirmative Defenses
7.

Because Petitioner has established a prima facie case of wrongful removal under the

Convention, the minor children must be returned to Mexico as their place of habitual residence
unless Respondent can establish one of several narrow defenses. Miller, 240 F.3d at 398.
Respondent argues that three defenses apply here – the well-settled defense, the mature child’s
objection, and the grave risk defense. The well-settled defense and mature child objection require
proof by a preponderance of the evidence, while the grave risk defense requires proof by clear and
convincing evidence. 22 U.S.C. § 9003(e).
8.

However, as is clear from ICARA, these affirmative defenses are meant to be narrow. See

Blondin v. Dubois, 189 F.3d 240, 246 (2d Cir. 1999). Indeed, these defenses “do not authorize a
court to exceed its Hague Convention function by making determinations, such as who is the better
parent, that remain within the purview of the court with plenary jurisdiction over the question of
custody.” Blondin, 189 F.3d at 246.
9.

Moreover, even where the respondent meets his or her burden to show that an exception

applies, the court may nevertheless exercise discretion to order repatriation. Hague Convention, art.
18; Miller, 240 F.3d at 402.
10.

As to these affirmative defenses, the Court accepts the stipulation of the parties that the

Children are not to be separated. If the Court concludes that one of the defenses discussed below
apply to one of the minor children, the parties have stipulated that the defense should also apply to
the other child so that the children can remain together.
Well-Settled Defense

18

11.

Respondent challenges the return of the minor children to Mexico by invoking the well-

settled defense set forth in Article 12 of the Hague Convention. Article 12 provides that:
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.
The judicial or administrative authority, even where the
proceedings have been commenced after the expiration of
the period of one year referred to in the preceding
paragraph, shall also order the return of the child, unless it
is demonstrated that the child is now settled in its new
environment.
Where the judicial or administrative authority in the
requested State has reason to believe that the child has been
taken to another State, it may stay the proceedings or
dismiss the application for the return of the child.
Hague Convention, art. 12.
12.

To establish the well-settled defense, Respondent must prove by a preponderance of the

evidence that (a) the child is “well-settled” in his new environment and (b) Petitioner initiated
judicial proceedings under the Convention more than one year after the wrongful removal. Belay v.
Getachew, 272 F. Supp. 2d 553, 560-61 (D.Md. 2003).
13.

Petitioner does not dispute that he initiated the present proceedings more than one year after

the wrongful removal of the minor children from Mexico. The key dates under the Hague
Convention are the dates of the wrongful removal or detention and the date of the commencement of
the proceedings before the judicial or administrative authority of the Contracting State where the
child is located. Hague Convention, art. 12. Under ICARA, the commencement of proceedings
19

begins with the filing of a judicial petition. Mendez Lynch v. Mendez Lynch, 220 F. Supp. 2d 1347,
1362 (M.D.Fla. 2002) (citing Wojcik v. Wojcik, 959 F. Supp. 413, 418-19 (E.D.Mich.1997)). The
minor children were wrongfully removed on June 17, 2013. Petitioner did not file his petition under
the Convention until October 27, 2014. Petitioner does not dispute that he knew the probable
location of the minor children was Florence, South Carolina as early as August 2013.5 See [Joint
Trial Exhibit 6 and ECF #1-3, pg. 3]. Accordingly, the Court finds by a preponderance of the
evidence that Respondent has established the one-year element of the well-settled defense.
14.

Respondent must still establish that the minor children are well settled in their new

environment. Article 12 of the Hague Convention does not define the term “settled.” However,
courts have interpreted it to ask whether “the child is in fact settled in or connected to the new
environment so that, at least inferentially, return would be disruptive with likely harmful effects.” In
re D.T.J., 956 F. Supp. 2d 523, 534 (S.D.N.Y. 2013). In determining whether the child is wellsettled, courts have considered the following non-exhaustive list of factors: (1) the age of the child;
(2) the stability of the child’s residence in the new environment; (3) whether the child attends school
or day care consistently; (4) whether the child attends church or participates in other community or
extracurricular school activities regularly; (5) the respondent’s employment and financial stability;
(6) whether the child has friends and relatives in the new area; and (7) the immigration status of the
child and respondent. Lozano v. Alvarez, 697 F.3d 41, 57 (2d Cir. 2012), aff’d, 134 S.Ct. 1224
(2014). With respect to immigration status, the importance of this factor has been held to be

