Leticia Isabel Velarde v. Johnathan Asher Gurgan
FINDINGS OF FACT AND CONCLUSIONS OF LAW - The Court ORDERS that the minor child A.G. be returned forthwith to the custody of Petitioner Leticia Velarde. As discussed at the evidentiary hearing, the Court ORDERS that Petitioner Velarde be allowed to retrieve A.G. from San Marcos as soon as she is able to do so, and Respondent shall cooperate fully in the return of the child. Signed by Judge Xavier Rodriguez. (rg)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
LETICIA ISABEL VELARDE,
JOHNATHAN ASHER GURGAN,
Civil Action No. SA-17-CA-792-XR
On August 21, 2017, Petitioner Leticia Isabel Velarde filed a Verified Petition for Return of
Child, requesting return of her son A.G. pursuant to the Convention on the Civil Aspects of
International Child Abduction, done at the Hague on October 25, 1980 (the “Hague Convention”),
and the International Child Abduction Remedies Act (“ICARA”). Petitioner alleges that A.G. was
wrongfully removed from his country of habitual residence (Mexico) in violation of her custody
rights, and seeks a return order. The Court conducted a bench trial on the merits of the Petition on
October 4, 2017, and concludes that A.G. was wrongfully removed and that a return order is
FACT FINDINGS AND CONCLUSIONS OF LAW
The Court issues the following findings of fact and conclusions of law pursuant to Rule 52.
To the extent any finding of fact herein is more aptly characterized as a conclusion of law, or any
conclusion of law is more aptly characterized as a finding of fact, the Court adopts it as such.
Findings of Fact
1. Petitioner Leticia Isabel Velarde was born in Laredo, Texas and is a United States citizen. Her
mother crossed the border to give birth and then returned to Mexico. Petitioner grew up in Mexico
and is also a Mexican citizen. Her family resided in Nuevo Laredo, Mexico.
2. Respondent Johnathan Asher Gurgan is a United States citizen.
3. Petitioner came to the United States in 2002 for employment and stayed until 2013.
4. Petitioner Velarde and Respondent Gurgan met in 2005 and were married in Hays County, Texas
on December 30, 2008. The parties vacationed in Mexico before they were married. Ex-6.
5. The couple spent Christmas 2011 in Veracruz with Petitioner’s family. Ex-6. They vacationed
in Mexico after they were married. Ex-7.
6. In early 2012, Petitioner and Respondent purchased undeveloped land in Canyon Lake, New
Braunfels. Respondent began constructing a home on the property, but it was never completed.
7. As early as February 2012, the couple discussed living in Mexico. Ex-5 (Respondent states “I
want to learn Spanish and live in VER with you”).
8. On November 8, 2012, A.G. was born in New Braunfels, Comal County, Texas. He is a United
States citizen. Petitioner testified that she believed he was also a Mexican citizen by virtue of his
birth to a Mexican mother.
9. At the time of A.G.’s birth, Respondent was a factory distributor for Kirby Vacuum and was
attending school at Austin Community College. He obtained an associate’s degree in business
administration. He planned to pursue a bachelor’s degree and talked of eventually obtaining a
commercial pilot’s license.
10. At some point around 2012, Respondent was briefly hospitalized for fatigue and diagnosed by
a doctor at UT Health Science Center with bipolar disorder, but he has not received treatment or
taken medication related to this diagnosis.
11. In August 2013, Respondent enrolled in University of Texas San Antonio (“UTSA”). He
testified that he needed a degree as a “check in the box” for a commercial pilot’s license.
12. The family lived together in an apartment in New Braunfels from the time of A.G.’s birth in
November 2012 until October 2013, when they moved together to Mexico. During this time, they
discussed moving to and living in Mexico. Respondent and his mother both had a good relationship
with Petitioner’s family in Mexico.
13. Sometime in the year before their move to Mexico, the family voluntarily repossessed their Jeep.
14. Due to financial issues, the cheaper cost of living in Mexico, the desire to be near Petitioner’s
family in Mexico while being close to the university in Laredo, Texas, and possibly a desire to
remove themselves from issues with Child Protective Services, Petitioner and Respondent jointly
agreed to move the family to Mexico in October 2013. Although it is undisputed that the parents
jointly agreed to move to Mexico, the duration of the planned move is disputed.
15. Respondent testified that, at the time of the move, he did not have the intent to abandon the
United States to take permanent residence in Mexico. In contrast, Petitioner testified that they were
“finally moving to Mexico” as they had talked about ever since they met, and her intention at the
time of the move was not to return to the United States. She testified that they had visited often and
always talked about living there, and when A.G. was born it seemed like the perfect opportunity for
her to go back to her family and friends there with her son and husband. She testified that although
they had talked about moving before then, she was enjoying her job, Respondent did not want to yet,
and life did not present the opportunity.
