Mori v. Moquillaza
Filing
38
MEMORANDUM OPINION AND ORDER. Signed by Magistrate Judge Amos L. Mazzant on 8/8/14. (cm, )
United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
ANA MARÍA VERÓNIKA MORI
SAN MARTÍN
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V.
ALEXANDER CHRISTIAN MARTINEZ
MOQUILLAZA
CASE NO. 4:14-CV-446
Judge Mazzant
MEMORANDUM OPINION AND ORDER
On July 7, 2014, Petitioner Ana María Verónika Mori San Martín filed this action
seeking the return of her nine-year-old and twelve-year-old daughters, both minors
(“A.C.C.M.M. and A.A.M.M.”), to Peru (Dkt. #1). On July 18, 2014, United States District
Judge Ron Clark issued a temporary restraining order, preventing Respondent from removing the
children from the jurisdiction of the Court pending a trial on the merits of the Verified Complaint
(Dkt. #6). On July 29, 2014, the Court appointed counsel for Respondent, and on July 31, 2014,
Respondent filed his answer (Dkt. #17, #18). On August 1, 2014, the parties consented to the
jurisdiction of the undersigned for resolution of this dispute, and this case was referred to the
undersigned for all further proceedings on August 2, 2014 (Dkt. #32). The Court conducted a
bench trial on Petitioner’s Verified Complaint and Petition for Return of the Children on August
5, 2014 (Dkt. #1; #36). A court-appointed Spanish interpreter was present to assist with the
proceedings, as most of the parties and witnesses involved requested the assistance of an
interpreter. In addition, an attorney ad litem was appointed to interview the children, and be
present during the in camera interview of the children with the Court.
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BACKGROUND
A.C.C.M.M. was born in Peru in 2002, when her mother, Petitioner, was 15 years-old and
her father, Respondent, was 22 years-old. In 2005, A.A.M.M. was born in Peru. Petitioner and
Respondent are the biological parents of both children. Petitioner, Respondent, and the children
lived in the same familial home in Comos, Lima, Peru, until October of 2008, when Respondent
left Peru and moved to the United States for work. He returned to Peru in March of 2009, and
Petitioner and Respondent were married on April 8, 2009. Respondent left Peru again in May of
2009, and returned in December of 2009. Over the next few years, this pattern continued with
Respondent returning to Peru for approximately one month out of every year, and returning to
the United States where he resided for the remaining eleven months. Petitioner and Respondent
separated, but continued to act as a married couple until 2012. They are still legally married.
After their separation, the children continued living with Petitioner in the family home in
Comos, Lima, Peru. The children attended school there, and lived close to their aunts and
cousins. When Respondent would visit Peru, he would stay with a cousin, but would visit with
the children and they would stay with him at times. Until June of 2013, the children had never
left Peru. Petitioner testified that when Respondent originally left Peru to go to the United
States, the plan was to obtain legal resident status for himself, as well as for Petitioner and the
children so that the family could move to live in the United States.
In 2013, Petitioner and Respondent began having discussions regarding Respondent’s
visitation of the children. Respondent expressed a desire for the children to visit him in the
United States; however, Petitioner testified that she was wary of this request because at the time
Petitioner and Respondent were separated with many problems, and she did not trust that he
would return the children to her in Peru. In April of 2013, the Petitioner and Respondent went to
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the Peruvian Center for Conciliation and, with the help of the Extrajudicial Conciliator, an
attorney, entered into the Final and Complete Certificate of Conciliation that set forth their
voluntary compromise and settlement agreement regarding custody of the children, visitation,
alimony, and child support. The agreement set out a monthly amount for spousal alimony and a
monthly amount of support for the children. The agreement also sets out that the children are to
reside in the home of their mother in Peru, allows Respondent to visit the children in Peru as
long as he does not alter the schedule of studies, and provides that the children may visit the
home of their father in the United States for two weeks in the mid-year school holidays and in
the summer holidays, with Respondent bearing the travel expenses and costs for the visits. Both
parties signed and fingerprinted the agreement, and both agreed that the agreement was entered
into voluntarily.
