Ostos v. Vega

Filing 35

MEMORANDUM OPINION AND ORDER: For the reasons herein stated, the court grants the Petition for Return of Child to Petitioner and orders that the child, J.G.V., be returned forthwith to Mexico to the custody of his mother, Petitioner Berenice Vega Ostos, at the conclusion of the final hearing conducted by the court on June 10, 2015. The court orders that Respondent Jose Alfredo Vega immediately release and surrender J.G.V. to Petitioner. (Ordered by Judge Sam A Lindsay on 6/10/2015) (tln)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
BERENICE VEGA OSTOS,
Petitioner,
v.
JOSE ALFREDO VEGA,
Respondent.

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Civil Action No. 3:14-CV-3935-L

MEMORANDUM OPINION AND ORDER
Before the court is the Petition for Return of Child to Petitioner (“Petition”) (Doc. 1), filed
by Petitioner Berenice Vega Ostos1 (“Ms. Vega Ostos” or “Petitioner”) on November 6, 2014. The
court makes the following findings of fact and conclusions of law pursuant to Rule 52(a) of the
Federal Rules of Civil Procedure2 following a bench trial held on March 9 and 10, 2015, at which
Petitioner and Respondent Jose Alfredo Vega (“Mr. Vega” or “Respondent”) were represented by
counsel. For the reasons that follow, the court grants the Petition for Return of Child to Petitioner
and orders that the child, J.G.V., be returned forthwith to Mexico to the custody of his mother,
Petitioner Berenice Vega Ostos.

1

In its February 11, 2015 memorandum opinion and order denying Respondent’s Motion to Dismiss, the court
inadvertently misspelled Petitioner’s first name as “Bernice.”
2

In preparing this memorandum opinion and order, the court carefully considered the trial testimony and
exhibits and applied the standard in this circuit for findings of fact and conclusions of law. See Century Marine Inc. v.
United States, 153 F.3d 225, 231 (5th Cir. 1998) (discussing standard for findings and conclusions under Rule 52). In
accordance with that standard, the court has not set out its findings and conclusions in “punctilious detail” or “slavishly
traced the claims issue by issue and witness by witness, or indulged in exegetics, parsing or declaiming every fact and
each nuance and hypothesis.” See id. The court instead has limited its discussion to those legal and factual issues that
form the bases of its decision. Id.
Memorandum Opinion and Order - Page 1

I.

Procedural Background
This case involves the alleged wrongful removal or retention of a child under the Hague

Convention on the Civil Aspects of International Child Abduction (“Convention”), Oct. 25, 1980,
T.I.A.S. No. 11670, S. Treaty Doc., No. 99-11, which is implemented in the United States through
the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. § 9003 et seq. Petitioner
brought this action on November 6, 2014, requesting that the court order the return of her eight-year
old child J.G.V. to his “habitual residence” of Mexico. In her Petition, Ms. Vega Ostos contends that
Respondent, her former husband, wrongfully removed J.G.V. from Mexico to the United States in
July 2014 or retained the child after his July 2014 summer visitation in violation of her custodial
rights under Mexican law and the custody agreement contained in the parties’ Final Decree of
Divorce (“Divorce Decree”) entered on November 8, 2012, by the 302nd Judicial District Court,
Dallas County, Texas. Ms. Vega Ostos seeks an order requiring Mr. Vega to immediately return
J.G.V. to Mexico. Ms. Vega Ostos also seeks to recover her attorney’s fees and costs incurred as
a result of this action. According to Ms. Vega Ostos, the parties’ Divorce Decree gives her the
exclusive right to designate J.G.V.’s primary residence without regard to geographic location; J.G.V.
was a habitual resident in Mexico since shortly after his birth until his wrongful removal from
Mexico or retention by Mr. Vega; and she was exercising her custodial rights at the time of the
wrongful removal or retention.
On December 30, 2014, Mr. Vega moved to dismiss the action, contending that this is not
a case of a parent crossing the border in search of a more sympathetic forum and does not involve
the abduction of a child but instead involves an ongoing dispute between two managing conservators
concerning the well-being of their child. In his motion, Mr. Vega asserted that he has lived in Dallas

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County, Texas, for several years and has never hidden from Ms. Vega Ostos the whereabouts of
J.G.V., who is currently residing with him and attending school in Dallas County, Texas. Mr. Vega
therefore argued that this action does not fall under the ICARA and instead merely involves the issue
of whether a modification of the parties’ custody agreement should be granted by the 302nd Judicial
District Court, Dallas County, Texas, which entered the parties’ Divorce Decree. Mr. Vega asserted
that he filed a motion with the state court to modify the parties’ parent-child relationship as to J.G.V.
on August 12, 2014. According to Mr. Vega, the 302nd Judicial District Court has “continuing,
exclusive jurisdiction” over J.G.V.’s welfare and best interests. Mr. Vega therefore contended that
Ms. Vega Ostos should have sought to enforce her parental rights under the Divorce Decree in the
302nd Judicial District Court, rather than federal court, and he requested that the court defer to the
proceeding pending in the 302nd Judicial District Court on his motion to modify the parties’ parentchild relationship as to J.G.V.
Mr. Vega further asserted that, even assuming that the ICARA applies, Ms. Vega Ostos
cannot establish the requisite prima facie case under the ICARA because: (1) J.G.V. is not a habitual
resident of Mexico; and (2) he is not in breach of any custody or court order. According to Mr.
Vega, he is a joint managing conservator under the Divorce Decree and, as such, has the right to
ensure that J.G.V. is not placed in harm’s way. In addition, Mr. Vega contended that he has
affirmative defenses under Article 13 of the Convention that would allow J.G.V. to remain in his
custody in the United States. In this regard, Mr. Vega contended that returning J.G.V. to Mexico
would subject him to a grave risk of physical or psychological harm or otherwise place J.G.V. in an
intolerable situation. Mr. Vega also objected to J.G.V returning to Mexico on the grounds that
J.G.V. has reached an age and level of maturity appropriate for the court to take into account his

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view as to whether he should be returned to Mexico. Mr. Vega therefore requested that the Petition
filed by Ms. Vega Ostos be denied and dismissed. Mr. Vega also seeks to recover attorney’s fees
and costs of suit.
On February 11, 2015, the court denied the motion to dismiss and set the case for trial but
permitted Mr. Vega to retain custody of the child pending resolution of this case. In denying the
motion to dismiss, the court concluded that Ms. Vega Ostos had alleged sufficient facts to state a
claim for wrongful removal or retention and return under the Convention and advised the parties that
the facts supporting Ms. Vega Ostos’s claim for wrongful removal and Mr. Vega’s affirmative
defenses under the Convention would need to be developed in an evidentiary hearing. The court,
therefore, set the case for trial and directed Mr. Vega to file an answer to the Petition that included
any defenses he may have to Ms. Vega Ostos’s claim for wrongful removal or retention and return
under the Convention.
On February 23, 2015, Respondent filed his Answer in which he denied the allegations in the
Petition. In his Answer, Respondent contends that Petitioner cannot establish a prima facie case
necessary to prevail and asserts affirmative defenses under articles 12, 13, and 20 of the Convention.
With respect to Petitioner’s prima facie case, Respondent contends that Petitioner was not exercising
her custody rights when Respondent brought J.G.V. to the United States; that Petitioner consented
or acquiesced to J.G.V. moving to the United States; that Respondent has an affirmative duty under
the parties’ custody agreement to protect J.G.V. from harm and, therefore, was not in breach of any
court order when he brought J.G.V. to the United States; and that J.G.V.’s habitual residence is
Dallas County, Texas, not Mexico.

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In support of his affirmative defenses, Respondent contends in his pretrial memorandum as
follows:
In July 2014, Mr. Vega traveled to Mexico during his summer visitation rights under
the Final Divorce Decree. Mr. Vega learned that his son was physically and
emotionally abused under the care of the Petitioner. Mr. Vega also learned that JGV
was used in illegal criminal activities by the Petitioner and/or her boyfriend/husband
and was made to travel in bullet proof cars and [] to travel seventeen (17) hours to
the U.S. border and drop off car(s) and then fly back home. Mr. Vega further learned
that his son was being locked in the bathroom for up to thirty (30) days as a
“punishment” and was allowed to come out only for eating meals, to sleep at night
and to go to school. While in Mexico, JGV, Petitioner and Petitioner’s
boyfriend/husband were kidnap[]ed and held for ransom for two days while in the
care of Petitioner and the boyfriend.
Resp’t’s Pretrial Br. 3. Respondent further asserts that “on or about August 12, 2014, [he] filed a
Modification of a Parent-Child Relationship in the 302nd Judicial District Court, Dallas County, in
accordance with the Texas Family Code, which is pending at this time.” Id. Respondent continues
to maintain that the ICARA does not apply because the custody dispute between him and Petitioner
is between two managing conservators. On the other hand, Respondent maintains that Petitioner is
“barred [from] possessive or join[t] managing conservatorship to [J.G.V.]” because Petitioner’s new
husband is involved in illegal activity and modification of the parties’ custody agreement “is
necessary to protect [J.G.V.] from child neglect and/or abuse.” Resp’t’s Answer 4-5.
On March 9 and 10, 2015, the court conducted a bench trial regarding Ms. Vega Ostos’s
Petition under the Convention for the return of J.G.V. and Mr. Vega’s affirmative defenses to the
Petition. The court heard testimony from Ms. Vega Ostos, Mr. Vega, and Marisol Garcia (Ms.
Garcia”). The court also conducted an in camera interview of J.G.V. with the assistance of a
Spanish-speaking interpreter.

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In addition to witness testimony, the parties presented documentary evidence and arguments
during the bench trial through their counsel and filed pretrial briefs in support of their respective
positions. The court preadmitted Petitioner’s Exhibit Nos. 2, 3, 5, 8 and Respondent’s Exhibit Nos.
1 through 4.3 During the course of the trial, the court also admitted Petitioner’s Exhibit Nos. 4, 6,
12, 14, 15, and 18, and Respondent’s Exhibit No. 5. Petitioner’s Exhibit No. 1 was initially admitted
for the limited purpose of showing that Petitioner submitted an application to the Mexican Central
Authority to start the process of getting J.G.V. returned to Mexico. During the course of the trial,
however, Petitioner sought to have Exhibit No. 1 admitted beyond the previously agreed upon
limited purpose, and the court admitted the exhibit subject to Respondent’s objection. The court
sustained Respondent’s objections to Petitioner’s Exhibit Nos. 19 and 20 and denied Petitioner’s
request to admit these exhibits into evidence. All other exhibits of Petitioner (11, 13, 16, 17) were
admitted subject to Respondent’s objections, which the court took under advisement. For objections
to exhibits or other evidence that were taken under advisement, the court explained to the parties
that, if the evidence is discussed in the court’s findings of fact and conclusions of law and is relevant
to the court’s decision, the objection is overruled. The court further explained that, for evidence not
discussed, the court either sustained the objection to the evidence or concluded that it was not
necessary for its findings of fact and conclusions of law.
On June 10, 2015, the court conducted a brief final hearing to give the parties an opportunity
to make any additional arguments they wished to present to the court before the court issued its
ruling in this case. No additional evidence was heard by the court during this hearing, and nothing

3

Petitioner’s Exhibit No. 1 and Respondent’s Exhibit No. 8 are the same—the parties’ Divorce Decree that
contains their custody agreement with respect to J.G.V.
Memorandum Opinion and Order - Page 6

that the court heard during this hearing affected its determination that J.G.V. should be returned
forthwith to Mexico to the custody of his mother.
The facts contained herein are either undisputed, or the court has made the finding based on
the credibility or believability of each witness. In doing so, the court considered all of the
circumstances under which the witness testified, including: the relationship of the witness to
Petitioner or Respondent; the interest, if any, the witness has in the outcome of the case; the
witness’s appearance, demeanor, and manner of testifying while on the witness stand; the witness’s
apparent candor and fairness, or the lack thereof; the reasonableness or unreasonableness of the
witness’s testimony; the opportunity of the witness to observe or acquire knowledge concerning the
facts to which he or she testified; the extent to which the witness was contradicted or supported by
other credible evidence; and whether such contradiction related to an important factor in the case or
some minor or unimportant detail. When necessary, the court comments on the credibility of a
witness or the weight to be given to a witness’s testimony. To the extent any conclusion of law is
deemed to be a finding of fact, it is adopted as such; and likewise, any finding of fact that is deemed
to be a conclusion of law is so adopted.
II.