16. The family moved to Nuevo Laredo, Tamaulipas Mexico in mid-October 2013. A.G. was 11
months old. They agreed that Petitioner would be a housewife and take care of A.G. and Respondent
would go to school at Texas A&M International in Laredo, Texas. Nuevo Laredo, Mexico and
Laredo, Texas are adjacent to each other, directly across the Mexican-United States border.
17. Petitioner agreed that they planned for Respondent to enroll in “international school” in Laredo,
Texas, and that she supported that. She also testified that he discussed many things, including
“opening businesses, continu[ing] school, going to pilot school, moving to different places in the
world . . . always something different.” She testified that some of his plans included businesses in
Mexico, and that he was studying international business because he wanted to do business in
Mexico. She agreed that he might have taken a job in Laredo, Texas, but said he would not have
taken a job in Houston, Texas. Petitioner testified that they discussed Respondent’s going to pilot
school in Monterrey, Mexico because it was cheaper than in the United States. She agreed that the
family’s economic opportunities would be better if Respondent had U.S. employment, but she stated
that he wanted to start his own business rather than be an employee. She also agreed that A.G.’s best
opportunity could be in Texas and she would be okay with his crossing the border any time and
would even consider having him attend school in Laredo, Texas. There was no specific testimony
that, had Respondent taken a job in Laredo, the family would have moved back to Texas.
18. A few days after the move to Nuevo Laredo, Petitioner emailed numerous pictures of the Nuevo
Laredo home to Respondent’s mother, Jane Dahlke, and Dahlke responded, “Its so beautiful. Wow,
what a nice home. You guys are going to be so happy there. Very nice. I’m excited. Jane.” Ex-1.
19. Respondent “pretty much took all of his personal items with him” to Mexico, including
documents, trophies, and childhood memorabilia, some of which had been in storage in New
Braunfels or San Marcos. Ex-4. The family also brought their dog.
20. Respondent maintained his Texas cell phone number and testified that he maintained a
“permanent address” at his mother’s address in San Marcos, Texas. He received his VA benefits at
that address. He filed U.S. tax returns. He maintained his bank account in San Marcos, Texas and
opened one in Laredo, Texas. Respondent did not speak Spanish at the time of the move.
21. Petitioner paid Mexican taxes, got a Mexican driver’s license, and opened a bank account in
22. A.G. had a pediatrician in Mexico beginning at the time of the family’s move there.
23. The family leased a home with a one-year lease in Petitioner’s name. Respondent could not be
on the lease because he was not a Mexican citizen. They furnished the home and lived there as a
family. They spent time with Petitioner’s family, including her sisters and mother. Because
Petitioner was a housewife taking care of A.G., she and A.G. spent a lot of time with her family in
Mexico, especially his two cousins who were close in age. The family vacationed in Mexico and
spent Christmases there. Respondent’s mother also visited the family in Mexico. There was no
testimony or evidence that A.G. spent appreciable time in Texas after the move.
24. Respondent withdrew from UTSA without completing the fall semester. He enrolled in
international economics at Texas A&M International in Laredo, Texas in January 2014. Respondent
intended to get a bachelor’s degree and eventually a commercial pilot’s license. Respondent testified
that he enrolled in school in the U.S. because he wanted to “earn dollars.”
25. Respondent did not obtain a visa or other legal permission to reside in Mexico. He crossed the
border to attend school. He never had a problem crossing the border.
26. Petitioner and Respondent did not take any official steps to obtain Mexican citizenship for A.G.
Petitioner testified that she did not believe it was necessary because he would be a citizen by default
by being born to a Mexican citizen. Petitioner also testified that Respondent did not require a visa
to live in Mexico because he was married to a Mexican citizen, and his only restriction was that he
could not “get a job.”
27. Financially, the family lived on a combination of Respondent’s VA benefits, student loans, and
residual income from selling Kirby vacuums. His combined income was about $1500 to $2000 a
month, and his mother also provided $300-$400 a month. Rent on the Nuevo Laredo home was
$500 per month. It was a nice home, and Respondent testified that he could “get more bang for the
buck” by living in Nuevo Laredo.
28. After the one-year lease on their home expired, the family remained in the home on a month-tomonth basis for another year and four months.
29. Petitioner testified that she began working on her home-based natural soap and skin care product
business in Nuevo Laredo in 2014, and registered her business in Mexico and began paying taxes
on it in 2015. Ex-15. A Mexican newspaper featured the business in May 2017. Ex-16.
30. In 2015, Petitioner and Respondent sold the Canyon Lake property. They financed a deposit on
a Riviera Maya property in Tulum, Mexico that was in Petitioner’s name. Ex-3, Ex-9. Respondent
could not recall whether any of the deposit funds came from the sale of the Canyon Lake property.
Respondent sought out the Riviera Maya property and wanted to buy it. Respondent testified that
it was intended as a business investment and vacation property.
31. Respondent’s VA benefits were exhausted in November 2015. His Kirby vacuum residual
income also ended in December 2015.