On June 24, 2013, Petitioner signed an Authorization for Foreign Travel of Children form
for both children, which allowed them to travel with Respondent from Peru to the United States
beginning on June 25, 2013, and required Respondent to return the children to Peru on July 10,
2013. The children left Peru with Respondent on June 27, 2013, and, as of the date of the bench
tiral, had not been returned to Peru.
The testimony revealed that the children were expecting to travel with Respondent to the
United States where they would spend a portion of their vacation at Disney World, and other
places. At the conclusion of the two weeks, Petitioner testified that she received a call from her
oldest daughter, A.C.C.M.M, requesting to stay an additional week so that the children could
spend more time with their father. There is some dispute as to how long Petitioner allowed the
children to remain in the United States. Petitioner testified that she agreed to only one additional
week. Respondent testified that Petitioner agreed to an unspecified amount of additional time.
3
A.C.C.M.M. indicated that Petitioner agreed to allow the children to remain in the United States
an additional 21 days to obtain their permanent resident status.
Regardless, the evidence
revealed that Petitioner agreed to a limited extension of the children’s visit to the United States,
did not agree to the children’s permanent removal from Peru, and that at the end of the requested
extension Respondent refused to return the children.
During the time the children remained in the United States, Petitioner was unable to
speak to or contact her children on multiple occasions, did not always know the address where
the children were living, and was generally unaware of the circumstances of their lives while
living in the United States. On February 12, 2014, after obtaining all the required documents,
Petitioner submitted a request to the General Director of Children and Adolescents at the Central
Authority of Peru, and on March 3, 2014, Petitioner’s Request for Return of the Children was
submitted to the United States Department of State through the Peruvian Central Authority.
LEGAL STANDARD
Petitioner has brought this action for the return of A.C.C.M.M. and A.A.M.M. under the
provisions set forth in the Hague Convention on the Civil Aspects of International Child
Abduction (hereinafter “CONVENTION”) and the International Child Abduction Remedies Act, 42
U.S.C. § 11601, et seq. “The Convention has two primary ‘objects’: (1) ‘to secure the prompt
return of children wrongfully removed to or retained in any Contracting State; and’ (2) ‘to ensure
that rights of custody and of access under the law of one Contracting State are effectively
respected in the other Contracting States.’” Larbie v. Larbie, 690 F.3d 295 (5th Cir. 2012)
(citing CONVENTION, art. 1). This essentially means that under the Convention, a “wrongfully
removed” child “is returned to his or her home country; the return order is not a determination as
to the permanent legal or physical custody of the child.” Sanchez v. R.G.L., No. 12-50783, 2014
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WL 3798186, at *4 (5th Cir. Aug. 1, 2014) (citing Abbott v. Abbott, 560 U.S. 1, 5 (2010)). “By
focusing on the child’s return, the Convention seeks to ‘restore the pre-abduction status quo and
to deter parents from crossing borders in search of a more sympathetic court.’” Id. (citing
England v. England, 234 F.3d 268, 271 (5th Cir. 2000)).
In a case falling under the Hague Convention, a petitioner must establish by a
preponderance of the evidence that the child has been wrongfully removed or retained within the
meaning of the Convention. 42 U.S.C. § 11603(e); De Vasconcelos v. De Paula Batista, No.
4:10-cv-628, 2011 WL 806096, at *1 (E.D. Tex. March 1, 2011). In making a showing of
wrongful removal here, Petitioner must prove that (1) the children were “habitual residents” of
Peru at the time of removal; (2) the removal was in breach of Petitioner’s custody rights under
the law of Peru; and (3) Petitioner had been exercising those rights at the time of removal. De
Vasconcelos, 2011 WL 806096, at *1 (citing Edoho v. Edoho, No. H-10-1881, 2010 WL
3257480, at *4 (S.D. Tex., Aug. 17, 2010); Van Driessche v. Ohio-Esezeoboh, 466 F. Supp. 2d
828, 841 (S.D. Tex. 2006)).