Findings of Fact
A.

Witness Credibility and Weight Given to Testimony

During the course of the bench trial, the court had the opportunity to observe at length the
demeanor of the witnesses and assess their credibility. Petitioner, J.G.V.’s mother, was the first
witness to testify. She provided extensive testimony and factual detail in support of her Petition
regarding her relationship with Respondent and the events that transpired after J.G.V.’s birth up until
the trial. Petitioner, whose first language is Spanish, testified in English. Petitioner was articulate

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and answered questions on direct examination and cross-examination without hesitation and with
specificity by providing dates and detailed testimony regarding events that occurred over a ten-year
period. As a result, the court found her version of the events, that transpired before and after this
case was filed, to be credible and reasonable. Overall, Petitioner was far more credible and
believable than Respondent, J.G.V’s father. Petitioner came across as genuinely concerned for
J.G.V.’s overall well-being, and her testimony on cross-examination was consistent with that
previously given during her direct examination. In addition, she provided plausible explanations in
response to the questions asked of her regarding J.G.V., her relationship with Respondent, and the
events in question.
Respondent was called as a witness in Petitioner’s case-in-chief and only testified briefly.
The majority of his testimony regarded matters that are either immaterial or only somewhat relevant
to Plaintiff’s claim or Respondent’s defenses. Respondent, whose first language is also Spanish,
testified through an interpreter. This, however, did not affect the court’s ability to observe his
demeanor and assess his credibility. Unlike Petitioner, Respondent was a reluctant witness and
unable to recall many details regarding significant dates, events, and persons who allegedly provided
counseling of some sort to J.G.V. before Ms. Garcia. Respondent’s inability on numerous occasions
to readily answer questions posed to him and recall details causes the court to question his overall
ability to recall key events. Respondent also had an unsettling and distracting smirk on his face the
entire time that Petitioner testified, which undermined his credibility and led the court to believe that
J.G.V.’s removal from Mexico and the custody suit was motivated by Respondent’s desire to spite
Petitioner. Because the court found Petitioner to be far more credible, the court attributed more
weight to her testimony than Respondent’s testimony.

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Given the level of factual detail and consistency in Petitioner’s testimony, the court also
attributed more weight to her testimony than Ms. Garcia’s and J.G.V.’s testimony, particularly when
there were inconsistencies in the witnesses’ testimony. Unlike Ms. Garcia, who only had five
counseling sessions with J.G.V., without his father, in January and February 2015, Petitioner is
intimately familiar with her son because he resided with her his entire life before being removed
from Mexico in July 2014. Further, Ms. Garcia’s diagnosis and counseling of J.G.V. are based
entirely on the incomplete and inconsistent information provided by J.G.V., whom the court finds
to be insufficiently mature, and Respondent, who had a motive to influence the counseling sessions,
as he had previously filed a state court action to modify custody and was aware that Petitioner had
filed this federal action to return J.G.V. to Mexico. While Ms. Garcia does not “have a dog in this
fight,” she was less cooperative and provided more nonresponsive answers to questions on crossexamination, particularly when her diagnosis, opinions, and the sources of information that formed
the bases of her opinions were scrutinized by Petitioner. Additionally, for the reasons herein
explained, the court concludes that Ms. Garcia’s testimony and opinions are based on incomplete
or insufficient data, and, thus, they do not have the requisite indicia of reliability under Rule 702.
As previously noted, the court also conducted an in camera interview of J.G.V. at the request
of the parties to determine whether he is of an age and maturity that his preference as to place of
residence should be taken into account. The court found J.G.V. to be an inquisitive and fairly welladjusted child given the circumstances. J.G.V., however, had difficulty explaining simple concepts
like the difference between the truth and a lie.4 The court therefore did not take his testimony under
4

When the court asked J.G.V. to explain what a lie meant, he responded that “sooner or later lies come out to
reveal themselves.” When the court inquired again what a lie meant to him, J.G.V. similarly responded “like I was telling
you when something later on comes to light.” Id. When the court asked the question a different way—“But if somebody

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oath. J.G.V. also did not understand the purpose of the proceedings in this case. J.G.V. incorrectly
believed or was led to believe by his father that, if his father won this case, his mother would be able
to stay and live in the United States.
Additionally, certain statements by J.G.V. led the court to conclude that he had been unduly
influenced by Respondent and members of Respondent’s family. J.G.V. description of how he
would hide to talk to his mother in private on the telephone to avoid scrutiny from his uncles5 is
similar to and consistent with Petitioner’s testimony that she had sneak to talk in private on the
telephone without Respondent’s knowledge because he required her to talk using the speaker on the
telephone, so he could listen to her conversations.
It was also apparent from J.G.V.’s testimony and recollection of certain events and persons
that his comprehension of time and space is not fully developed. When asked how long he had to
stay in the bathroom, he did not specify an amount of time in minutes or days but simply said that
he was only be let out to eat, go to bed, or go to school. In some instances, he seemed to be able to
recall with precision events that occurred years ago, but he could not remember the names of his best
friends in Mexico who he had not seen for several months. Finally, some of the information that
J.G.V. provided to the court regarding critical issues differed from and was inconsistent with the
information that he provided to Ms. Garcia or Respondent. For example, according to Ms. Garcia

says this is true and that is not true, do you know what that means?”—J.G.V. responded “Huh? Uh-uh, no.” The court
has interacted with a number of children between the ages of six and nine and is certainly able to determine whether a
child in this age group understands the difference between the truth and a lie. J.G.V.’s inability to adequately explain
the difference between these two basic concepts is a factor in the court’s determination regarding J.G.V.’s level of
maturity and Respondent’s maturity-of-child defense.
5

J.G.V. told the court that, when talking to his mother on the telephone, he would go into his bedroom and
close and lock the bedroom door to avoid his uncles’ critique of everything he said to his mother.

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and Respondent, J.G.V. was having nightmares when he first started seeing Ms. Garcia. Ms. Garcia,
and presumably Respondent, attributed the nightmares to the random kidnapping incident that
occurred three years earlier. J.G.V., however, told the court that he had not had a nightmare since
he lived in Cuernavaca, Mexico, which was two or three years ago according to Petitioner’s
testimony.
Additionally, J.G.V. believed that he had resided in Acapulco after living in Cuernavaca,
before moving to Monterrey, where he lived when his father removed from Mexico to the United
States. As explained below, however, J.G.V.’s mother testified that they moved from Acapulco to
Cuernavaca shortly after the kidnapping, and that they then moved to Monterrey. This testimony by
Petitioner is not in dispute.
J.G.V. also told Ms. Garcia that he had to go to school with a bruise on his face or busted lip,
and Ms. Garcia concluded that this detail made his account of the one-time slap by his stepfather
more believable. J.G.V.’s account to the court was somewhat different. J.G.V. told the court that
the same incident with his stepfather occurred before he went on vacation with his father, and that
he had to go on vacation, not school, with a busted lip. Respondent, however, never reported seeing
a bruise on J.G.V.’s face. Similarly, there was no evidence that anyone at J.G.V.’s school in Mexico
ever reported seeing a bruise on his face. For all of these reasons, the court gives little, if any,
weight to J.G.V.’s testimony in deciding the issues in this case. For the same reason, the court
discounts Ms. Garcia’s testimony and opinions that are based on statements that J.G.V. made to her
or Respondent.

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B.

The Parties’ Upbringing in Acapulco, Mexico

Petitioner is a twenty-eight-year-old Mexican citizen, who was born in Ciudad Juarez,
Chihuahua. Petitioner now lives in Monterrey, Mexico, with her husband Jorge, who she married
in August 2013. Petitioner resided with her family in Acapulco, Mexico, until the age of nineteen,
when she traveled to Texas for the first time on May 28, 2005, on a student visa to attend summer
school at Tyler Junior College, where she studied to be a registered nurse. Petitioner’s immediate
family still resides in Acapulco.
Respondent was born in California and is a United States citizen. He is twenty-seven years
old.

Most of Respondent’s family members currently reside in Acapulco, Mexico, where

Respondent lived most of his life with his family before moving to Phoenix, Arizona, on June 1,
2005. Respondent’s family joined him temporarily in Phoenix, Arizona, a short time later.
Petitioner and Respondent first met in 2004 and began dating while they were both living in
Acapulco. Petitioner was eighteen-years old, and Respondent was seventeen-years old at the time.
C.

The Parties’ Temporary Residence in Phoenix, Arizona

As noted above, Petitioner left Acapulco, Mexico, to attend college in Tyler, Texas, in the
summer of 2005, and Respondent moved to Phoenix a couple of days later. On July 17, 2005,
Petitioner went to Phoenix to visit Respondent for his birthday and stayed one week before returning
to Tyler. After completing her summer school classes, Petitioner returned to Phoenix to visit
Respondent for another week and decided to extend her stay after learning that her parents were
upset about her traveling to Phoenix to see Respondent without their permission.
Respondent testified that he moved or returned to the United States because he had
previously spent some time in California while on vacation and liked it. The parties dispute why

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Respondent and his family made the sudden decision to move to the United States when they did.6
Except for a couple of brothers, Respondent’s family has since returned to Acapulco. Respondent
currently lives in Dallas, Texas, with his two brothers and his brother’s wife.
D.

J.G.V.’s Birth in Phoenix

Petitioner became pregnant with J.G.V. in September 2005. Petitioner and Respondent
married on January 14, 2006, in Phoenix. J.G.V. was born in Phoenix on June 27, 2006. Soon after
J.G.V. was born, Petitioner was almost twenty-years old at the time, and Respondent was almost
nineteen-years old. After J.G.V. was born, the couple’s relationship changed and began to
deteriorate. Petitioner testified that Respondent became possessive and jealous and did not want to
spend time with J.G.V. Respondent instead preferred to give the child to his parents, so he could
spend time with Petitioner alone, and he became upset when Petitioner spent time caring for J.G.V.
rather than devoting all of her attention to him. In December 2006, Respondent became angry with
Petitioner for wanting to bring a portable crib to Respondent’s uncle’s house where everyone was
gathering for Christmas dinner. Respondent pulled her by the hair and threatened to beat her if she
called the police.