5

Petitioner does not allege that Respondent concealed the location of the children
and has not sought equitable tolling of the one-year period necessary to establish the wellsettled defense. The Supreme Court has recently held that equitable tolling is not
available under the Hague Convention. See Lozano v. Montoya Alvarez, 134 S.Ct. 1224
(2014).
20

relevant only if there is an immediate, concrete threat of deportation. In re B. Del C.S.B., 559 F.3d
999, 1009 (9th Cir. 2009); In re Lozano, 809 F. Supp. 2d 197, 232-33 (S.D.N.Y. 2011) (stating there
is “nothing to suggest that, at this moment, or in the near future, the immigration status of the child
and Respondent is likely to upset the stability of the child’s life here in New York”). In most cases,
the importance of the child’s immigration status will vary based on the likelihood that the child will
be able to acquire legal status or otherwise remain in the United States, the child’s age, and the
extent to which the child will be harmed by her inability to receive certain government benefits.
Lozano, 697 F.3d at 57. In any event, immigration status is but one factor to consider in the multifactor analysis of whether a child is well-settled in his or her new environment.
15.

The Court concludes by a preponderance of the evidence that the minor children are well-

settled in their new environment. The forensic interview of F.C.G. illustrates that he can speak,
understand, and converse in English. F.C.G.’s language abilities are significant evidence of his
acclimatization to his new environment given the fact that he could not speak any English when he
arrived in August of 2013. F.C.G.’s current English teacher at St. John’s Elementary, Mike Rogers,
testified that F.C.G. had a good grasp of the English language and was expected to receive an A in
the fourth quarter of the year in English and Language Arts. A review of F.C.G.’s report card from
St. John’s Elementary shows that he received all A’s and B’s except for a C in science and math,
which he received at the beginning of the year. F.C.G. is enrolled in the English for Speakers of
other Languages program6 or ESOL; however, F.C.G.’s English teacher, Mr. Rogers, who was with
F.C.G. for two hours each day, testified that F.C.G. had not received any special accommodations of
6

Participants in ESOL are eligible for certain accommodations in the school setting.
For example, they may be given extra time on tests, have the tests read to them, take tests
using an open book, or may be able to re-take tests. F.C.G.’s English teacher at St. John’s
Elementary testified that F.C.G. did not receive any of these accommodations in his class.
21

which he was aware. In addition to F.C.G.’s English language ability, testimony indicated that
A.C.G.’s first words were in English rather than Spanish.
16.

The minor children have substantial family ties in their new environment. The testimony

presented establishes that the minor children have a significant number of family members in the
area including their grandmother, two aunts (with their respective families), and a number of
cousins. The minor children have extensive contact with those family members and attend
numerous family gatherings. The minor children’s family has strong ties to the community through
successfully owning and operating local businesses.
17.

The minor children regularly attend church in their new environment and are present almost

every Wednesday, Saturday, and Sunday. Testimony from a church member indicates that F.C.G.
and A.C.G. get along well with the other children and have friends at the church.
18.

The minor children have friends in their new environment. Testimony from F.C.G.’s English

teacher at St. John’s Elementary indicates that F.C.G. is well-liked by his peers and has a number of
friends in his class. Evidence was also presented showing the minor children playing outside their
home with other children in their neighborhood.
19.

As noted above, F.C.G. has performed exceptionally well in school receiving above average

grades during his most recent school year. Testimony from F.C.G.’s ESOL teacher indicated that
she only met with F.C.G. thirty minutes per week implying that F.C.G. did not require significant
ESOL instruction.
20.

Respondent admits that she is in the United States illegally and lacks the legal authorization to

be employed. Despite those limitations, Respondent has remained gainfully employed and
consistently earned an income since her arrival in the United States. Respondent first worked in her
22

mother and sister’s shop, then she cooked for local construction workers, and currently works in a
clothing warehouse earning $360.00 per week. Respondent is clearly able to provide for the minor
children. Testimony from other witnesses indicates that F.C.G. and A.C.G. are provided with
adequate clothing, food, and shelter. Respondent’s mother and sisters indicated that they would also
be willing to help Respondent and the minor children if needed.
21.