Even if a court finds that a child was wrongfully removed, however, a child will not be
returned if one of many exceptions is established. Id. at *2. The burden shifts to the respondent
to establish by a preponderance of the evidence one of the following exceptions: (1) that the
proceeding was commenced more than one year after the removal of the child and the child has
become “well-settled” in her new environment; (2) that the petitioner was not actually exercising
the custody rights at the time of removal or retention or consented to or subsequently acquiesced
to the removal or retention; or (3) 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 her views. CONVENTION,
arts. 12 & 13; 42 U.S.C. § 11603(e). In addition to these exceptions, a respondent can avoid
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return of the child by showing the following exceptions by clear and convincing evidence: (1)
that there is a grave risk that the return of the child would expose her to physical or
psychological harm or otherwise place her in an intolerable situation, or (2) that the return of the
child would not be permitted by fundamental principles of the requested state relating to the
protection of human rights and fundamental freedoms. CONVENTION, arts. 13(b) & 20; 42 U.S.C.
§ 11603 (e). “Courts should narrowly interpret a defense and allow it to prevent the child’s
return only in meritorious cases when the person opposing return has met the burden of proof.”
Van Driessche, 466 F. Supp. 2d at 846.
ANALYSIS
At the hearing the Court heard testimony from Petitioner, Respondent, Rosa Maria
Anglas (“Ms. Anglas”), a friend of Respondent, Wanda Echevarria (“Ms. Echevarria”), a school
psychologist who met with the children, Roger William Diaz Vega (“Mr. Diaz”), a friend of both
Petitioner and Respondent who testified via telephone in Peru, Silvia Maguina Ramirez,
Petitioner’s aunt who testified via telephone in Peru, as well as in camera testimony from
A.A.M.M. and A.C.C.M.M.
The parties also submitted documentary evidence including
documents from Peru, the custody agreement entered into by the parties, and an English
translation of certain Peruvian family law provisions.
Wrongful Removal
The Court first addresses whether Petitioner satisfied her burden to show that the children
were wrongfully removed from Peru in 2013.
As stated above, to sustain her burden here, Petitioner was required to show that: that (1)
the children were “habitual residents” of Peru at the time of removal; (2) the removal was in
breach of Petitioner’s custody rights under the law of Peru; and (3) Petitioner had been
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exercising those rights at the time of removal. De Vasconcelos, 2011 WL 806096, at *1 (citing
Edoho, 2010 WL 3257480, at *4; Van Driessche, 466 F. Supp. 2d at 841.
Although not defined in the Convention, a child’s habitual residence is the place one
would call his customary residence. Friedrich v. Friedrich, 983 F.2d 1396, 1401 (6th Cir. 1993)
(Friedrich I). A person can have only one habitual residence. Id. The Court must look back in
time and not forward in determining a child’s habitual residence. Id. It is undisputed that the
children were habitual residents of Peru before they left with their father in June of 2013.
Petitioner is also required to prove that the removal of the children was in breach of her
custody rights under Peruvian law. The removal or retention of a child is wrongful where “it is
in breach of custody attributed to a person… under the law of the [country] in which the child
was habitually resident immediately before the removal or retention,” and where, “at the time of
removal or retention those [custodial] rights were actually exercised…” CONVENTION, art. 3.
The Peruvian Civil Code titled “Codigo de Los Niños y Adolescentes” provides that when the
parents are separated, “the custody of the children or adolescents is determined by mutual
agreement between both parents, taking into consideration the child’s and adolescent’s opinion.”
Codigo de Los Niños y Adolescentes, art. 81 (Dkt. #21, Ex. 2 at 3). If there is no agreement,
“custody shall be resolved by the specialized judge, ordering the measures required to comply
with such order.” Id.
The Hague Convention makes a distinction between rights of custody and rights of
access.