6

The court did not find Respondent’s stated reason for suddenly moving to the United States in 2005 to be
credible; however, the court only considers Petitioner’s testimony, that Respondent and his family moved to the United
States to avoid the revenge of a family physically harmed by Respondent or a relative of Respondent, for the limited
purpose of determining that Respondent’s move to the United States in 2005 was not intended at the time to be
permanent; rather, Respondent’s intent, according to Petitioner’s testimony, which was not rebutted by Respondent, was
to return to Acapulco as soon as it was safe for him to do so. In other words, there is no evidence that Respondent’s
move to the United States in 2005 was ever intended to be permanent. In making this determination, the court only
considered Petitioner’s testimony that was based on what Respondent told her regarding his reason for moving to the
United States. Respondent’s hearsay objection to Petitioner’s testimony regarding what others told her is therefore moot.

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E.

Petitioner’s Return to Acapulco, Mexico, with J.G.V.

After the Christmas incident and learning why Respondent allegedly moved to the United
States in 2005, Petitioner was afraid to stay with Respondent and began expressing her desire to
return to Mexico with J.G.V. Petitioner asked Respondent to give her authorization to return to
Mexico with J.G.V. Respondent initially refused but ultimately agreed to Petitioner returning to
Mexico with J.G.V. on the condition that she first obtain a green card and residency status in the
United States. Respondent also conditioned Petitioner’s leaving the United States with J.G.V. on
her agreement to not request child support.
After Petitioner agreed to both conditions, arrangements were made for Petitioner and J.G.V.
to fly to Mexico, and Respondent took Petitioner and J.G.V. to the airport. Petitioner testified that
Respondent told his parents that she and J.G.V. were only going to Mexico temporarily, so they
would not oppose the decision, but he knew that she and J.G.V. did not plan on returning to the
United States and he was “okay with that.” Petitioner, therefore, returned to Mexico with J.G.V. in
October 2007 to live with her parents in Acapulco. J.G.V. was only sixteen months old at the time.
After Petitioner and J.G.V. left the United States in October 2007, Respondent visited J.G.V.
periodically in Acapulco and telephoned monthly. Respondent visited J.G.V. the first time in
December 2007. Petitioner was afraid to leave J.G.V. alone with Respondent and told him that she
wanted to be present when he visited J.G.V. To alleviate her concern, Respondent assured Petitioner
that he would never harm J.G.V. Respondent and his family in Acapulco attempted to convince
Petitioner to return to the United States. Petitioner, however, repeatedly asked Respondent for a
divorce. Respondent refused Petitioner’s requests for a divorce and threatened that he would take
J.G.V. away from her and kill her if she dated anyone.

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F.

Petitioner’s Two Visits to the United States with J.G.V. after Returning to
Mexico

After leaving the United States, Petitioner and J.G.V. returned to the United States together
two more times. Respondent testified that Petitioner traveled with J.G.V. to the United States for
his father’s birthday on January 10, 2008, so Respondent could spend time with J.G.V. Respondent,
however, did not indicate how long Petitioner and J.G.V. stayed in the United States before returning
to Mexico.
In January 2009, Petitioner registered J.G.V. in Mexico to give him a dual nationality and
enroll him in school in Mexico. J.G.V. was also diagnosed in January 2009 with a heart condition,
which required surgery. At the time, Petitioner was working at a resort hotel and going to college,
and Respondent was living and working in South Carolina doing construction work. Petitioner and
Respondent agreed that it would be better for J.G.V. to receive necessary medical treatment in the
United States. Petitioner and J.G.V. returned temporarily to the United States a second time in 2009.
They first flew to South Carolina. After doing research, Petitioner made the decision to take J.G.V.
to Miami Children’s Hospital for his surgery. Petitioner and J.G.V. moved to Miami, Florida, until
J.G.V. had the surgery on April 15, 2009. It is unclear whether Respondent was also living in Miami
during this time; however, Petitioner testified that they all drove back to South Carolina together as
soon as the doctor at Miami Children’s Hospital told them that J.G.V. was well enough to travel by
automobile to South Carolina.
As instructed, Petitioner took J.G.V. to see another doctor in South Carolina fifteen days later
to determine whether he was well enough to fly back to Acapulco. The doctor in South Carolina
confirmed that J.G.V.’s health was good and that he could fly to Acapulco. When Petitioner first

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talked to Respondent about returning to Acapulco with J.G.V., Respondent tried to convince her that
he had changed his ways, in an attempt to get her to stay in the United States. Petitioner, however,
told Respondent that she no longer loved him and that she wanted to return to Mexico. Respondent
became upset and again warned Petitioner that he would kill her if she was dating anyone.
Respondent was first reluctant to authorize Petitioner’s return to Mexico with J.G.V. but relented
a couple of days later and took them to the airport so that they could return to Mexico. Upon
returning to Mexico, Petitioner and J.G.V. lived with her parents in Acapulco.
Petitioner met her current husband Jorge in January 2012 through a friend at work, and they
began dating seriously. At the time, Jorge was working for the city of Acapulco under the chief of
police in an administrative capacity. Petitioner testified that she was afraid to tell Respondent about
Jorge because of his prior threats. When she finally told him, Respondent was not upset because he
was also dating someone else.
In June 2012, Petitioner, Jorge, and J.G.V. went to Jorge’s parent’s home in Acapulco. Later
that evening, when Jorge drove Petitioner and J.G.V. to her parents’ home, another vehicle cut them
off just as they were arriving at her parents’ home, and four men with guns kidnapped Jorge,
Petitioner, and J.G.V., who was around five years old at the time. They were kept for three days in
a vehicle in an unknown location until Jorge’s, Petitioner’s, and Respondent’s family members paid
the ransom demanded by the kidnappers for their release. While in captivity, the three were allowed
to eat and drink in the vehicle where they were kept and were allowed outside to go to the bathroom.
According to J.G.V., an outdoor party took place close to the vehicle where they were held.
After the kidnapping incident, Petitioner and J.G.V. moved three hours away to Cuernavaca,
Mexico, with Respondent, who had been assigned to work as a bodyguard or commissioner for the

Memorandum Opinion and Order - Page 16

“Syndic,” which, according to Petitioner, means public safety or law enforcement department in
English. Jorge’s new position involved bulletproof vehicles and, on one occasion, Petitioner and
J.G.V. went with Jorge to Mexico City to have repairs done to two bulletproof vehicles.
Respondent attempted to convince Petitioner to go back to Acapulco after the kidnapping
incident so his family and people could watch over her and J.G.V. and keep them safe.
Alternatively, Respondent suggested that Petitioner return to the United States with J.G.V. to live
with him, even though by this time he had a daughter with the woman that he was dating.
Respondent explained during the bench trial that Maria, the woman he was dating at the time and
later married, is a Mexican citizen, lives in Acapulco, has never been to the United States, and has
no plans to come to the United States. By this time, Petitioner’s and Jorge’s relationship was quite
serious, and Petitioner refused to return to Acapulco or the United States and again asked
Respondent for a divorce. Respondent, on the other hand, testified that Petitioner never asked him
for a divorce and that it was he who asked Petitioner for a divorce sometime in 2012 because he
wanted to marry Maria.
G.

June 11, 2012 Divorce and Custody Agreement

The parties agreed in 2012 to divorce, and Respondent filed for divorce in Dallas County,
Texas, on June 11, 2012. Petitioner testified that, as part of their agreement to divorce, the parties
verbally agreed that the custody arrangement for J.G.V. would remain the same as follows: Petitioner
would have joint custody of J.G.V.; J.G.V. would always continue to reside with Petitioner in
Mexico; and Respondent would continue to see J.G.V. during vacation visitations. The parties’
Divorce Decree, which was entered on November 8, 2012, by the 302nd Judicial District Court,
Dallas County, Texas, gives Petitioner the “exclusive right to designate the primary residence of

Memorandum Opinion and Order - Page 17

[J.G.V.] without regard to geographic location.” Pet’rs Ex. 8 at 5. The Divorce Decree also states:
“The parties have agreed not to limit the residency of the child to Dallas or any other county.”
Id. at 6 (emphasis in original). Pursuant to the Divorce Decree, Respondent was entitled to
possession of J.G.V. during certain time periods, including thirty consecutive days during the
summer beginning on July 1 at 6 p.m. and ending at 6 p.m. on July 31. Id. at 8.
After their divorce was final, Respondent married his girlfriend Maria in January 2013, and
Petitioner married Jorge in August 2013. A short time after marrying, Petitioner and Jorge began
considering whether they should move to Monterrey, Mexico, where Jorge’s parents reside.
Respondent was initially unhappy about Petitioner moving to Monterrey and preferred that she live
in Acapulco to remain close to his family, but Respondent “came around” after being assured that
he would continue to be able to see J.G.V. during summer vacations. According to Petitioner, J.G.V.
was excited about moving to Monterrey and has enjoyed living there. During the entire time that
Petitioner and J.G.V. have lived in Mexico since 2007, J.G.V. has attended school in Mexico, and
the parties continued under their agreed-upon custody and visitation arrangement until the summer
of 2014.
H.

Respondent’s Retention of J.G.V. in July 2014 Beyond his Authorized Summer
Visitation and Removal of J.G.V. to the United States Without Petitioner’s
Permission or Knowledge

After J.G.V.’s eighth birthday in June 2014, Respondent requested to spend two weeks with
J.G.V. in Acapulco in July 2014. Petitioner and Respondent agreed that after Respondent spent two
weeks with J.G.V., he would take the child to Petitioner’s parents’ home in Acapulco on July 24,
2014, where he would stay an additional week with his grandparents before returning to Monterrey.
Petitioner’s parents were going to take J.G.V. to the airport in Acapulco when it was time for him

Memorandum Opinion and Order - Page 18

to return to Monterrey. With this in mind, Petitioner purchased a round-trip airline ticket for J.G.V.
to travel from Monterrey to Acapulco on July 5, 2015, and from Acapulco to Monterrey on July 29,
2014. Before sending J.G.V. to Acapulco to see his father, Petitioner purchased a cellular telephone
for J.G.V., so she could communicate with him every day while he was gone.
On July 23, 2014, rather than taking J.G.V. to his grandparents’ home, Respondent advised
Petitioner that he had recently taken J.G.V. to see a psychologist in Acapulco and had made the
decision to take J.G.V. to the United States with him to see another psychologist. Respondent then
drove with J.G.V. to Juarez, Mexico, and from there, they flew to Dallas, Texas. Petitioner pleaded
with Respondent to return J.G.V. and indicated that, if Respondent believed that J.G.V. needed to
see a psychologist, she could arrange for all of them to go together to see a psychologist of his choice
in Mexico. Respondent rejected Petitioner’s request and did not allow J.G.V. to answer his mother’s
calls on his cellular telephone until the next day. When Petitioner finally spoke with J.G.V., he
indicated that he thought he was only going to be staying with his father in Dallas for a few days.
When Petitioner asked Respondent to confirm when J.G.V. would be returned to her in Mexico,
however, Respondent would not say whether or when he was going to return J.G.V. to Mexico. The
following day when Petitioner spoke to Respondent again, he confirmed that he would not be
returning J.G.V. to Mexico and was instead going to take steps in the United States to gain primary
custody of J.G.V.
On July 29, 2014, the day she learned that Respondent was planning on removing J.G.V. to
the United States and retaining possession of J.G.V. past the agreed-upon visitation period, Petitioner
filed a criminal complaint against Respondent with the police in Monterrey, Mexico. She then filed

Memorandum Opinion and Order - Page 19

an application for J.G.V.’s return with the Mexican Central Authority on August 13, 2014.
Petitioner subsequently initiated this wrongful removal and retention case with this court on
November 6, 2014.
I.