The Court finds that Respondent has maintained a stable residence for the minor children in

their new environment. Respondent and the minor children first lived with Respondent’s mother in
Florence County for four to five months after arriving in the United States. In order to have more
space, Respondent and the minor children left her mother’s residence and moved into a mobile
home owned by Respondent’s sister, Andrea, in Darlington County, which is adjacent to Florence
County. After staying in Andrea’s mobile home for eleven months, Respondent and the minor
children moved in with Respondent’s boyfriend, Jose Vasquez, also in Darlington County.
Although Respondent has lived with the minor children in three different locations since arriving in
the United States, the moves were within the same geographical region (Pee Dee area of South
Carolina) and did not disrupt the minor children’s daily lives. The second move was within the
same community and school district in Darlington County. Respondent’s reasons for moving twice
are reasonable and do not reflect an unstable existence for the minor children. Importantly,
Respondent has not attempted to conceal the whereabouts of the minor children. The Court
concludes that the minor children have a stable home life in their new environment.
22.

The minor children’s immigration status is cause for concern, but, as a practical matter, it is

highly unlikely that they will face deportation anytime soon. There are no current, imminent, or
threatened removal or deportation proceedings. If the past is any indication of the future, it is worth
23

noting that the minor children’s aunts were in the United States illegally and, despite that, graduated
from the local public school system attending from elementary school through high school. Now,
both of the minor children’s aunts have DACA status and operate local businesses and make
positive contributions to the community. The minor children’s grandmother has been in the United
States illegally for almost fifteen years and also operates a local business. Given the length of time
the minor children’s relatives have remained in the United States illegally, there is nothing to
suggest that, at this moment, or in the near future, the immigration status of the minor children is
likely to upset the stability of their life in their new environment. See In re Lozano, 809 F. Supp. 2d
at 233. Further, there has been no testimony or indication that F.C.G. or A.C.G. are likely to suffer
any harm from their inability to receive certain government benefits due to their illegal status.
Testimony indicates that the minor children are well-cared for, have access to medical care, and are
supported by a network of family and friends.
23.

While the minor children’s immigration status might arguably weigh against a finding of

well-settled, immigration status is not dispositive of the issue. While the children are ten years old
and three years old, both children have assimilated themselves into their new environment. The
children’s residence has been relatively stable and although they have moved from one house to
another, they have remained in the same geographical area in Florence and Darlington County with
many extended family members within reasonably close proximity available to assist. The older
child has consistently attended elementary school and done above-average, if not well. Both
children have regularly attended a local church at least twice per week and both have established
friendships either at school or in their neighborhood. Respondent has consistently worked with the
help of her extended family members, most of whom are gainfully employed. Since their arrival the
24

children have always had sufficient food, clothing, and shelter and extensive family support. While
Respondent’s and the minor children’s immigration status is of concern, as a practical matter there
are no current removal or deportation proceedings pending or imminent. The minor children have
family members who have been here illegally for ten years or more. The stability of the minor
children’s residence, F.C.G.’s school attendance and acclimatization to his school, F.C.G.’s school
performance, the minor children’s adoption of the English language, church attendance,
Respondent’s employment and financial stability, and the network of family and friends in the new
area outweighs the immigration status of the minor children. Balancing the relevant factors, the
Court concludes by a preponderance of the evidence that the minor children are well-settled in their
new environment.
Mature Child Objection/ Age and Maturity Exception
24.

Respondent raises the mature child objection or age and maturity exception as a defense to the

petition to return the children to Mexico. Article 13 of the Hague Convention provides that the
Court may decline to order the return of the child if it finds 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.
Hague Convention, art. 13. The respondent must establish the applicability of the mature child
objection by a preponderance of the evidence. 22 U.S.C. § 9003(e). Although courts have construed
the mature child objection narrowly, see England v. England, 234 F.3d 268, 272 (5th Cir. 2000), a
court may refuse repatriation solely on the basis of a considered objection to returning by a
sufficiently mature child. Blondin v. Dubois, 238 F.3d 153, 166 (2d Cir.2001). A court must apply a
stricter standard in considering a child's wishes when those wishes are the sole reason underlying a

25

repatriation decision and not part of some broader analysis. de Silva v. Pitts, 481 F.3d 1279, 1286
(10th Cir. 2007).
25.