The Hague Convention’s provisions on the Civil Aspects of International Child
Abduction define “rights of custody” as those rights relating to the care of the person of the child
and, in particular, the right to determine the child’s place of residence. CONVENTION, art. 5.
“[R]ights of access,” on the other hand, include the right to take a child for a limited period of
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time to a place other than the child’s habitual residence. Id. Petitioner and Respondent in this
case entered into a Certificate of Conciliation, which provides that Petitioner has primary
custody of the children, and grants Respondent visitation with the children in the United States,
as follows:
only for the mid-year holidays (July) and in the summer holidays for two weeks
maximum, after which they must be returned by his [sic] father… to this city
(Lima-Peru) to continue [in] the care of the mother…
(See Dkt. #1, Ex. 7 at 7). It is also undisputed that Petitioner has primary custody of the children,
and was exercising her custody rights at the time the children were removed.1
Thus, the Court determines that Petitioner has satisfied her burden to show by a
preponderance of the evidence that she had custody rights, and that the children were removed
from Peru in violation of those rights. The Court will now turn to the various exceptions to
removal to see if any apply in this case.
Affirmative Defenses
Once the Petitioner establishes that the Respondent wrongfully removed the Child from
his habitual residence, the Child must be returned unless the Respondent can establish one of the
Convention’s narrow affirmative defenses. Sealed Appellant, 394 F.3d at 343 (citation omitted).
When an action for return of a child is commenced more than one year after the removal
or wrongful retention of the child and the child has become ‘well-settled’ in her new
environment, the Court is not required to order the return of the child. De Vasconcelos, 2011
WL 806096, at *4 (citing CONVENTION, art. 12). The well-settled exception must be proven by
Respondent by a preponderance of the evidence. 42 U.S.C. § 11603(e). In the present case,
Respondent wrongfully retained the children on approximately July 10, 2013, after the expiration
1
During his closing argument, Respondent agreed that Petitioner had met her burden to demonstrate that the
children were wrongfully removed or retained within the meaning of the Convention.
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of the two weeks indicated on the children’s travel documents. Although there was evidence
presented at the trial that Petitioner agreed to allow the children to remain in the United States
for an additional period of time, there was no evidence that she agreed to allow the children to
remain in the United States indefinitely. Petitioner’s proceedings in this Court were filed on July
7, 2014, which is within the one year time frame. Accordingly, the well-settled objection does
not apply to the present case.
Next, the Court is not required to order the return of the children if Petitioner was not
actually exercising her custody rights at the time of the removal or retention, or had consented to
or subsequently acquiesced in the removal or retention. CONVENTION, art. 13(a). “Under Article
13(a), ‘[t]he consent defense involves the petitioner’s conduct prior to the contested removal or
retention, while acquiescence addresses whether the petitioner subsequently agreed to or
accepted the removal or retention.’” Larbie, 690 F.3d at 308 (citing Baxter v. Baxter, 423 F.3d
363, 371 (3d Cir. 2005)). The focus of the inquiry is the petitioner’s subjective intent, as
“evidenced by the petitioner’s statements or conduct, which can be rather informal.” Id. (citing
Nicolson v. Pappalardo, 605 F.3d 100, 105 (1st Cir. 2010)). “In examining a consent defense, it
is important to consider what the petitioner actually contemplated and agreed to in allowing the
child to travel outside its home country. The nature and scope of the petitioner’s consent, and
any conditions or limitations, should be taken into account.” Id. (citation omitted).
It is undisputed that Petitioner was exercising her custody rights at the time of the
removal and wrongful retention. Although there was some testimony that Petitioner consented to
the removal, it is clear that Petitioner consented to the removal for a two week period, as set forth
in the Certificate of Conciliation and on the travel paperwork of the children. The evidence also
showed that Petitioner consented, or acquiesced, to a limited extension of the travel period for
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either a week or 21 days; however, the testimony was clear that Petitioner never intended for the
children to leave Peru and live in the United States indefinitely.