Respondent’s Filing of State Case to Modify Custody Agreement in August 2014

Within two weeks of bringing J.G.V. to the United States, Respondent filed a proceeding in
Dallas County, Texas, on August 12, 2014, requesting to modify the parties’ custody agreement on
the grounds that J.G.V. was the victim of unspecified family violence at the hands of Petitioner.
Respondent also alleged that Petitioner had relinquished her possession and primary care of J.G.V.
for more than six months. Respondent requested, among other things: (1) that he be designated as
the person with authority to designate the primary residence of J.G.V.; (2) that J.G.V.’s residence
be restricted to Dallas, Texas, and contiguous counties; (3) that Petitioner be enjoined from removing
J.G.V. beyond this geographic area; (4) that Petitioner be required to pay child support and maintain
health insurance for J.G.V.; and (5) that Petitioner be denied access to J.G.V. or limited to supervised
visits with J.G.V.
Respondent sent Petitioner a copy of a waiver of service and requested her to sign it but did
not say what the waiver of service pertained to when Petitioner inquired. After Petitioner declined
to sign the waiver, Respondent would not allow Petitioner to talk to J.G.V. on the telephone except
for a few minutes on two occasions in October and December 2014. Petitioner testified that she
nevertheless continued to call J.G.V.’s cellular telephone sometimes as many as twenty times per
day hoping that J.G.V. or Respondent would answer. J.G.V. told the court that he loved and missed
his mother, and that he would talk to his mother in his bedroom with the door closed to avoid
scrutiny from his uncles about what he had said to his mother. Respondent ultimately arranged to

Memorandum Opinion and Order - Page 20

have Petitioner served with a citation and the petition to modify the parent-child relationship in the
state custody case when she appeared and testified in the bench trial of this case. At the conclusion
of the trial, Petitioner was allowed to spend a few hours alone with J.G.V. before returning to
Mexico.
J.

J.G.V.’s Counseling Sessions with Ms. Garcia in January 2015

While living with his father, two uncles, and aunt, J.G.V. attended school in Dallas County.
In January 2015, after Petitioner filed this lawsuit under the Hague Convention, and several months
after J.G.V. was removed from Mexico to the United States, Respondent arranged for J.G.V. to see
a counselor in Dallas, Texas. J.G.V. had six hourly sessions with Ms. Garcia in January and
February 2015 before the trial of this case.
Ms. Garcia testified that Respondent found her on the internet where she is registered on the
website “Psychology Today.” Respondent attended the first counseling session with J.G.V. on
January 2, 2015, and explained to Ms. Garcia in J.G.V.’s presence why he believed his son needed
counseling. Ms. Garcia testified, and her therapy notes so indicate, that, in the first session with
Respondent and J.G.V., Respondent reported that J.G.V. was afraid of the bathroom; he was having
frequent nightmares; he had verbally expressed anxiety about returning to Mexico to live with his
mother; and he had been suspended from school as a result of an incident with another child who
threatened J.G.V. and whom J.G.V. threatened in response.7 Respondent also disclosed that J.G.V.

7

Petitioner objects to evidence regarding these and other statements by Respondent to Ms. Garcia on hearsay
grounds. Respondent responds that such evidence is admissible under Federal Rule of Evidence 803(4). The court
agrees and overrules Petitioner’s hearsay objection. Rule 803(4) excepts from the hearsay rule statements made that
pertain to medical diagnosis or treatment and “describes medical history; past or present symptoms or sensation; their
inception; or their general cause.” Fed. R. Evid. 803(4); Wilson v. Zapata Off-Shore Co., 939 F.2d 260, 272 (5th Cir.
1991). Petitioner contends that Rule 803(4) only applies to statements made by patients; however, the rule does not
expressly limit its application to statements by patients. Accordingly, Respondent’s and J.G.V.’s statements to Ms. Garcia
that were made for purposes of J.G.V.’s diagnosis or treatment are admissible. Based on Ms. Garcia’s testimony, the
Memorandum Opinion and Order - Page 21

had been in his custody for five months, and that he was engaged in litigation with his ex-wife over
custody of J.G.V. Respondent provided a small portion of the Divorce Decree to Ms. Garcia that
indicated he had joint custody of J.G.V. with his ex-wife. Respondent, however, failed to disclose
to Ms. Garcia that he had removed J.G.V. from Mexico and kept him past his normal visitation
possession period in violation of the Divorce Decree without his ex-wife’s permission. Respondent
also failed to disclose that the Divorce Decree gave his ex-wife the exclusive right to designate the
primary residence of J.G.V. without regard to geographic location.
According to Ms. Garcia, J.G.V. reported to her, during their sessions without Respondent,
that: (1) he had been locked in the bathroom for days and was only let out to eat three meals but was
not given any snacks and was scared of being locked in the bathroom; (2) his stepfather hit him
across the face one time, leaving a bruise on his face, and he had to go to school with the bruise on
his face; (3) in 2012, he, his mother, and stepfather were kidnapped at gunpoint and held for ransom
for three days in an automobile, that he was really scared after the kidnapping incident, although no
one was physically harmed, and that he had nightmares that people were coming after him; (4) he
was confused why his stepfather drove a bulletproof vehicle and that he was scared of his stepfather;
(5) his stepfather would call him names and “put him down” verbally; and (6) he loves his mother,
but he is afraid of his stepfather and of being returned to Mexico to live with his mother and
stepfather.

court further concludes that her records regarding J.G.V. fall within the business record exception to the rule against
hearsay. Fed. R. Evid. 803(6). Petitioner also contended that any opinion Ms. Garcia reached regarding J.G.V.’s
diagnosis and treatment based on information provided by J.G.V. or his father is unreliable. Petitioner’s reliability
objection is addressed later in this opinion.

Memorandum Opinion and Order - Page 22

Ms. Garcia was also requested by Respondent to testify as an expert witness in this case. In
response to questions by Respondent, Ms. Garcia opined that: (1) J.G.V. suffered or sustained
psychological and physical abuse as a result of being “put-down” and called names by his stepfather;
being locked in a bathroom for days; being struck on the face one time by his stepfather with
sufficient force to cause a bruise or laceration; and being kidnapped for ransom in 2012 at gunpoint
and held in an automobile for three days together with his mother and stepfather; (2) J.G.V. could
suffer similar harm or abuse if he is returned to Mexico to live with his mother and stepfather and
subjected to traumatic events similar to those that he previously experienced; (3) the anxiety she
observed in J.G.V. was more consistent with being kidnapped and locked in a bathroom for days as
opposed to being put in the bathroom for a time-out for thirty minutes; and (4) J.G.V. was not unduly
influenced by his father or other family members; from her interaction with J.G.V., she believed he
was being truthful because of the details he provided about not getting snacks and having to go to
school with a bruise on his face.8
Petitioner, on the other hand, thought it seemed strange that J.G.V. was now expressing fear
of going to the bathroom after living with his father for several months. Petitioner testified that,
while J.G.V. lived with her, he would ask for his toys or his toy cars so he could play with them

8

The examination by Respondent of Ms. Garcia regarding her methodology and opinions was haphazard and
willy-nilly, making it difficult for the court to determine the precise matters on which Ms. Garcia was being offered to
provide an expert opinion. On the first day of her examination, Ms. Garcia initially volunteered to the court and
expressed concern that she was not aware that Respondent had called her as a witness for the purpose of providing expert
testimony. Ms. Garcia also stated that she could only testify regarding J.G.V.’s symptoms, treatment, and progress;
however, on the second day of the trial during her direct and redirect examination by Respondent, Ms. Garcia willingly
opined about a number of things beyond J.G.V.’s symptoms, treatment, and progress. As best as the court can tell from
reviewing the transcript of the two-day bench trial, the four matters listed are the main issues upon which Ms. Garcia was
requested to and did express opinions. Petitioner repeatedly objected to Ms. Garcia testifying as an expert. The court
did not previously rule on whether Ms. Garcia’s testimony satisfies Rule 702’s requirements for expert testimony. The
court instead indicated that it would take this matter and Petitioner’s objections to Ms. Garcia testifying as an expert
under advisement.

Memorandum Opinion and Order - Page 23

while bathing and was never before afraid of the bathroom. Petitioner explained that, when J.G.V.
misbehaved, he would be disciplined or corrected, not punished, with a time-out in the bathroom,
usually with the bathroom door open, so Petitioner could check on him periodically. Petitioner
testified that, sometimes she closed the door, but she did not lock it. Petitioner clarified that J.G.V.
was only put in time-out for thirty minutes, not for days as Ms. Garcia testified, and only long
enough to make him understand that his bad behavior was inappropriate. Petitioner testified that she
would put J.G.V. in a time-out while she was preparing meals and, when it was time to eat the meal,
she would bring him out of the time-out, and he would go back to the bathroom for the remaining
amount of the time-out after he finished eating. Petitioner explained that she had previously
attempted to discipline J.G.V. by putting him in a time-out in his bedroom and the living room, but
he would play with his toys, and this is why she resorted to using the bathroom for time-outs. When
asked if her husband Jorge had ever hit J.G.V. hard enough to leave a bruise on his face, she
steadfastly maintained that this never happened. Other than J.G.V.’s inconsistent statements to Ms.
Garcia and the court, there is no evidence that J.G.V.’s stepfather struck him on the face with
sufficient force to leave a bruise or laceration.
III.

Conclusions of Law
A.

Overview of Law Applicable to Wrongful Removal or Retention Cases

The Convention was adopted to address the problem of international child abductions in
connection with domestic disputes. Abbott v. Abbott, 560 U.S. 1, 8 (2010). The purpose of the
Convention is to “to secure the prompt return of children wrongfully removed to or retained in any
Contracting State,” and “to ensure that rights of custody and of access under the law of one
Contracting State are effectively respected in the other Contracting States.” Id. (quoting Convention,

Memorandum Opinion and Order - Page 24

art. 1). Under the Convention, a child who is abducted in violation of the “rights of custody” must
be returned to the child’s country of habitual residence, unless certain exceptions apply.” Abbott,
560 U.S. at 5.
The Convention is implemented through the ICARA. Id. Under the ICARA, state courts and
federal district courts have concurrent original jurisdiction over actions arising under the Convention.
22 U.S.C. § 9003(a). A person, who seeks the return of a child wrongfully removed or retained may
file a petition for relief “in any court which has jurisdiction of such action and which is authorized
to exercise its jurisdiction in the place where the child is located at the time the petition is filed.”
Id. § 9003(b). It is undisputed that J.G.V. was located in Dallas County, Texas, when Ms. Vega
Ostos filed her Petition under the Convention. The court therefore has jurisdiction over this action.
The Federal Rules of Evidence apply to wrongful removal and retention cases brought under the
Convention. Vazquez v. Vasquez, No. 3:13-CV-1445-B, 2013 WL 7045041, at *1 n.1 (N.D. Tex.
Aug. 27, 2013) (citing cases). Authentication requirements, however, are relaxed. See 22 U.S.C.
§ 9005.
When a child less than sixteen years of age has been wrongfully removed or retained and less
than one year has elapsed between the alleged wrongful removal or retention and the commencement
of return proceedings, the court in the country to which the child has been brought must “order the
return of the child forthwith,” unless one of the Convention’s limited exceptions apply. Abbott, 560
U.S. at 9; 51 Fed. Reg. at 10507. Even when return proceedings are initiated after the expiration of
one year, Article 12 of the Convention requires return of the child unless it is shown that the child
is settled in his or her new environment. Id. Petitioner filed this case within a few months of J.G.V.