32. In December 2015, Respondent obtained his bachelor’s degree from Texas A&M International
33. In January 2016, Respondent enrolled in graduate school at Texas A&M International in Laredo,
Texas to obtain an MBA in international business, with a plan to graduate in December 2016.
Respondent stated he believed he needed to save up money before going to pilot school and believed
he would have a higher income potential with a graduate degree. He began attending career fairs and
talking with potential employers in the United States, including the U.S. Army and Customs and
Border Protection. He did not specify whether this employment would be in Laredo or elsewhere.
34. In February 2016, the family moved to another leased home in Nuevo Laredo, Oaxaca 3114.
With Respondent’s agreement, Petitioner signed a one-year lease.
35. At some time in early 2016, Respondent notified the seller of the Maya property that due to
financial constraints, he would not be able to complete the purchase of the property.
36. By 2016, Respondent’s religious views changed dramatically and became more intense, as did
his general outlook on life. Ex-10, Ex-12. Petitioner testified that he became controlling of
Petitioner. The marriage was strained.
37. In mid-2016, Petitioner started discussing the possibility of divorce with Respondent.
Respondent was upset and was opposed to getting a divorce. Family members were aware of the
discussions and the negotiations about the divorce, including conversations about sharing custody
38. Petitioner testified that Respondent’s attitude about staying in Mexico changed sometime after
June 2016. She testified that her intent to stay in Mexico had not changed.
39. On October 30, 2016, Respondent took A.G. to an apartment in Laredo, Texas without
Petitioner’s knowledge. He told her he was taking A.G. to Laredo to shop. Petitioner learned about
it and went to Laredo and stayed in the apartment with them to convince Respondent to return to
Mexico. The next day, the family returned to Mexico. Shortly after that event, Petitioner exchanged
text messages with Respondent’s mother, who stated “I thought you both agreed to trust each other
and noone takes him. [Respondent] will not break that trust.” Petitioner contends that the text
messages from Respondent’s family that he would not break his word or take A.G. indicates that
they knew of his intent to have Mexico as his habitual residence.
40. On November 25, 2016, Petitioner filed for divorce in Mexico (3rd Judicial District of Nuevo
Laredo, Tamaulipas, Mexico).
41. On November 30, 2016, Respondent said he was taking A.G. to the park but instead took the
child to San Marcos, Hays County to the residence of his mother. Respondent testified that, at the
time he took A.G., he thought Petitioner might have filed for divorce. A.G. was four years old and
had been living in Mexico with his parents continuously since he was 11 months old.
42. Before taking A.G. to San Marcos, Respondent researched the requirements of the Hague
Convention, and he left some of his research and notes behind in Mexico. Next to the sentence
“Therefore, failing to consider shared parental intent could potentially cause the court to overlook
whether a parent is acting unilaterally to alter what had been previously agreed to by both parents,”
which Respondent partially underlined, Respondent wrote, “we had agreed to stay in Mexico if
possible from an employment perspective but I knew that Letty would not want to return. I didn’t
either except for the divorce idea.” Ex-13. Also in the margin he had written “this is our house”;
“1 yr lease”; “intention.” Id.
43. At the time Respondent took A.G. to San Marcos, he had not completed his studies at Texas
A&M in Laredo, Texas. The distance between San Marcos, Texas and Laredo, Texas is 205 miles
(approximately 3 hours by car).
44. On December 5, 2016, Respondent filed a suit for possession and custody in 22nd District Court,
Hays County. Ex-14. He stated that he did not want a divorce.
45. On December 8, 2016, the Nuevo Laredo Attorney General began an investigatory proceeding.
46. On December 16, 2016, Mexico issued an arrest warrant for Respondent.
47. On July 13, 2017, the Mexican court issued a divorce decree.
48. On August 21, 2017, this proceeding was filed.
Conclusions of Law
1. This case arises under the Hague Convention on the Civil Aspects of International Child
Abduction, Oct. 24, 1980, T.I.A.S. No. 11670, S. Treaty Doc. No. 99-11. The Convention seeks “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.” Art. 1, Treat Doc., at 7.
2. The Convention provides that a child removed in violation of “rights of custody” must be returned
to the child’s country of habitual residence, unless certain exceptions apply. Abbott v. Abbott, 560
U.S. 1 (2010). The Convention is based on the principle that the best interests of the child are well
served when decisions regarding custody rights are made in the country of habitual residence. Id.
at 19. Ordering a return remedy does not alter the existing allocation of custody rights, but does
allow the courts of the home country to decide what is in the child’s best interests. Id.
3. Article 3 of the Convention states: The removal or the retention of the child is to be considered
a it is in breach of rights of custody attributed to a person, an institution or any other
body, either jointly or alone, under the law of the State in which the child was
habitually resident immediately before the removal or retention; and
b 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.
4. Article 5 of the Convention states that for the purposes of the Convention, “rights of custody”
shall include rights relating to the care of the person of the child and, in particular, the right to
determine the child’s place of residence.