While there was some
suggestion that the plan was to bring the children to the United States to establish their
permanent residency, and then subsequently bring Petitioner to the United States as well to
obtain permanent residency in the United States, the testimony was equally clear that the
children went to the United States on vacation and always intended to return to Peru to finish
their final examinations in school. The children brought only two weeks of clothing with them,
left many of their possessions in Peru, and obtained special permission from their school to take
their final examinations upon their return from their vacation in the United States. There is no
indication that Petitioner’s subsequent agreement to the extension of the vacation was consent to
allow the children to permanently live in the United States. Accordingly, the consent defense
has not been established by a preponderance of the evidence, and will not bar the return of the
children to Peru.
Next, the Court is not required to order the return of the children if the Respondent shows
by clear and convincing evidence that there is a “grave risk that [their] return would expose the
child[ren] to physical or psychological harm or otherwise place the child[ren] in an intolerable
situation.” CONVENTION, art. 13(b); 42 U.S.C. § 11603(e). “A grave risk of harm can be
established when return of the child to the country of habitual residence puts the child in
‘immediate danger prior to resolution’ of the underlying custody dispute.’” Gallardo v. Orozco,
954 F. Supp. 2d 555 (W.D. Tex. 2013). “The grave risk exception is to be narrowly construed.”
Taylor v. Hunt, No. 4:12CV530, 2013 WL 620934, at *8 (E.D. Tex. Jan. 11, 2013) (citing
England, 234 F.3d at 270-71).
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“[A] grave risk or intolerable situation exists where return of the child would send the
child to a zone of war, famine, or disease, or in cases of serious abuse or neglect.” Taylor, 2013
WL 620934, at *8 (citing Vazquez v. Estrada, 2011 WL 196164, 5 (N.D. Tex. 2011) (finding no
grave risk exception because of the “spiraling violence and surge in murders in Monterrey” and
because of “specific violent acts that have been committed in the school [the child] attended in
Monterrey and in the neighborhood where Petitioner resides.”)). Due to this high standard,
findings of grave risk are rare. See, e.g., England, 234 F.3d at 271 (finding that the alleged
“grave risk of psychological harm if [the child] should be separated from [the abducting parent]”
is “inapposite to the ‘grave risk’ determination” under the guidance of other Hague Convention
cases); Gallardo, 954 F. Supp. 2d at 576 (holding that unsupported allegations of petitioner’s
prostitution “fall extremely short of reaching the high threshold necessary to establish the grave
risk of harm affirmative defense.”); Sanchez v. Sanchez, No. SA-12-CA-568-XR, 2012 WL
5373461, 3 (W.D. Tex. Oct. 30, 2012) (finding that evidence of past physical abuse and drug use
by the petitioner mother’s ex-boyfriend were insufficient for finding of grave risk where the
petitioner testified she had ended the relationship and the children would therefore not be
exposed to those conditions upon their return to Mexico); Taylor, 2013 WL 620934, at *8
(holding undisputed evidence that Petitioner “would leave [the child] with other adults… for
extended periods of time in order to work as a dancer” did not rise to the level of grave risk);
Edoho, 2010 WL 3257480 (finding that respondent failed to meet burden on grave risk defense
when there was conflicting testimony regarding abuse of the child).
Respondent and his witnesses testified that Comos, a county in Lima, Peru, where the
children and Petitioner reside is a beautiful, but dangerous place. Respondent testified that when
he was ten-years-old, his cousin was kidnapped and strangled near the school, which is five
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minutes away from the school where the children are enrolled. Respondent testified that the
drivers in Comos are negligent, and that the children witnessed a car accident in which a small
child was hit and killed by a car. Respondent testified that there is a lot of criminal activity, and
that on many occasions cell phones and wallets are stolen from Petitioner and other family
members. Ms. Anglas testified that she feared for all children living in Comos. Ms. Ramirez
testified that children are not in danger in Comos, that they live in a suburb area where they have
many friends and a police officer that lives nearby. Ms. Ramirez agreed that some bad things
have happened to her family members, but that they were many years ago. Based on this
evidence, the Court finds that Respondent has not met his burden to show by clear and
convincing evidence that Comos, Lima, Peru is a dangerous place.