In applying the mature child objection, a court must not focus solely on the general goal of the

Convention – to protect children from the harmful effects of wrongful removal – but must also
carefully determine that the particular child has obtained an age and degree of maturity at which it is
appropriate to take account of its views. Blondin v. Dubois, 189 F.3d 240, 247 (2d Cir.1999). The
Convention contains no age limit for applying the exception. de Silva, 481 F.3d 1 at 1286.
26.

“Given the fact-intensive and idiosyncratic nature of the inquiry, decisions applying the age

and maturity exception are understandably disparate.” Hirst v. Tiberghien, 947 F. Supp. 2d 578,
596-97 (D.S.C. 2013); See, e.g. England, 234 F.3d at 272-73 (reversing district court that had taken
a thirteen-year-old child’s wishes into account where child had learning disabilities, had had four
mothers in twelve years, had attention deficit disorder, took Ritalin, and was scared and confused);
Haimdas v. Haimdas, 720 F. Supp. 2d 183, 208 (E.D.N.Y. 2010) (finding a nine-year-old two
months shy of his tenth birthday was hardly sufficiently mature for the Court to take his views into
account in deciding whether or not to order his return); Lopez v. Alcala, 547 F. Supp. 2d 1255 (M.D.
Fla. 2008) (finding that a ten-year-old had reached an age of maturity, but ordering return because
the childs fears regarding return were unfounded); Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259,
279 (3d Cir. 2007) (finding a ten-year-old considered a border-line genius was not of sufficient age
and maturity for her views to be taken into account); Matovski v. Matovski, No. 06 Civ. 4259(PKC),
2007 WL 2600862 (S.D.N.Y. Aug. 31, 2007) (considering the objections of a twelve-year-old and
an eleven-year-old in denying return in conjunction with a finding that the children were well-settled
in the place of wrongful retention pursuant to Article 12 of the Convention, but denying return);
26

Anderson v. Acree, 250 F. Supp. 2d 876, 883 (S.D.Ohio 2002) (finding that an eight-year-old child’s
objection to a return furnished an independent basis for the court not to return the child, but relying
also on a finding that the child was well-settled in her new residence for 22 months pursuant to
Article 12 of the Convention); Raijmakers-Eghaghe v. Haro, 131 F. Supp. 2d 953, 957-58 (E.D.
Mich. 2001) (ordering limited discovery including psychological reports and in camera interview to
gather enough information to pursue issue of eight-year-old child’s wishes); Tahan v. Duquette, 259
N.J.Super. 328, 613 A.2d 486, 490 (1992) (holding, without discussion, that the maturity exception
simply does not apply to a nine-year-old child).
27.

The court must distinguish between a child’s objections as defined by the Hague Convention

and the child’s wishes as in a typical child custody case. de Silva, 481 F.3d at 206. A child's
“generalized desire” to remain in the United States is “not necessarily sufficient to invoke the
exception . . .” Yang, 499 F.3d 279. The child must “include particularized objections to returning
to” the former country of residence. Id. Where the particularized objection is “born of rational
comparison” between a child’s life in the new country and the country of habitual residence, the
court may consider the child’s objections to be a mature objection worthy of consideration. Castillo
v. Castillo, 597 F. Supp. 2d 432, 441 (D. Del. 2009).
28.

Likewise, the child’s preference for one parent over another is insufficient – considering such

a preference would place the Court in the position of deciding parental custody, which is prohibited
by the Hague Convention and ICARA. See Hazbun Escaf v. Rodriquez, 200 F. Supp. 2d 603, 615
(E.D. Va. 2002) (finding that to accommodate a thirteen-year-old’s preference to stay in the United
States and spend more time with his father “would be a custody determination that is not at issue in
a Hague Convention petition”); Haimdas, 720 F. Supp. 2d at 208 (“[Child who was nearly ten years
27

old] sees this as a choice of which parent he wants to live with, not which country he wants to grow
up in; his stated preference to remain in New York is not a particularized, mature objection that
should be part of the Court’s Hague Convention analysis.”). Giving consideration to such wishes
would place the court in the position of deciding custody which is explicitly not the mandate of a
court hearing a wrongful retention case under the Hague Convention.
29.