5. Article 12 of the Convention states: Where a child has been wrongfully removed or retained in
terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or
administrative authority of the Contracting State where the child is, a period of less than one year
has elapsed from the date of the wrongful removal or retention, the authority concerned shall order
the return of the child forthwith.
6. The United States has implemented the Convention through the International Child Abduction
Remedies Act (“ICARA”), 22 U.S.C. §§ 9001-9011. Abbott, 560 U.S. at 5. The statute authorizes
a person who seeks a child’s return to file a petition in state or federal court and instructs that the
court “shall decide the case in accordance with the Convention.” Id. (citing 22 U.S.C. §§ 9003(a),
(b), (d)). If the child in question has been “wrongfully removed or retained within the meaning of
the Convention,” the child shall be “promptly returned,” unless an exception is applicable. Id. (citing
7. To establish her claim for wrongful removal, Petitioner must prove the following elements by a
preponderance of the evidence: (1) Respondent removed or retained the child somewhere other than
the child’s habitual residence; (2) the removal or retention violated Petitioner’s rights of custody
under the habitual residence nation’s laws; and (3) at the time of removal or retention, those rights
were actually being 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).
8. “Habitual residence” is not defined in the Hague Convention, and determination of a child’s
habitual residence “is a fact intensive-determination that necessarily varies with the circumstances
of each case.” Larbie, 690 F.3d at 310. Determination of habitual residence presents a mixed
question of law and fact. Id. at 306. To determine the child’s habitual residence at the time
immediately prior to removal, the Fifth Circuit has joined the majority of circuits that “have adopted
an approach that begins with the parents’ shared intent or settled purpose regarding their child’s
residence.” Id. at 310. This is called the last shared intent approach. “[T]he threshold test is
whether both parents intended for the child to ‘abandon the [habitual residence] left behind.” Larbie,
690 F.3d at 310-11 (quoting Mozes v. Mozes, 239 F.3d 1067, 1075 (9th Cir. 2001)). Absent shared
intent, “prior habitual residence should be deemed supplanted only where ‘the objective facts point
unequivocally’ to this conclusion.” Id.
9. “Much of the existing case law discussing a child’s habitual residence involves situations where
the parents were still together at the time of the child’s birth, made plans for the child’s future, and
only later did the family unit begin to dissolve. In these situations, the court’s task is usually to try
to determine when the parents last had a shared plan regarding their child’s future, and what that plan
entailed.” Berezowsky v. Ojeda, 765 F.3d 456, 468 (5th Cir. 2014). A shared parental intent requires
that the parents actually share or jointly develop the intention; the parents must reach some sort of
meeting of the minds regarding the child’s habitual residence, so that they are making the decision
10. A child is “wrongfully removed” if he was removed in violation of a right of custody. Abbott,
560 U.S. at 9. The Convention does not require any sort of formal custody order or private legal
agreement, as rights of custody may exist by operation of law. Where no formal custody agreement
exists, courts must apply the laws of the country of the child’s habitual residence to determine if the
non-removing parent had “rights of custody” within the meaning of the Convention. Sealed v.
Sealed, 394 F.3d 338, 343 (5th Cir. 2004). The Convention recognizes that custody rights can be
decreed jointly or alone, and defines “rights of custody” to “include rights relating to the care of the
person of the child and, in particular, the right to determine the child’s place of residence.” Id. The
phrase “place of residence” encompasses the child’s country of residence. Abbott, 560 U.S. at 11.
Thus, the right to choose the child’s country of residence is a right “relating to the care of the person
of the child” and is a right of custody. Id. The Convention protects rights of custody when “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.” Id.
11. When the country of habitual residence has more than one territorial unit, the habitual residence
refers to the particular territorial unit in which the child was resident, and the applicable laws are
those in effect in that territorial unit. Convention, Art. 31. The Court has taken judicial notice of
the relevant foreign law as permitted by Article 14 of the Convention. In addition, Petitioner has
provided the Affidavit of Mariano Nuñez Arreola, an attorney licensed to practice in Mexico. Ex-18.
Mexican choice-of-law rules require that Mexico apply the law of the Mexican State in which the
child was habitually resident prior to the child’s removal. Whallon v. Lynn, 230 F.3d 450, 456 n.6
(1st Cir. 2000). Arreola’s affidavit also asserts that the Mexican Federal Civil Code and the Civil
Code of Tamaulipas should be applied if the child is determined to have been habitually resident in
Tamaulipas. He states that the Tamalaupis Family Code is consistent with the laws of most of the
states of Mexico regarding custodial rights of parents in that Tamaulipas Civil Code Article 383
provides that each parent has parental authority and responsibility, or patria postestad, with respect
to their child, and Article 382 provides that parental authority/responsibility is exercised over
children. He states that, in the Mexican state of Tamaulipas, parents of legitimate children
presumptively exercise their authority/responsibility, or patria potestas, jointly. The Court finds that
the Civil Code of the State of Tamaulipas, Mexico Articles 386 and 387, recognizes the doctrine of
patria potestas. Pursuant to that doctrine, both parents have joint custody rights, and these are
“rights of custody” under the Hague Convention. Garcia v. Pinelo, 808 F.3d 1158,1167 (7th Cir.