Respondent also testified that returning the children to Peru would be a grave risk to the
children because Petitioner often drank alcohol and left the children either unattended or with
another adult so that she could go to parties. Respondent testified that the children have seen
their mother intoxicated to the point where she could not stand up or take care of the children.
Respondent also testified that on one occasion Petitioner left A.C.C.M.M. alone in the home
while she attended a party. Petitioner agreed that she had left A.C.C.M.M. in the home while she
attended a party, but stated that another adult, Mr. Diaz, stayed overnight with her, and
A.C.C.M.M.’s grandmother arrived in the morning to pick her up. Mr. Diaz agreed that he
stayed overnight with A.C.C.M.M. on that occasion, and that he has seen Petitioner consume
alcohol at parties. Respondent also testified that Petitioner hit one of the children with a belt on
one occasion. Petitioner testified that she has never hit the children with a belt or spanked the
children.
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As this Court has noted previously, the question before the Court is not which parent
would be the better parent. Stewart v. Marrun, No. 4:09cv141, 2009 WL 1530820, at *4 (E.D.
Tex., May 29, 2009). At the trial, the Court informed both parents that, in the Court’s opinion,
they were both loving parents who both had the best interest of the children at heart. This
testimony by Respondent is simply not enough to establish by clear and convincing evidence that
the children would be in grave risk of physical or psychological harm if returned to Peru, or that
Peru cannot provide adequate protection to the children. The issue of custody must be decided in
Peru.
Finally, the Hague Convention also permits the Court to refuse to return a 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 her views. CONVENTION, art. 13. It is not enough that the child
has maintained friendships, prefers her new residence over the country of removal, or enjoys a
more stabilized situation to support a finding that the child is mature enough for the Court to take
into account her views. England v. England, 234 F.3d 268, 272 (5th Cir. 2000) (finding 13 yearold had not attained sufficient maturity). No age is too young or old enough as a matter of law
for the exception to apply, but must be determined on a case-by-case basis. See id.
In this case, the children remained outside the courtroom during the trial and were
represented by an attorney ad litem during the proceedings. At the close of the parties’ cases, the
Court questioned both children separately in camera. The attorney ad litem was present for this
questioning and given the opportunity to question her client.
The Court finds that it is not appropriate to take into account A.A.M.M. or A.C.C.M.M.’s
view here. During the in camera interview, A.A.M.M., nine-years-old, was very timid, softspoken, and unaware of the purpose of the court proceedings. A.A.M.M. testified that life in
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Peru was both fun and not fun, since her mother would allow them to have sleepovers at the
house and take them to the movies. A.A.M.M. testified that when she came to the United States
she thought they were going on vacation with their father and would return to Peru after a few
weeks. Due to the young age, immaturity, and timidity of A.A.M.M., the Court did not reach the
question of whether she would prefer to live in the United States or Peru.
A.C.C.M.M., twelve-years-old, testified that when she came to the United States with her
father, she thought it was a vacation, but that she was thinking about staying in the United States.
A.C.C.M.M. stated that she has a very good relationship with her mother, in that she tells her
everything and talks to her about her life. She also testified that she gets along fine with her
father, and he helps her with school. However, of concern to the Court is that when asked where
she would like to live, A.C.C.M.M. stated that she wants to live with her father and her mother in
the United States as one family in one house. A.C.C.M.M. did not appear to grasp that her
mother lived in Peru, and, at least for the present time, was not coming to the United States.