Memorandum Opinion and Order - Page 25

being removed and retained. Accordingly, the court must order J.G.V. to be returned to Mexico,
unless it determines that one of the Convention’s limited affirmative defenses applies.
B.

Petitioner’s Burden of Proof

To establish a claim for wrongful removal or retention under the Convention, the petitioner
must establish by a preponderance of the evidence the following three elements: (1) that “the
respondent removed or retained the child somewhere other than the child’s habitual residence”; (2)
that the removal or retention was wrongful in violation of the petitioner’s custody rights; and (3) “at
the time of removal or retention those rights were actually exercised, either jointly or alone, or would
have been so exercised but for the removal or retention.” Larbie v. Larbie, 690 F.3d 295, 307 (5th
Cir. 2012).
A parent’s removal or retention of a child is considered wrongful “when he or she removes
or retains the child outside the child’s country of habitual residence, and this removal: breaches the
rights of custody accorded to the other parent under the laws of that country; and, at the time of
removal, the non-removing parent was exercising those custody rights.” Sealed Appellant v. Sealed
Appellee, 394 F.3d 338, 343 (5th Cir. 2004) (citing Convention, art. 3). “[R]ights of custody” are
“rights relating to the care of the person of the child and, in particular, the right to determine the
child’s place of residence.” Abbott, 560 U.S. at 9 (quoting Convention, art. 5(a)). The phrase “place
of residence” encompasses the child’s country of residence. Abbott, 560 U.S. at 9. The right to
choose the child’s country of residence is a right “relating to the care of the person of the child.” Id.
Pursuant to Article 3 of the Convention, rights of custody may arise from operation of law,
from a judicial or administrative decision, or from a legally binding agreement. Convention, art. 3.
When no formal custody agreement exists between the child’s parents, courts must apply the laws

Memorandum Opinion and Order - Page 26

of the country of the child’s habitual residence to determine whether the nonremoving parent had
“rights of custody” within the meaning of the Convention. Sealed Appellant, 394 F.3d at 343. Here,
the parties acknowledge and have stipulated that a formal custody agreement exists and the terms
of that agreement are included in their Divorce Decree, and it is a legally binding document between
Petitioner and Respondent. The court therefore need not resort to the laws of J.G.V.’s habitual
residence and will use the parties’ custody agreement to determine whether Petitioner had rights of
custody under the Convention. The Convention’s return remedy does not change custody rights that
existed prior to the wrongful removal of a child and is not a determination regarding the merits of
any custody issue. Abbott, 560 U.S. at 9 (citing Convention, art. 19).
Neither the Convention nor ICARA defines “habitual residence.” See Larbie, 690 F.3d at
310. “The inquiry into a child’s habitual residence is not formulaic; rather it is a fact-intensive
determination that necessarily varies with the circumstances of each case.” Id. (citation omitted).
The Fifth Circuit follows an approach that “begins with the parents’ shared intent or settled purpose
regarding their child’s residence.” Id. (citation omitted).

“A shared parental intent requires that

the parents actually share or jointly develop the intention. In other words, the parents must reach
some sort of meeting of the minds regarding their child’s habitual residence, so that they are making
the decision together.” Berezowsky v. Ojeda, 765 F.3d 456, 468 (5th Cir. 2014) (citing Larbie, 690
F.3d at 310). This approach “gives greater weight to the parents’ subjective intentions relative to
the child’s age” than the child’s experience, particularly when the child is so young that “he or she
cannot possibly decide the issue of residency.” Id. (citation omitted). Under this approach:
the threshold test is whether both parents intended for the child to abandon the
[habitual residence] left behind. Absent shared intent, prior habitual residence should
be deemed supplanted only where the objective facts point unequivocally to this
conclusion. Notably, when the child’s initial move from an established habitual
Memorandum Opinion and Order - Page 27

residence was clearly intended to be for a specific, limited duration[,] . . . most courts
will find no change in habitual residence. Mere retention in another country and
“private reservations” or intentions that are made “manifest and definitive” only after
the child has left its country of origin are generally insufficient to establish intent to
change a child’s habitual residence.
Id. at 310-11 (internal quotations and citations omitted).
C.

Respondent’s Burden of Proof

If a petitioner shows by a preponderance of the evidence that the removal or the retention of
the child was wrongful, the burden shifts to the respondent to prove an applicable affirmative
defense. See 22 U.S.C. § 9003(e)(1). Even if the child has been wrongfully removed, return is not
required if the removing parent can establish that an exception under the Convention applies.
Abbott, 560 U.S. at 22. The Convention recognizes several narrow affirmative defenses if a
respondent “opposes the return of the child.” Convention, arts. 12, 13, 20; 22 U.S.C. 9003(e)(2).
A respondent may show by clear and convincing evidence9 that there is a “grave risk that [the
child’s] return would expose the child to physical or psychological harm or otherwise place the child
in an intolerable situation.” Convention, art. 13(b); 22 U.S.C. 9003(e)(2)(A). The level of harm
necessary to trigger the Article 13(b) exception must be “a great deal more than minimal.” Sanchez

9

Civil cases are typically decided by a preponderance of the evidence. Herman & MacLean v. Huddleston, 459
U.S. 375, 387-88 (1983). Proving a fact by a “preponderance of the evidence” means showing that the existence of a
fact is more likely than not. Id. at 390. Thus, to prove a fact or claim by a preponderance of the evidence, a party must
prove that it is more likely than not that his or her version of the facts is true. Id. The “clear and convincing evidence
standard” is a high standard that is “higher than the preponderance of the evidence standard, common in civil cases, but
not as high as beyond a reasonable doubt.” Travelhost, Inc. v. Blandford, 68 F.3d 958, 961 (5th Cir. 1995) (citation and
internal quotation marks omitted); Crowe v. Smith, 261 F.3d 558, 563 (5th Cir. 2001). “Clear and convincing evidence”
means evidence “so clear, direct and weighty and convincing as to enable the fact finder to come to a clear conviction,
without hesitancy.” Shafer v. Army & Air Force Exch. Serv., 376 F.3d 386, 395, n.9 (5th Cir. 2004) (quoting Travelhost,
Inc., 68 F.3d at 961) (internal quotation marks omitted).
Memorandum Opinion and Order - Page 28

v. R.G.L., 761 F.3d 495, 510 (5th Cir. 2014) (citation omitted).10 A respondent may show by clear
and convincing evidence that the return of the child “would not be permitted by the fundamental
principles of the requested State relating to the protection of human rights and fundamental
freedoms.” Convention, art. 20; 22 U.S.C. 9003(e)(2)(A).
Pursuant to Article 12, if the petition is filed more than one year after the removal, a
respondent may argue that the child is now “well-settled” in his or her new environment.
Convention, art. 12; 22 U.S.C. 9003(e)(2)(B). This defense must be established by a preponderance
of the evidence. Id. It is also a defense to wrongful removal if a respondent can show by a
preponderance of the evidence that the petitioner was “not actually exercising the custody rights at
the time of removal or retention,” or that the petitioner “had consented to or subsequently acquiesced
in the removal or retention.” Convention, art. 13(a); 22 U.S.C. § 9003(e)(2)(B). The Convention also
provides that “[t]he judicial or administrative authority [considering a petition] may also refuse 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.” Convention, art. 13.

10

The grave risk defense “was not intended to be used by defendants as a vehicle to litigate (or relitigate) the
child’s best interests”; nor was it intended to encompass situations such as the return to a home where money is in short
supply or where educational opportunities are more limited.” Hague International Child Abduction Convention; Text
and Legal Analysis, 51 Fed. Reg. 10494, 10510 (March 26, 1986). It instead was intended to apply to situations where
the risk to the child is “grave, not merely serious.” Id. An example of such a situation is one involving sexual abuse of
a child by a custodial parent. Id. A grave risk or intolerable situation also exists when returning a child would send him
or her “to a zone of war, famine, or disease, or in cases of serious abuse or neglect.” Vazquez v. Estrada, No.
3:10-CV-2519-BF, 2011 WL 196164, *5 (N.D. Tex. Jan. 19, 2011) (finding no grave risk exception despite evidence
of “spiraling [drug cartel] violence and surge in murders in Monterrey” and evidence of “specific violent acts that have
been committed in the school [that the child] attended in Monterrey and in the neighborhood where Petitioner resides.”).
“Evidence of adjustment problems attending relocation and separation from a parent are inapposite to the grave risk
determination.” Castro v. Martinez, 872 F. Supp. 2d 546 (W.D. Tex. Feb. 2, 2012). Evidence of prior abuse is
insufficient, especially when there is conflicting testimony about the alleged abuse. Edoho v. Edoho, No. H-10-1881,
2010 WL 3257480, at *5 (S.D. Tex. Aug. 17, 2010).

Memorandum Opinion and Order - Page 29

The age and maturity exception is construed narrowly and must be shown by a preponderance of the
evidence. England v. England, 234 F.3d 268, 272 (5th Cir. 2000).
D.

Rule 702 Standard Applicable to Experts

As noted above, J.G.V. had counseling sessions with Ms. Garcia, and Respondent moved to
have Ms. Garcia qualified as an expert to provide her opinion regarding the following: (1) whether
J.G.V. suffered or sustained any psychological or physical abuse as a result of allegedly being locked
in a bathroom for days, being slapped on the face or mouth one time by his stepfather with sufficient
force to cause a bruise or laceration, and being kidnapped for ransom in 2012 at gunpoint and held
in an automobile for three days together with his mother and stepfather; (2) whether J.G.V. could
suffer similar harm if he was returned to Mexico to live with his mother and stepfather and subjected
to traumatic events similar to those that he previously experienced; (3) whether the anxiety observed
by Ms. Garcia in J.G.V. was consistent with being kidnapped and locked in a bathroom for days as
opposed to being put in the bathroom for a time-out for thirty minutes; and (4) whether J.G.V. was
unduly influenced by his father or other family members such that the information disclosed by him
was not reliable or trustworthy.
Federal Rule of Evidence 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier
of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

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Fed. R. Evid. 702. District courts are assigned a gatekeeping role to determine the admissibility of
expert testimony. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-98 (1993). The court
must find that the evidence is both relevant and reliable before it may be admitted. Id. To do so, the
court must evaluate whether the reasoning and methodology underlying the testimony is valid and
can be reliably applied to the facts of the case. Id. This requires more than a glance at the expert’s
credentials; the court must also ensure that the expert has reliably applied the methods in question.
See Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998) (en banc).
Factors to consider when evaluating reliability include: (1) whether a theory or technique can
be tested; (2) whether the theory or technique has been subjected to peer review and publication; (3)
the known or potential rate of error; (4) the existence and maintenance of standards and controls; and
(5) general acceptance of the theory in the scientific or expert community. Daubert, 509 U.S. at 59395. The reliability inquiry is flexible, and the judge has discretion in determining which factors are
most germane in light of the nature of the issue, the particular expertise, and the subject of the
expert’s testimony. Id. at 594-95; Kumho Tire Co. v. Carmichael, 526 U.S. 137, 142 (1999).
Overall, the trial court must strive to ensure that the expert, “whether basing testimony on
professional studies or personal experience, employs in the courtroom the same level of intellectual
rigor that characterizes the practice of an expert in the relevant field.” Id. at 152. The relevance and
reliability of expert testimony turn upon its nature and the purpose for which its proponent offers the
testimony. See, e.g., Hodges v. Mack Trucks, Inc., 474 F.3d 188, 195 (5th Cir. 2006) (“Of course,
whether a proposed expert should be permitted to testify is case, and fact, specific.”) (citing Kumho
Tire, 526 U.S. at 150-51).