2015); Mota v. Castillo, 692 F.3d 108, 116-17 (2d Cir. 2012); Gallardo v. Orozco, 954 F. Supp. 2d
555, 573 (W.D. Tex. 2013); Castro v. Martinez, 872 F. Supp. 2d 546, 554-55 (W.D. Tex. 2012).
12. Even if the child has been wrongfully removed, a return order is not automatic. Return is not
required if the abducting parent can establish that a Convention exception applies. Abbott, 560 U.S.
at 22. Article 13 of the Convention provides that the judicial or administrative authority of the
requested State is not bound to order the return of the child if the person, institution or other body
who opposes its return establishes that (1) Petitioner was not actually exercising the custody rights
at the time of removal or retention, or had consented to or subsequently acquiesced in the removal
or retention; or (2) there is a grave risk that his return would expose the child to physical or
psychological harm or otherwise place the child in an intolerable situation. Larbie, 690 F.3d at 308.
The judicial authority 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. None of these exceptions apply in this case.
13. The United States and Mexico are both Contracting States to the Hague Convention, and the
child at issue is under 16 years old. This Court has jurisdiction and the Hague Convention applies
to this dispute because the child was removed from a country that is a contracting state, Mexico, the
child is under age 16, the child is located in this federal district, and the child is not the subject of
any other Hague proceeding
14. Immediately prior to the removal in November 2016, A.G. was habitually resident in Mexico.
15. The child was wrongfully removed from his country of habitual residence, Mexico.
16. The removal was in violation of Petitioner’s rights of custody under Mexican law.
17. Prior to the removal, Petitioner was actually exercising her right of custody. Respondent “agrees
that prior to him and the child leaving Mexico both parties were exercising custody.” Answer ¶ 9.
18. No exceptions apply, and therefore a return order is required.
Analysis of habitual residence issue
The only real dispute in this case is whether Mexico or the United States was the country of
A.G.’s habitual residence immediately prior to the removal in November 2016. Unfortunately,
though “‘habitual residence’ is the central – often outcome-determinative – concept on which the
entire system is founded,” cases reach apparently conflicting results and there remains “interpretive
variability” among circuit courts. Mozes v. Mozes, 239F.3d 1067, 1072 (9th Cir. 2001); Headifen
v. Harker, 549 F. App’x 300, 300 (5th Cir. 2013).
Petitioner contends that the parties agreed to move to Mexico permanently, and that
Respondent unilaterally changed his mind in 2016 when his behavior and religious views changed
and Petitioner began discussing a possible divorce. Second Am. Compl. ¶ 3 (“In October of 2013,
the parties made a permanent move to Nueveo Laredo, Mexico . . . .”). Respondent contends that
he and Petitioner never agreed to move to Mexico permanently, but only for a limited duration while
Respondent completed his education, and that A.G.’s country of habitual residence has always
remained the United States. Answer ¶¶ 1, 4 (“Respondent asserts that the move to Nuevo Laredo
was temporary as Respondent continued his education in Laredo, Texas.”), ¶¶ 6, 11, 12.
For Petitioner to succeed, she must first “show that the respondent removed or retained the
child somewhere other than the child’s habitual residence.” Larbie v. Larbie, 690 F.3d 295, 307 (5th
Cir. 2012). Although the term “habitual residence” appears throughout the various Hague
Conventions, none of them defines it. Id. at 310. The inquiry is not formulaic; rather it is a factintensive determination that necessarily varies with the circumstances of each case. Id. “At core,
however, the inquiry balances the interests of the child, who is the ultimate focus of the Convention,
and the intentions of its parents, who usually effect the removal or retention giving rise to a
Convention petition.” Id.
In 2012, the Fifth Circuit “join[ed] the majority of circuits that ‘have adopted an approach
that begins with the parents’ shared intent or settled purpose regarding their child’s residence.’” Id.
“This approach does not ignore the child’s experience, but rather gives greater weight to the parents’
subjective intentions relative to the child’s age” and “parents’ intentions should be dispositive where
. . . the child is so young that ‘he or she cannot possibly decide the issue of residency.” Id. In such
cases, “the threshold test is whether both parents intended for the child to ‘abandon the [habitual
residence] left behind.” Id. at 310-11. Absent shared intent, prior habitual residence should be
deemed supplanted only where the objective facts point unequivocally to this conclusion. Id. at 311.
Context, rather than specific periods of time spent in one location or another, is key. Berezowsky
v. Ojeda, 765 F.3d 456, 467 (5th Cir. 2014).
A. Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001)
The Fifth Circuit has often favorably cited the Ninth Circuit’s lengthy and thorough
discussion of habitual residence in Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001).1 The Mozes court
divided the cases on habitual residence into three broad categories.