Further, it was not clear that she understood the purpose of the proceedings, and that gravity of
her choice to live in the United States. A.C.C.M.M.’s stated reason for wanting to live in the
United States was because she liked the school here better, and it was not as dangerous as it was
in Peru. The Court finds that A.C.C.M.M. is a quiet, well-spoken, and articulate young lady who
clearly cares about her parents and her sister very much, but she was confused by the
circumstances producing the litigation, and did not understand the choice she was being asked to
make. A.C.C.M.M.’s desired outcome is one that is not possible given the circumstances of her
mother’s citizenship in Peru and the fact that her father has a girlfriend here in the United States,
and A.C.C.M.M. did not grasp the impossibility of the situation even after probing by the Court.
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“Like the grave risk exception, the ‘age and maturity’ exception is to be applied
narrowly.” England, 234 F.3d at 272 (citing 42 U.S.C. § 11601(a)(4)); see also Tsai-Yi Yang v.
Fu-Chiang Tsui, 499 F.3d 259, 278 (3d Cir. 2007) (“The exceptions are construed narrowly so
their application does not undermine the express purposes of the Convention.”) (internal
quotations omitted). “[A] ‘court must apply a stricter standard in considering a child’s wishes
when those wishes are the sole reason underlying a repatriation decision and not part of some
broader analysis,’ such as whether the child would suffer a grave risk of harm if returned to his
or her habitual residence.” Tsai-Yi Yang, 499 F.3d at 278 (citing De Silva v. Pitts, 481 F.3d
1279, 1286 (10th Cir. 2007)). The district court in Tsai-Yi Yang found that a ten-year-old child
was “bright, intelligent and pleasant,” but that the reasons she expressed for wanting to remain in
the United States “did not include particularized objections to returning to Canada, but rather it
indicated that she possessed a more generalized desire to remain in Pittsburgh similar to that of
any ten-year-old having to move to a new location.” 499 F.3d at 279. The reasons that the child
gave included “liking her school, her preference for living in a house rather than a small
apartment, and having friends and brothers.” Id. While the Fifth Circuit has recently upheld the
decision of the district court finding that a thirteen-year-old was sufficiently mature to establish
the mature child defense, the district court there found that the child specifically expressed that
she did not want to visit her father while he was in the United States, demonstrated an
understanding of the proceedings and of her right to state her preferences, and stated a desire to
remain in the United States with her mother and stepfather. Vasconcelos v. Batista, 512 F.
App’x 403 (5th Cir. 2012). Here, the Court finds that neither of the children understood the
proceedings and their right to state their preferences, and did not unequivocally express a desire
to remain in the United States for any reason other than generalized affinity for this country after
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having lived here for the last year. Thus, the Court finds that Respondent failed to meet his
burden to establish that one or more of the affirmative defenses apply to prevent the return of the
children in this case.2
CONCLUSION
The Court’s role in this matter is limited to determining only whether the children were
wrongfully removed from Peru.
See 42 U.S.C. § 11601.
Questions regarding custody,
Petitioner’s alleged wrongful conduct, or the best interests of the children are a matter for the
Peruvian courts, and not the undersigned. Because the Court finds that there was wrongful
removal here, and none of the affirmative defenses apply in this case, the Court finds that
Petitioner’s Verified Complaint and Petition for Return of the Children on August 5, 2014 (Dkt.
#1) is GRANTED, and the children should be immediately returned to Peru in the care of
Petitioner.
The Court further finds that, pursuant to 42 U.S.C. § 11607, Respondent is required to
bear the costs incurred by or on behalf of Petitioner in this case, including court costs, legal fees,
foster home or other care during the course of proceedings in the action, and transportation costs
related to the return of the child. 42 U.S.C. § 11607(b)(3).
IT IS SO ORDERED.
2
Respondent did not raise the exception that fundamental principles of human rights and fundamental freedoms
would not permit the children’s return. CONVENTION, art. 20; 42 U.S.C. § 11603(e). This exception simply has not
been shown in this case.
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SIGNED this 8th day of August, 2014.
___________________________________
AMOS L. MAZZANT
UNITED STATES MAGISTRATE JUDGE
17
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