In this case, the Court reviewed the forensic interview of F.C.G., who was ten years old at the

time. In the interview, F.C.G. expressed an unequivocal desire to remain in the United States.
F.C.G. stated that he did not trust the Petitioner and that Petitioner never played with him or helped
him with his school work. F.C.G. complained that he never had any toys in Mexico and had to
sleep in a bed with his grandmother (Petitioner’s mother). F.C.G. stated that he wanted to stay in
the United States because he had a room, friends, and his own toys. F.C.G. was polite and wellspoken during the interview. F.C.G.’s reasons for wanting to remain in the United States, however,
do not indicate a level of maturity such that this Court should give his wishes significant weight.
The reasons for wanting to remain in the United States must be “born of rational comparison”
between his life in the new country and his country of habitual residence. See Castillo, 597 F. Supp.
2d at 441. F.C.G.’s wishes regarding staying in the United States as expressed in the forensic
interview are merely preferences for one parent or one lifestyle over another. F.C.G. has not
articulated a particularized, mature objection to returning to Mexico versus remaining in the United
States.
30.

Accordingly, Respondent has failed to establish the mature child objection by a

preponderance of the evidence.
Grave Risk Defense
28

31.

Respondent also asserts the grave risk defense found in Article 13(b) of the Hague

Convention. Article 13(b) provides that the Court is not bound to return a child to its habitual state
of residence if “there is a grave risk that his or her return would expose the child to physical or
psychological harm or otherwise place the child in an intolerable situation.” Hague Convention, art.
13(b). Respondent has the burden of establishing the grave risk defense by clear and convincing
evidence. 22 U.S.C. § 9003(e)(2)(A).
32.

The grave risk defense is a narrow one. Miller, 240 F.3d at 402. It has been held that “grave

risk of harm” for purposes of the defense under Article 13(b) can exist in only two situations: (1)
where return of the child puts the child in imminent danger prior to the resolution of the custody
dispute, e.g. returning the child to a zone of war, famine, or disease; and (2) cases involving serious
abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual
residence may be incapable or unwilling to give the child adequate protection. Friedrich v.
Friedrich, 78 F.3d 1060, 1069 (6th Cir. 1996).
33.

The grave risk defense “may not be used ‘as a vehicle to litigate (or relitigate) the child’s best

interests.’” Charalambous v. Charalambous, 627 F.3d 462, 468 (1st Cir. 2010) (quoting Danaipour
v. McLarey, 286 F.3d 1, 14 (1st Cir. 2002)). “Only evidence directly establishing the existence of a
grave risk that would expose the child to physical or emotional harm or otherwise place the child in
an intolerable situation is material to the court’s determination.” Public Notice 957, 51 Fed. Reg. at
10510. Furthermore, the Court is not permitted to determine whether one parent would be better
than the other, or whether the environment offered by Respondent is superior to their home
environment. See Whallon v. Lynn, 230 F.3d 450, 459 (1st Cir. 2000). “Courts are not to engage in
a custody determination, so [i]t is not relevant ... who is the better parent in the long run, or whether
29

[the absconding parent] had good reason to leave her home ... and terminate her marriage.” Walsh v.
Walsh, 221 F.3d 204, 218 (1st Cir. 2000). Instead, the respondent must be able to cite specific
evidence of potential harm to the individual children. Rydder v. Rydder, 49 F.3d 369, 373 (8th Cir.
1995).
34.

It is generally insufficient for a respondent to offer evidence of abuse directed only at the

respondent. Whallon, 230 F.3d at 460; Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 376-77 (8th
Cir. 1995) (holding physical and sexual abuse of mother insufficient to establish grave risk of harm
to child). This is especially true if that abuse did not occur in front of the child. Whallon, 230 F.3d
at 460; Nunez-Escudero, 58 F.3d at 376-77. “The grave-risk inquiry should be concerned only with
the degree of harm that could occur in the immediate future.” Gaudin v. Remis, 415 F.3d 1028, 1037
(9th Cir. 2005).
35.