Mozes first category:
On one side are cases where the court finds that the family as a unit has manifested
a settled purpose to change habitual residence, despite the fact that one parent may
have had qualms about the move. Most commonly, this occurs when both parents
and the child translocate under circumstances suggesting that they intend to make
their home in the new country. When courts find that a family has jointly taken all
the steps associated with abandoning habitual residence in one country to take it up
in another, they are generally unwilling to let one parent’s alleged reservations about
the move stand in the way of finding a shared intent and settled purpose.
Cartes v. Phillips, 865 F.3d 277, 283 (5th Cir. 2017) (noting that the Fifth Circuit frequently cites
Mozes “with favor”).
Mozes, 239 F.3d at 1077. The United States cases in this category were Feder v. Evans-Feder, 63
F.3d 217, 224 (3d Cir. 1995); Walton v. Walton, 925 F. Supp. 453, 457 (S.D. Miss. 1996); Prevot
v. Prevot, 855 F. Supp. 915, 920 (W.D. Tenn. 1994), overruled on other grounds, 59 F.3d 556 (6th
Cir. 1995); and Harsacky v. Harsacky, 930 S.W.2d 410, 415 (Ky. Ct. App. 1996).
In Feder, the child was born in Germany to American parents and the family moved to
Pennsylvania when the child was about three months old. When the child was three and a half, the
family from the United States to Australia “where [the child] was to live for at the very least the
foreseeable future, and stayed in Australia for close to six months, a significant period of time for
a four-year old child.” Feder, 63 F.3d at 224. The father was enthusiastic about the move, but the
mother was reluctant and had misgivings about the couple’s deteriorating marital relationship.
Nevertheless, the mother decided in favor of keeping the family together and agreed to the move,
intending to work toward salvaging her marriage.
The court noted that the child attended preschool and was enrolled in kindergarten for the
upcoming year, participating in one of the most central activities in a child’s life. Id. It further noted
that “[a]lthough Mr. and Mrs. Feder viewed Australia very differently, both agreed to move to that
country and live there with one another and their son, and did what parents intent on making a new
home for themselves and their child do – they purchased and renovated a house, pursued interests
and employment, and arranged for [the child’s] immediate and long-term schooling.” Id. That the
mother did not intend to remain in Australia permanently and believed that she would leave if her
marriage did not improve did not “void the couple’s settled purpose to live as a family in the place
where Mr. Feder had found work.” Id. In finding that Australia was the child’s habitual residence,
the Third Circuit defined habitual residence as “the place where [the child] has been physically
present for an amount of time sufficient for acclimatization and which has a ‘degree of settled
purpose’ from the child’s perspective”; it also held that “a determination of whether any particular
place satisfies this standard must focus on the child and consists of an analysis of the child’s
circumstances in that place and the parents’ present, shared intentions regarding their child’s
presence there.” Id.2
In Walton v. Walton, the facts were similar to Feder. The family moved from Texas to
Australia when the child was almost three years old. The father wanted the move and the mother
did not because the couple was having marital difficulties, but she decided to go with him. The
family leased a house in Australia and enrolled the children in school and day care; they vacationed
together in Australia; the family attended church together in Australia and the child had playmates
there; and the parents held a joint banking account in Australia. The parents eventually sought
divorce and, while the divorce proceedings were pending, the mother took the child back to the
United States (Mississippi) without the father’s consent after living in Australia for about one and
a half years.
The district court noted the lack of a clear standard, but noted that the Sixth Circuit had stated
to focus on the child, not the parents, and examine past experience, not future intentions, and that
“on its face, habitual residence pertains to customary residence prior to the removal” looking back
At the time it issued Feder, the Third Circuit did not focus heavily on shared parental intention or
necessarily consider an intent to abandon the prior habitual residence. However, it found that both parents
agreed to the child’s presence in Australia and noted that they had sold their house in the United States,
purchased and renovated a house in Australia, and moved their furniture. The father changed his driver’s
license and completed paperwork to obtain permanent residency for the entire family, while the mother did
not surrender her Pennsylvania license nor submit to the physical exam or sign the papers required of those
seeking permanent residency status. The mother then decided to leave her husband and return to the United
States with the child about six months after the family had moved to Australia.
in time, not forward. Walton, 925 F. Supp. at 457 (citing Friedrich v. Friedrich, 983 F.2d 1396 (6th
Cir. 1993)). The district court found that the family’s life in Australia had a settled purpose, that the
child had never resided in Mississippi, and that no evidence would justify a finding that Texas was
the child’s state of habitual residence, requiring the conclusion that Australia was the state of
habitual residence before her removal. Walton, 925 F. Supp. at 457-58.
In Prevot, 855 F. Supp. 915 (W.D. Tenn. 1994), the mother was an American citizen and the
father a French citizen, and the child was born in Tennessee. According to the mother, the father
wanted to return to France to escape certain obligations for criminal restitution and back taxes, and
the court found that, “for whatever reason, the decision was ultimately made to move to France.”