Memorandum Opinion and Order - Page 31

The Advisory Committee’s Notes to Rule 702 explain that when a “witness relies solely or
primarily on experience, then the witness must explain how that experience leads to the conclusion
reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably
applied to the facts.” Fed. R. Evid. 702 advisory committee’s notes (2000 amendments). This is
because the “trial court’s gatekeeping function requires more than simply ‘taking the expert’s word
for it.’” Id. (citing Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1319 (9th Cir. 1994)
(“We’ve been presented with only the experts’ qualifications, their conclusions and their assurances
of reliability. Under Daubert, that’s not enough.”)). According to the Advisory Committee’s Notes,
“The more subjective and controversial the expert’s inquiry, the more likely the testimony should
be excluded as unreliable.” Fed. R. Evid. 702 advisory committee’s notes (citing Kumho Tire Co.,
526 U.S. at 152) (“[I]t will at times be useful to ask even of a witness whose expertise is based
purely on experience, say, a perfume tester able to distinguish among 140 odors at a sniff, whether
his preparation is of a kind that others in the field would recognize as acceptable.”)).
IV.

Application of Law to Facts
A.

Respondent’s Proffer of Ms. Garcia as an Expert

As previously indicated, Ms. Garcia was not aware that she was being called by Respondent
to testify as an expert, and, although she initially indicated to the court that she could only testify
regarding J.G.V.’s symptoms, treatment, and progress, she ultimately opined regarding a number of
matters beyond J.G.V.’s symptoms, treatment, and progress. The court seriously questions whether
Ms. Garcia is qualified to testify as an expert in this case, and whether her testimony meets the
requirement for expert testimony under Rule 702 of the Federal Rules of Evidence, Daubert, and
Kumho Tire.

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Ms. Garcia testified that she is a licensed counselor with a master’s degree in counseling; that
she has six years of work experience as a counselor; and that she had worked with approximately
100 children or adolescents who were victims of child abuse or experienced a traumatic event. Ms.
Garcia testified that her work history included working with children at an unnamed agency, foster
care, and her current private practice. Ms. Garcia indicated that she was trained to determine
whether children, including children as young as J.G.V., have been physically or psychologically
abused.
While Ms. Garcia testified that she had the requisite specialized “knowledge, skill,
experience, training, or education” in determining whether young children have been physically or
psychologically abused, she was unable to articulate in any detail, even with assistance from the
court, the methodology used by licensed counselors in her field to determine whether a young child
has been physically or psychologically abused or unduly influenced by an adult. Ms. Garcia instead
merely stated in conclusory fashion that licensed counselors or therapists: (1) gather information
from the client; and (2) go through the “DSM” to ensure that what is being reported fits the criteria
in the diagnostic manual. Moreover, it was only in response to the court’s questions that Ms. Garcia
confirmed that she was referring to the current or fifth edition of the Diagnostic and Statistical
Manual of Mental Disorders (“DSM-5”).11 Ms. Garcia, however, never identified the section of the
DSM-5 that she relied on and applied in diagnosing or assessing J.G.V.; nor is it clear whether she
considered and applied the criteria normally applied by professionals in her field. Consequently, the
court is unable to determine whether Ms. Garcia’s use and application of the DSM-5 was consistent
11

The DSM-5 was published by the American Psychiatric Association in May 2013. The DSM is an
authoritative manual relied on by researchers and mental health professionals to classify and define mental disorders.
The DSM is the collective work of numerous experts, and its purpose is to improve the diagnosis and treatment of
persons suffering from mental disorders.
Memorandum Opinion and Order - Page 33

with the manner in which professionals in her field would use and apply it in a situation such as this.
Respondent’s unsuccessful attempt to qualify Ms. Garcia as an expert drew numerous
objections from Petitioner, and the court advised Respondent’s counsel on several occasions that he
had not laid the proper predicate under Rule 702 applicable to experts relying primarily on
experience. Instead of eliciting testimony from Ms. Garcia regarding the criteria and steps taken by
licensed counselors or therapists in determining whether children have suffered a traumatic event
or abuse and whether the child’s behavior is attributable to the events reported by a child or other
adults, Respondent’s counsel repeatedly focused on Ms. Garcia’s qualifications and her unverifiable
observations and opinions. Moreover, as explained above, it is unclear whether she considered and
applied the criteria normally applied by professionals in her field. Absent such testimony, the court
concludes that the opinions expressed by Ms. Garcia are not sufficiently reliable.
Additionally, no controls were used to ensure that the information reported by Respondent
and J.G.V. was truthful, and that the information reported by J.G.V. was not unduly influenced by
Respondent or Respondent’s family. Ms. Garcia’s opinions were also based on insufficient data or
facts. Ms. Garcia never asked J.G.V. whether his father told him what to say during counseling
sessions or whether his father inquired about what was discussed during counseling sessions. In
addition, Ms. Garcia does not appear to have taken into account J.G.V.’s level of maturity. Ms.
Garcia instead believed and assumed, based solely on her interactions with J.G.V., that he was being
truthful.
Although she was aware of the custody litigation involving J.G.V. and the potential for undue
influence by one parent, Ms. Garcia made no inquiries regarding the circumstances giving rise to the

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litigation and custody battle or how J.G.V. came to live with Respondent; nor did she think it was
odd when Respondent only gave her a portion of the parties’ custody agreement. Ms. Garcia did not
request information from Respondent regarding the counselor in Mexico who allegedly saw J.G.V.
at Respondent’s request or the counselor at J.G.V.’s school in Dallas, Texas, who became involved
when J.G.V. was suspended; nor did she attempt to contact the counselors or J.G.V.’s mother to
verify whether the information reported by Respondent and J.G.V. was accurate.
Ms. Garcia also made no attempt to contact Respondent’s wife or girlfriend after J.G.V.
reported that he had confided in her about his stepfather hitting him in the face. Ms. Garcia
acknowledged that, although J.G.V. had reported being the target of name-calling and “put-downs”
by his stepfather, he was unable to provide any details regarding this general allegation, and he did
not respond to Ms. Garcia’s questions, for example, regarding the types of names that his stepfather
allegedly called him. Finally, Ms. Garcia assumed, without any attempt at verification, that J.G.V.
had spent several or many days at a time in the bathroom as punishment, even though she
acknowledged that J.G.V. had never specifically stated how long he was normally required to stay
in the bathroom or how frequently he was required to stay in the bathroom.
In addition, Ms. Garcia assumed from the outset, based solely on the information provided
by Respondent in J.G.V.’s presence, that J.G.V. had been the victim of abuse or a traumatic event.
For example, Ms. Garcia testified that, when talking to J.G.V., she did not directly question him
about certain events but instead waited for him to volunteer information because she does not
interrogate children who have been through traumatic events. In addition, Ms. Garcia assumed and
concluded, based on information obtained solely from Respondent and J.G.V., that J.G.V.’s alleged
general anxiety, fear of the bathroom, nightmares, and school outbursts were caused by: (1) J.G.V.

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allegedly being locked in the bathroom for several days at a time; (2) the alleged incident in which
J.G.V.’s stepfather hit him on the face; (3) the unspecified name-calling and “put-downs” by his
stepfather; and (4) the 2012 kidnapping. Ms. Garcia did so without taking into account other factors
that might have caused or contributed to J.G.V.’s anxiety and disruptive behavior. Ms. Garcia did
not consider whether the litigation involving J.G.V. or his parents’ divorce and remarrying could
have been contributed to his anxiety and disruptive behavior inside and outside of school, even
though she acknowledged, as Petitioner had testified, that J.G.V. had a tendency to test the limits
behaviorally. Ms. Garcia apparently discounted the effect of J.G.V.’s parent’s divorce, remarrying,
and litigation on his behavior; however, it does not take an expert to know that such matters are often
the source of stress and anxiety in a child and can certainly have a psychological impact on the child,
especially when the divorce is acrimonious and involves prolonged litigation, both of which are
present in this case.
Ms. Garcia further testified that, in diagnosing and treating children, she relies heavily on
their facial expressions and body language to determine what emotion the child is feeling or
expressing nonverbally; however, Ms. Garcia’s notes of J.G.V.’s counseling sessions are devoid of
any descriptions regarding facial expressions and body language. Instead, Ms. Garcia simply
indicates in conclusory fashion in her notes that J.G.V. is anxious, without describing whether he
is frowning, looking scared, smiling, sitting still, or fidgeting. Consequently, the court has no way
of independently assessing whether Ms. Garcia’s observations of J.G.V. are correct. In an attempt
to rehabilitate Ms. Garcia, Respondent asked her on redirect and she testified that, as a licensed
counselor in Texas, she is not required to describe or include in her notes such descriptions.

Memorandum Opinion and Order - Page 36

This question simply misses the mark. Regardless of what Ms. Garcia is required to do under
Texas law or rules applicable to licensed counselors in Texas, Rule 702 requires the court to consider
whether Ms. Garcia’s opinions and conclusions are based on sufficient facts or data; whether her
testimony is the product of reliable principles and methods; and whether she has reliably applied
those principles and methods to the facts of this case. Notably, Ms. Garcia testified on crossexamination that she was unable to describe J.G.V.’s mood or affect by simply reviewing
photographs of him interacting with his stepfather, and she indicated that it would be more helpful
if she had a video of J.G.V. to review. On the other hand, Respondent expects the court to take Ms.
Garcia’s word that J.G.V. appeared “anxious” during his counseling sessions without the benefit of
a photograph, video, or description in her notes of what she observed. Overall, the court found Ms.
Garcia’s testimony and opinions to be overly simplistic, subjective, conclusory, and unhelpful. As
a result, her approach and conclusions cannot be objectively verified or reasonably assessed for
reliability.
Ms. Garcia’s decision to rely on selective facts and subjective data go more to the weight to
be given to her testimony. On the other hand, her reliance on incomplete facts or data; her inability
to adequately describe the methodology normally used by licensed counselors to determine whether
children have been abused or suffered a traumatic event and whether she applied such methodology
in evaluating J.G.V.; and her complete lack of controls to enhance truthful reporting by Respondent
and J.G.V. leads the court to conclude that her opinions and conclusions are not reliable. Ms.
Garcia’s testimony and opinions, for all of the reasons previously stated, fail to meet the
requirements of Rule 702 and are disregarded, or given little, if any, weight by the court.

Memorandum Opinion and Order - Page 37

B.

Petitioner’s Prima Facie Case
1.