Respondent testified that she was only twelve years old when she first had sexual relations

with the Petitioner, who was approximately twenty-four years old at the time. Respondent testified
that Petitioner physically assaulted her once while she was pregnant, and again after the children
were born. Petitioner denied these allegations. Petitioner was never charged with a crime
concerning his conduct or relationship with Respondent. There was no evidence that any reports or
complaints were filed with law enforcement alleging that Petitioner engaged in either spousal or
child abuse.
36.

There was no testimony that Petitioner ever abused F.C.G. or A.C.G. While Respondent’s

allegations concerning Petitioner’s treatment of her are troubling, there is insufficient evidence that
F.C.G. or A.C.G. would be exposed to any physical or psychological harm at the present time, or
otherwise be placed in an intolerable situation, if they are returned to Mexico. Respondent has
30

failed to meet the heavy burden of establishing the grave risk defense by clear and convincing
evidence.
Discretion to Order Return
37.

Having determined that the minor children are well-settled in their new environment, the

Court must now consider whether to exercise its discretion under Article 18 of the Hague
Convention and order the return of the minor children despite the fact that they are now well-settled
in the United States. de Silva, 481 F.3d at 1285; Danaipour v. McLarey, 286 F.3d 1, 14 (1st Cir.
2002); Miller, 240 F.3d at 402. Article 18 of the Hague Convention provides that “[t]he provisions
of this Chapter do not limit the power of a judicial or administrative authority to order the return of
the child at any time.” Hague Convention, art. 18.
38.

In his concurring opinion in Lozano v. Montoya Alvarez, 134 S.Ct. 1224, 1237 (2014), Justice

Alito listed several factors that could outweigh the child’s interest in remaining in his new
environment: 1) the child’s interest in returning to his or her original country of residence; 2) the
child’s need for contact with the non-abducting parent; 3) the non-abducting parent’s interest in
exercising custody to which he or she is legally entitled; 4) the need to discourage inequitable
conduct (such as concealment) by abducting parents; and 5) the need to deter international
abductions generally. Lozano, 134 S.Ct. at 1237.
39.

There was no evidence that Respondent attempted to conceal the minor children. Petitioner

does not dispute that he knew the probable location of the minor children as early as August 2013.
Despite having that knowledge, Petitioner did not file the instant Hague Convention petition until
October 27, 2014.

31

40.

The minor children’s interest in returning to Mexico is not outweighed by their interest in

remaining in the United States. Although the Court overruled Respondent’s mature child objection,
F.C.G. objects to returning to Mexico. There is strong evidence that the minor children are wellsettled in their new environment. F.C.G. and A.C.G. are acclimated to their new surroundings and,
by all accounts, are thriving. Since their arrival, both children have gained weight and are happy
and healthy. F.C.G. is doing well in school and has many friends.
41.

The minor children’s need for contact with the Petitioner does not outweigh their interest in

remaining in their new environment. Likewise, Petitioner’s interest in having his children returned
to Mexico does not outweigh the children’s interest in remaining in their current, stable
environment. Although Respondent’s conduct in removing the children from Mexico was clearly
contrary to the Hague Convention, her conduct does not justify the exercise of discretion to return
the children. There was no inequitable conduct such as concealment on Respondent’s part.
42.

The Court’s decision not to return the minor children to Mexico is not a custody

determination; nor does it mean that Petitioner should not have contact with the minor children.
Rather, the Court’s ruling is merely a decision that any custody determination should be made by a
court in South Carolina, as opposed to one in Mexico. See In re Lozano, 809 F. Supp. 2d at 234-35.
Accordingly, the Court declines to exercise discretion to return the children under Article 18 of the
Hague Convention. F.C.G. and A.C.G. should not be returned to Mexico at this time and any
custody arrangement between Petitioner and Respondent should be determined by a South Carolina
court.
Conclusion
For the reasons stated above, Petitioner has established a prima facie case of wrongful
32

removal under the Hague Convention. Respondent, however, has established by a preponderance of
the evidence that the minor children are well-settled in their new environment. Respondent has
failed to meet her burden of establishing the mature child objection or the grave risk defense. The
Court declines to exercise its discretion to order the minor children returned even though they are
now well-settled. Petitioner’s verified petition for return of the minor children to Mexico under the
Hague Convention [ECF #1] is DENIED.
IT IS SO ORDERED.
Florence, South Carolina
July 20, 2015

s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge

33