The family moved to France with their two children, the oldest of whom was only two. The parents
opened a restaurant, and the older child was enrolled in a local school while the younger child stayed
home. The parents then began having marital difficulties, and the mother first announced her desire
to return to the United States after almost two years in France; she then took the children back to the
United States without the father’s knowledge or consent after living in France for just over two years.
The court followed Friedrich and found that the children were habitual residents of France
when they were removed, noting that the parents made the conscious decision to relocate in France,
and the family lived there for more than two years before the mother brought them back to the United
States. The children had acclimated to France and the family established a business with the full
intent that France was to be their permanent home, and it was only after the parties began
experiencing marital difficulties that the mother’s plans changed.
In Harsacky v. Harsacky, 930 S.W.2d 410 (Ky. App. 1996), the mother was a native of
Finland the father a citizen of the United States, and the children were born in California. When the
children were under the age of two, the family moved to Kentucky for two months, and then to
Finland, where they remained for almost three years. The parties then moved back to the United
States—the father stated the move was permanent, while the mother stated it was a vacation or a stay
of indefinite duration. They leased their house in Finland and sold many items, including their cars
and furniture, and brought their personal items and clothing to the United States, at considerable
expense. Given the type of property they sold in Finland and brought to the United States, the court
was “persuaded that the parties intended to relocate to the United States on an indefinite basis, if not
permanently.” Id. at 412. In the United States, they leased apartments, purchased automobiles, and
sought employment. Although the mother denied any intention to live permanently in the United
States, she acknowledged that they may have stayed for as long as a year if her husband was able to
The court found “that the parties intended to live in this country on an indefinite basis and
that they brought their children here for that purpose.” Id. After about a month in Texas, the parents
had a violent domestic dispute, and the father took the children to Kentucky, and a couple of months
later, the mother filed a Hague petition asserting that the children should be returned to Finland. The
court rejected the mother’s contention that Finland was the children’s country of habitual residence,
reasoning that “the Court must ask whether the parent intended or agreed that the jurisdiction would
be home to the child, if only for an indefinite period.” Id. at 414. The Court rejected the mother’s
argument that she had previously decided to return with the children to Finland, noting that the
habitual residence determination must focus on the child, not the parents, and examine past
experience, not future intentions. Id.
Mozes second category:
Discussing a second category of cases, the Mozes court noted that “[o]n the other side are
cases where the child’s initial translocation from an established habitual residence was clearly
intended to be of a specific, delimited period. In these cases, courts have generally refused to find
that the changed intentions of one parent led to an alteration in the child’s habitual residence.”
Mozes, 239 F.3d at 1077. The cases cited in footnote 27 are illuminating about what the court
viewed as specific, delimited periods:
See, e.g., Pesin v. Rodriguez, 77 F. Supp. 2d 1277, 1285 (S.D. Fla. 1999) (settled
purpose of family trip was a vacation of finite duration); In re Morris, 55 F.Supp.2d.
1156, 1159 (D. Colo. 1999) (when family left Colorado for 10-month teaching
appointment in Switzerland, the parties had a “shared, settled intention to return to
Colorado with the child,” and mother’s unilateral change of position could not make
Switzerland the habitual residence); Freier v. Freier, 969 F. Supp. 436, 438 (E.D.
Mich. 1996) (when mother left with child, she informed father that she would be
vacationing with parents for one month); Flores v. Contreras, 981 S.W.2d 246, 248
(Tex. App. 1998) (mother brought child to Texas for two-week vacation); Brennan
v. Cibault, 227 A.D.2d 965, 965, 643 N.Y.S.2d 780 (N.Y. App. Div. 1996) (mother
agreed that child should remain with father in New York for six months, but expected
her to return to France on a specific date).
Mozes, 239 F.3d at 1077 n.27. In Pesin, although the family was together, the purchase of round
trip tickets and the fact that the parties had packed for only a temporary visit indicated that the
parents’ settled purpose was a family vacation of finite duration, and thus the court found that 23
days in Florida was insufficient to create a new habitual residence there. 77 F. Supp. 2d 1277, 128485 (S.D. Fla. 1999).
In Morris, the father was awarded a 10-month sabbatical leave and a one-term guest
teaching appointment at a university in Switzerland. The parents sold their home prior to leaving
Colorado with the intention of returning and purchasing a larger home, and stored their furniture
and other household items in Denver. The father signed a contract with his employer agreeing to
resume his normal teaching position in Colorado upon his return, and the mother sent a letter to her
Colorado employer stating that she desired to return to her position when she and the father returned
to Colorado. At the time the parties left for Switzerland, the father fully intended to return to
Colorado with his wife and children at the conclusion of the sabbatical and believed the mother also
intended to return to Colorado to purchase a home and resume her employment. The mother
testified that she did not have a fixed intent to return and stay in Colorado but was keeping
The court found that at the time the parties left Colorado for Switzerland, they had a shared,
settled intention to return to Colorado with the child. 55 F. Supp. 2d 1156, 1159 (D. Colo. 1999).