Habitual Residence

The evidence in this case leads the court to conclude that J.G.V.’s habitual residence is
Mexico. J.G.V. only speaks Spanish. Before he was brought to the United States by Respondent
in July 2014, he had only attended school in Mexico, and spent most of his eight-year life in Mexico.
Except for his father and two uncles, who currently reside in the United States, J.G.V.’s entire
family, including his stepmother with whom he has a close relationship, lives in Mexico, where
Petitioner and Respondent were raised and spent most of their lives before coming to the United
States in 2005. Petitioner testified that, when she moved back to Mexico with J.G.V. in 2007 to be
close to her family, Respondent understood that she did not intend to return to the United States, and
he was “okay with that,” as long as he could continue to see J.G.V. and spend time with him in
Acapulco, Mexico. While Respondent indicated that he would rather Petitioner live in the United
States, it was only after she moved from Acapulco, away from his family to other cities in Mexico,
that he objected to Petitioner’s choice of residence. Moreover, the court reasonably infers that
Respondent’s desire to have Petitioner live in the United States or Acapulco is driven more by his
desire to control Petitioner by keeping her and J.G.V. close to him and his family than an intention
to make the United States J.G.V.’s habitual residence.
Respondent emphasizes that Petitioner moved several times within Mexico after returning
to Mexico and contends that Dallas, Texas, or the United States, rather than Mexico, is J.G.V.’s
habitual residence. Respondent apparently misunderstands the meaning of habitual residence.
Petitioner’s moves within Mexico do not undercut or undermine her assertion that Mexico is
J.G.V.’s habitual residence, as Petitioner did not leave Mexico to live in some other country

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permanently. All of the various moves were either within Acapulco, Mexico, or to other cities in
Mexico, and there is no evidence that the parties ever intended Dallas, Texas, or the United States
to be J.G.V.’s habitual residence. Further, while Petitioner returned with J.G.V. to the United States
twice for medical treatment and a birthday party, she did so only for a short time without any
intention of staying longer than was necessary. Additionally, after leaving the United States in 2007,
Petitioner never wavered regarding her earlier decision to remain permanently in Mexico with J.G.V.
Finally, while the parties’ custody agreement that gives Petitioner the exclusive right to
determine J.G.V.’s residence is not synonymous with habitual residence as that term is used in the
Convention, it is consistent with the parties’ verbal agreement and understanding that J.G.V. would
continue to attend school and live with his mother in Mexico and spend time with Respondent in
Acapulco during vacations and other agreed-upon times. It is also consistent with the parties’
conduct in acting in accordance with this understanding and agreed-upon arrangement prior to July
2014.
Based on the foregoing, the court therefore determines that Petitioner and Respondent shared
an intent or settled purpose that J.G.V.’s habitual residence would be Mexico. See Larbie, 690 F.3d
at 310. Respondent’s removal of J.G.V. from Mexico and retention of him in the United States
without Petitioner’s consent, and his filing of a state action in August 2014 to modify the parties’
custody agreement after bringing J.G.V. to the United States does not affect the court’s resolution
of this issue because Respondent’s unilateral actions in this regard are insufficient to establish an
intent to change J.G.V.’s habitual residence. Id. at 310-11. Moreover, as herein discussed, there is
no credible evidence to support Respondent’s exaggerated allegations of abuse and illegal
conduct—the purported bases for the requested custody modification. For all of these reasons, the

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court concludes that J.G.V.’s habitual residence is Mexico. Petitioner has therefore satisfied this
element.
2.

Wrongful Removal or Retention

The Divorce Decree sets forth the terms of the parties’ custody agreement and the parameters
for each party’s rights of possession with respect to J.G.V. Respondent’s decision to retain
possession of J.G.V. beyond the time allowed by the custody agreement for summer visitations and
his removal of J.G.V. to the United States without Petitioner’s consent or knowledge and refusal to
return him to Mexico were clear violations of the Divorce Decree, custody agreement’s visitation
provisions, and Petitioner’s right to designate J.G.V.’s residence. Respondent’s removal and
retention of J.G.V. were therefore wrongful. Moreover, while the custody agreement gives
Respondent the duty to protect J.G.V., it does not justify his unilateral decision to retain possession
of J.G.V. and bring him to the United States in violation of the custody agreement, based on nothing
more than an unsubstantiated concern regarding J.G.V.’s apprehension of the bathroom. If
Respondent wished to modify the custody agreement with Petitioner, he should have initiated such
proceedings and obtained a court ruling beforehand, instead of taking matters into his own hands.
The court, therefore, concludes that Petitioner has satisfied this element.
3.

Petitioner’s Exercise of Custody Rights

The evidence shows that Petitioner was exercising her custody rights under the Divorce
Decree by designating Mexico as J.G.V.’s residence, enrolling him in school in Mexico, and
attending to his everyday needs. At all times prior to July 2014, J.G.V. resided with Petitioner and
was in her custody, except when Respondent exercised his visitation rights under the parties’ earlier
verbal agreement or the 2012 written custody agreement. To ensure that she could continue to

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communicate with J.G.V., Petitioner purchased and gave him a cellular telephone before he went
on vacation with Respondent in July 2014. After learning that Respondent did not intend to return
J.G.V. on the agreed-upon date in July 2014, Petitioner pleaded for his return and called as much as
twenty times a day on some occasions in an attempt to communicate with Respondent and J.G.V.
Petitioner continued to call even after Respondent stopped answering her calls and refused to allow
J.G.V. to answer the cellular telephone that she purchased for him. Petitioner filed a criminal
complaint against Respondent and initiated wrongful removal proceedings in Mexico and the United
States. Petitioner refused to waive her right to receive citation and service without an explanation
of what she was being requested to waive in the Texas custody suit filed by Respondent. Petitioner
also traveled from Mexico to attend the two-day bench trial in this case. Simply put, there is no
evidence that Petitioner was not exercising her “rights of custody,” as that term is defined by the
Convention, when Respondent wrongfully retained possession of J.G.V. and brought him to the
United States. See Abbott, 560 U.S. at 9 (quoting Convention, art. 5(a)). Likewise, there is no
credible evidence that Petitioner “consented to or subsequently acquiesced in the removal or
retention.” Convention, art. 13(a); 22 U.S.C. § 9003(e)(2)(B).
Contrary to Respondent’s contention, the inclusion of two last known addresses for
Respondent in Petitioner’s criminal and civil filings is not evidence that Petitioner was not exercising
her rights of custody or that she acquiesced in Respondent’s removal and retention of J.G.V. in
violation of the parties’ custody agreement. Moreover, Petitioner explained that, while she thought
Respondent was residing in Dallas, Texas, prior to J.G.V.’s retention and removal from Mexico, she
was not certain whether Respondent took J.G.V. to Dallas, Texas, and she was unsure whether
Respondent was residing at either of the two addresses she provided in the forms that she completed

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and filed. Accordingly, Petitioner has satisfied this final element and her burden of establishing, by
a preponderance of the evidence, that the removal or retention of J.G.V. was wrongful. The burden,
therefore, shifts to Respondent to prove one of his narrow affirmative defenses.
B.

Respondent’s Affirmative Defenses

In his answer to the Petition, Respondent alleged affirmative defenses based on Petitioner’s
alleged failure to exercise her custody rights; Petitioner’s consent or acquiescence to J.G.V.’s
removal or retention; human rights and fundamental freedom violations; grave risk; and mature
child. During the bench trial, however, Respondent indicated more than once that he only had two
affirmative defenses and was only proceeding on his grave risk and mature child defenses. The
court, therefore, concludes that Respondent has abandoned the other defenses alleged in his Answer
and only addresses the grave risk and mature child defenses.12
1.

Grave Risk

Respondent relies solely on Ms. Garcia’s testimony and records to support his contention that
J.G.V. would be subjected to grave risk of physical or psychological harm or an intolerable situation
if returned to Mexico. Ms. Garcia opined that if J.G.V. were returned to Mexico, and if he were
subjected to the same or similar trauma at the hands of his stepfather, he would suffer physical and
psychological harm. Ms. Garcia, however, admitted that she could not predict the future. While no
person can predict the future, Ms. Garcia does not provide an adequate basis for the court to make
a reasonable inference that J.G.V. is likely to suffer harm if his is returned to Mexico. Additionally,
for the reasons previously explained, the court determined that Ms. Garcia’s opinions regarding

12

Even assuming that Respondent did not intend to abandon these defenses, he presented no evidence at trial
to support the defenses, and, therefore, the evidence in this case is insufficient to establish any of the defenses.
Memorandum Opinion and Order - Page 42

J.G.V.’s diagnosis and treatment, including her opinion that J.G.V. suffered physical and
psychological harm at the hands of his stepfather, are based on incomplete facts and unreliable or
unclear principles and methodology.
Moreover, J.G.V.’s various reports to Ms. Garcia and the court of alleged abuse and other
key events are inconsistent or lacking in detail. There is no credible evidence to support
Respondent’s contention that J.G.V. was locked in a bathroom for thirty or more days; nor is there
any support for Ms. Garcia’s assumption that J.G.V. was locked in a bathroom for several days.
When asked by the court, J.G.V. was unable to articulate how long he spent in the bathroom, and his
unemotional response that he was only let out to eat and go to school appeared to be rehearsed.
Unlike Ms. Garcia, Petitioner had first-hand knowledge of how J.G.V. was disciplined for bad
behavior with thirty-minute time-outs in the bathroom, and her testimony was the only credible
evidence regarding this matter. While Ms. Garcia expressed the opinion that children should not be
put in a time-out for more than one minute for each year of the child’s age, her testimony in this
regard was far from sufficient to meet Respondent’s heavy burden of establishing, by clear and
convincing evidence, that J.G.V. will be subjected to the type of grave risk of physical or
psychological harm contemplated by the Convention if returned to Mexico.
Respondent’s decision to wait five months until January 2015 before seeking counseling for
J.G.V. in the United States further seriously undermines his claim that J.G.V. was subjected to grave
risk of harm as a result of being put in the bathroom. Respondent attempted to paint a story of being
concerned about J.G.V.’s anxiety and left the court with the impression that time was of the essence.
When asked by the court why he waited so long to take J.G.V. to a counselor, Respondent testified
that he requested counseling for J.G.V. through his school in Dallas because of his concern about

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J.G.V.’s anxiety problem, but that the appointments provided to him for the counseling referrals
were set far in the future. Respondent went on to explain that this is when the conflict with the other
boy at school occurred, and it was for this reason that J.G.V. was referred to therapy at that time.
Regardless of whether J.G.V. was referred for counseling in late December or early January 2015
due to the conflict at school with another boy, this still does not explain why, given Respondent’s
alleged concern, he chose to wait and go through the school counselor instead of seeking out and
taking J.G.V. for private counseling long before the incident at school occurred, as he allegedly did
in Mexico in July 2014.
Respondent’s actions and efforts to obtain counseling for J.G.V. upon returning to the United
States are not consistent with a parent who is genuinely concerned about the welfare of his child.
Respondent appears to have made a concerted effort to quickly file suit in state court to modify the
parties’ custody agreement but did not act with the same urgency in obtaining counseling for J.G.V.
Moreover, while Respondent explained that J.G.V. was referred to Ms. Garcia by the school
counselor, Ms. Garcia testified that Respondent found her on the Internet. No credible explanation
was given by Respondent for the inconsistency between his and Ms. Garcia’s testimony on this topic.
This inconsistency, combined with Respondent’s inadequate explanation for why he delayed
several months before taking J.G.V. to counseling; his inability to recall details about the therapist
in Mexico;13 and his inability to recall basic information like the name of the school counselor in the

13

After Mr. Vega testified that he could not recall the name of the therapist in Mexico, his attorney Mr. Cortez
advised the court, “We do know the identify of the psychologist in Mexico.” It is unclear what Mr. Cortez meant by
“We.” As previously noted, Respondent was unable to recall much if anything about the therapist in Mexico or J.G.V.’s
alleged sessions with her. Mr. Cortez added that no evidence regarding this therapist’s session(s) with J.G.V. was
presented because Respondent was unable to contact the therapist and obtain her records. Mr. Cortez further stated that
if the court could undertake an independent investigation, he could provide information to the court for this purpose. By
this, Mr. Cortez presumably meant that he could provide the therapist’s name and contact information. In response,
Petitioner objected to the admission of any such posttrial extraneous evidence and further investigation. Petitioner also
Memorandum Opinion and Order - Page 44

United States, seriously undermines his credibility and testimony. Respondent attempted to explain
away his inability to recall the name of the school counselor, whom he had talked to a number of
times, on his speaking to her through an interpreter. Respondent, however, presumably spoke
without an interpreter to the therapist that J.G.V. allegedly saw in Mexico, and this did not help his
memory in recalling the therapist’s name, how much he paid for her services, or the therapist’s
contact information. Respondent could not even say for sure how many times he took J.G.V. to see
the therapist in Mexico.
Similarly, the only evidence that J.G.V. was struck or hit one time on the face by his father
with sufficient force to cause a bruise on his face or to give him a busted lip is J.G.V.’s inconsistent
reports of the alleged incident to Ms. Garcia and the court. Notably, there is no physical evidence
in the form of school reports or verbal reports by his father to others to substantiate J.G.V.’s
statements that he sustained either a bruise or busted lip before going on vacation with his father or
while attending school in Mexico.
Additionally, Petitioner unequivocally testified that no such thing ever happened. While no
cause for approbation, that Petitioner or her husband may have struck or spanked J.G.V. on one or
two occasions in the past to correct his misbehavior does not support Respondent’s claim that J.G.V.
has been or will be subjected to grave risk of physical or psychological harm or an intolerable
situation if returned to Mexico. Even assuming that the slap occurred, it falls woefully short of
providing the court with a basis to conclude that J.G.V. would be subject to a grave risk of harm if

objected to Mr. Cortez testifying. The court sustains Petitioner’s objections to Mr. Cortez’s commentary. It is not
incumbent on the court to conduct independent investigations or gather evidence to support the parties’ claims and
defenses. Moreover, Respondent was aware of the existence of this alleged evidence for almost one year and had more
than sufficient time before the trial of this case to investigate, prepare a defense, and obtain whatever evidence he needed
for the hearing regarding the alleged therapist in Mexico.
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returned to Mexico to the custody of his mother. The limited information that J.G.V. shared with Ms.
Garcia regarding alleged name-calling and verbal “put-downs” by his stepfather are likewise
insufficient to support a grave risk an intolerable situation finding by the court or Ms. Garcia’s
conclusion that J.G.V. was psychologically abused.
The only other evidence presented in support of Respondent’s grave risk defense is the 2012
kidnapping. It is undisputed that the kidnapping occurred in 2012, and Petitioner’s and J.G.V.’s
accounts of the kidnapping are consistent. Ms. Garcia attributed J.G.V.’s hyper vigilance, anxiety,
and nightmares in large part to the kidnapping. There is no evidence, however, that Petitioner or her
husband were in any way responsible for the kidnapping. There is also no evidence to show that
there is a likelihood that J.G.V. and his mother will be the victims of kidnapping in the future if he
is returned to Mexico. In other words, Respondent presented no evidence to show that this was
anything more than an isolated random event that was beyond the control of Petitioner and her
husband. Further, there is no evidence to support Respondent’s allegation that Petitioner or her
husband has engaged in illegal activity, and Petitioner provided plausible explanations for why she
moved several times within Mexico after returning in 2007. She also explained that her husband’s
current work in security requires him to drive and maintain bulletproof vehicles. Accordingly, the
court concludes that neither the 2012 kidnapping nor the other grounds relied on by Respondent
constitute clear and convincing evidence that J.G.V. will be subjected to a grave risk of harm or
placed in an intolerable situation if returned to Mexico where he has lived most of his life. The facts

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of this case simply do not rise to the level of graveness or seriousness required to support a grave risk
defense under the Convention.14
2.

Mature Child

Respondent appears to proceed on the assumption that the court’s in camera interview of
J.G.V. would support his mature child defense. For the reasons already explained, the court
concludes, from its interview of J.G.V. and the manner in which he conveyed certain information
to Ms. Garcia, that it would not be appropriate to consider J.G.V.’s views in determining whether
he should be returned to Mexico, as J.G.V. has not attained an age and degree of maturity at which
it is appropriate for the court to consider or take into account his views as to whether he should
remain in the United States. As previously noted, there were material inconsistencies in J.G.V’s
reported accounts of events, and the manner in which he responded to various questions indicated
to the court that he does not have a firm grasp of time and space relationships. His accounts of timerelated events varied in detail and consistency and in some instances appeared exaggerated. For
example, he was unable to articulate to the court or Ms. Garcia or provide an estimate of how long
he was required to stay in the bathroom for time-outs, even though Respondent and Ms. Garcia
believed that the time-outs caused him to suffer a tremendous degree of anxiety. On the other hand,
he indicated without hesitation that he was once required by his mother or stepfather to remain on

14

Courts that have dealt with allegations of abuse and refused to order the return of children typically involve
life-threatening abusive situations that are far more grave than the isolated slap(s) and time-outs at issue in this case. See,
e.g., Van De Sande v. Van De Sande, 431 F.3d 567, 570 (7th Cir. 2005) (reversing order of return where the father had
“beat[en] his wife severely and repeatedly in [the children’s] presence,” and threatened to kill them); Walsh v. Walsh,
221 F.3d 204, 219-20 (1st Cir. 2000) (reversing order of return where father was psychologically abusive and had
severely beaten the children’s mother in their presence); Allusive v. Allusive, 353 F. Supp. 2d 394, 398-400 (E.D.N.Y.
2005) (refusing return where father frequently hit the children, threatened to kill his son, and severely abused their mother
in their presence); Rodriguez v. Rodriguez, 33 F. Supp. 2d 456, 459-60 (D. Md. 1999) (refusing return where child had
been belt-whipped, punched, and kicked, and where the child’s mother had been subjected to more serious attacks,
including choking and breaking of her nose).
Memorandum Opinion and Order - Page 47

the balcony for a few minutes for misbehaving. In addition, J.G.V. described to the court something
that his younger half-sister did some time ago to annoy him as if it happened yesterday. He also
expressed an exaggerated fear of being required to stay in any confined space where there might be
spiders.
Some of J.G.V.’s responses to the court’s questions also appeared to be rehearsed or
mechanically repeated without any emotion. From this and his statements about his conversations
with Respondent and Respondent’s family, and his mentioning that he recently watched a television
program involving the custody of a child, the court was left with the impression that he had been
influenced by Respondent and Respondent’s family. The court also found J.G.V.’s explanation of
the difference between the truth and a lie to be immature,15 and it was obvious to the court that he
did not understand the purpose of this litigation. Thus, although J.G.V. expressed his desire to
remain in the United States, the court does not consider his views and concludes that Respondent
has not satisfied his burden with respect to the mature child defense. In making this determination,
the court, during the course of its questioning J.G.V. took into account the child’s facial expressions,
some of which were quizzical, as well as his body movements, posture, speech pattern, and pauses
in answering questions. That J.G.V. was speaking through an interpreter did not affect the court’s
ability to assess his demeanor and level of maturity.
Accordingly, ordering the return of J.G.V. to Mexico and the custody Petitioner is not only
mandatory under the Convention and ICARA , but it is also warranted under the circumstances of
this case.
15

J.G.V’s statement that a lie will eventually be revealed or come to light is obviously something he heard from
an adult or mature person, and he was simply repeating what he heard to the best of his recollection; however, the
statement is helpful in convincing the court that J.G.V. does not have the requisite level of maturity for the court to
consider his views in determining whether he should be returned to Mexico.
Memorandum Opinion and Order - Page 48

V.

Request for Fees and Costs
Petitioner has requested to recover her attorney’s fees and costs incurred as a result of this

action but has not, to date, submitted proof of the legal fees or costs she incurred. Regarding the
recovery of fees and costs in wrongful removal and retention proceedings under the Convention and
ICARA, article 26 of the Convention states that the court “may, where appropriate” order the
removing parent to cover all legal and travel expenses of the nonremoving party. See Convention,
art. 26; Sealed Appellant, 394 F.3d at 346. ICARA, on the other hand, requires the court to order
the removing parent to pay fees and costs incurred by the petitioner if it finds in favor of the
petitioner and orders the return of the child:
Any court ordering the return of a child pursuant to an action brought under
section 11603 of this title shall order the respondent to pay necessary expenses
incurred by or on behalf of the petitioner, including court costs, legal fees . . . and
transportation costs related to the return of the child, unless the respondent
establishes that such order would be clearly inappropriate.
22 U.S.C. § 9007(b)(3) (emphasis added) (formerly 42 U.S.C. § 11607); Sealed Appellant, 394 F.3d
346.
The court believes that Petitioner is entitled to recover against Respondent all reasonable and
necessary attorney’s fees and expenses pursuant to 22 U.S.C. § 9007(b)(3); however, the court
cannot make a final determination on the issue of attorney’s fees and expenses, as the parties have
not fully briefed this matter. Accordingly, Petitioner shall file within 14 days of this Memorandum
Opinion and Order, an application detailing the services rendered and expenses incurred and
supporting authority for and documentation of all fees and costs requested. See Fed. R. Civ. P.
54(d)(2)(B)(i). Any objections or response by Respondent must be filed within 14 days from the
date of service of Petitioner’s submission. Petitioner may file a reply within 7 days from the date

Memorandum Opinion and Order - Page 49

of service of Respondent’s objections or response. Unless Respondent is able to establish that the
requested award is “clearly inappropriate,” the court will enter an appropriate monetary award of
attorney’s fees and expenses.
VI.

Conclusion
For the reasons herein stated, the court grants the Petition for Return of Child to Petitioner

and orders that the child, J.G.V., be returned forthwith to Mexico to the custody of his mother,
Petitioner Berenice Vega Ostos, at the conclusion of the final hearing conducted by the court on June
10, 2015. The court orders that Respondent Jose Alfredo Vega immediately release and surrender
J.G.V. to Petitioner. Further, neither Respondent nor anyone on his behalf shall take any action to
interfere or thwart this court’s order. If any person interferes with the court’s directives herein,
such person will be subject to the imposition of severe sanctions, including, but not limited to, arrest
and incarceration for contempt of court.
The court retains jurisdiction over this matter pending J.G.V.’s return to Mexico to the
custody of Petitioner and the resolution of any motion for attorney’s fees and costs. Judgment will
issue by separate document as required by Federal Rule of Civil Procedure 58.
It is so ordered this 10th day of June, 2015.

_________________________________
Sam A. Lindsay
United States District Judge

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