The court found “no dispute that the child’s habitual residence was Colorado before the family went
to Switzerland” and held that it remained there. Id. at 1161. The fact that the parents and the child
were physically present in Switzerland for some period of time did not alone shift the habitual
residence. Id. The court noted that the parents had lived in Switzerland only 104 days of the total
205 days away from Colorado, and the remainder was spent either living in Germany or vacationing
elsewhere in Europe. Id. The court noted that “the duration of the residence in the contracting state
is a factor for consideration” and where the duration “is intended to be indefinite, the habitual
residence of a child is usually in that foreign country,” whereas if the “stay is intended for a limited,
distinct period of time, especially for less than one year, courts have been reluctant to find that a
new habitual residence has been established.” Id. The court found that the “parties’ shared
intention was to remain in Switzerland for a limited period of time defined by the Father’s
sabbatical leave.” Id. at 1162. It noted that the parties resided in Switzerland for only four months,
and although they sold their home in Colorado, they intended to purchase a new and larger home
upon their return, and that their intent was manifested by the fact that they stored their furniture and
car in Colorado and the child traveled to Switzerland on a U.S. passport with a round-trip ticket.
Id. The court did not find credible the mother’s testimony that she intended to remain in
Switzerland, given her ties to and family in Germany and statements she had made about her intent
to move to Germany.
The court noted several sabbatical cases in which the parties arrived at the sabbatical
location with a shared intent to return to their state of origin, but at some point during the sabbatical
one of the parties changed his or her mind and expressed an intent to remain in the new state. Those
courts found that the child’s habitual residence remained in the state of origin, and the unilateral
change in position of one parent was not sufficient to alter the parents’ settled intention that their
state of origin was to remain the habitual residence of the child during the sabbatical. Id. The court
held that “in a sabbatical situation . . . in which a family intends to be in a foreign country for a
defined period of time of less than one year and for a defined, specific purpose, a parent’s
unilaterally changed intent is not enough to shift the habitual residence of a minor child.” Id.
In Freier v. Freier, 969 F. Supp. 436 (E.D. Mich. 1996), the child was born in Israel and
lived there with the parents, but vacationed during the summers in Michigan with her mother at her
parents’ home. When the child was four, the mother took her to Michigan on July 1, ostensibly for
vacation with return tickets on August 1. On July 17, the mother told the father she wanted a
divorce and was not returning. The father then filed a Hague proceeding, arguing that the child’s
habitual residence was Israel, and the court agreed.
In Flores v. Contreras, 981 S.W.2d 246 (Tex. App.–San Antonio 1998, pet. denied), the
child was born in Mexico to a Mexican mother and American father, and lived with his mother in
Mexico for 50 days until they came to San Antonio on a two-week visa. The mother asserted that
she stayed until the father and his ex-wife forced her to leave without her child, while the father
asserted that she came to marry him, changed her mind, and left the child with him willingly. The
mother than filed a Hague proceeding, and the court found that the child’s habitual residence was
In Brennan v. Cibault, 643 N.Y.S.2d 780 (N.Y. App. Div. 1996), the child was born in
France to an American father and French mother. The family lived in France for a year and four
months, when the father and child “arrived in New York for a six-week visit with [the father’s]
mother.” Id. at 781. The father had round-trip tickets and was expected to return in six weeks. The
marriage had been troubled, and the parents then decided to separate and discussed sharing custody,
with the child spending alternating six months with each of them. The mother offered the father
the first six-month period, but informed him that she expected the child to return to France on a
specific date at the end of that period. The father admitted having the discussions but denied
specifically agreeing to that arrangement. The mother purchased round-trip tickets to collect the
child in New York and return to France with her at the end of the six months. The father filed a
custody suit and served the mother when she arrived in New York to pick up the child.
The appeals court found that the trial court erred in concluding that the child was not a
habitual resident of France, noting that the term “refers to a ‘degree of settled purpose,’ as
evidenced by the child’s circumstances in that place and the shared intentions of the parents
regarding their child’s presence there.” Id. at 782 (citing Feder, 63 F.3d at 224). The court found
that the parents were married in France and had established professions and a home there, the child
was born there and lived there for the first 16 months of her life before she left for what was to be
a six-week visit with her grandmother in New York, and these “facts reflect a settled purpose on
the part of the parties to establish [the child’s] life in France.” Id.
Mozes third category:
The Ninth Circuit noted a third “in between” category “where the petitioning parent had
earlier consented to let the child stay abroad for some period of ambiguous duration” and
“[s]ometimes the circumstances surrounding the child’s stay are such that, despite the lack of
perfect consensus, the court finds the parents to have shared a settled mutual intent that the stay last
indefinitely.” Mozes, 239 F.3d at 1077. “When this is the case, we can reasonably infer a mutual
abandonment of the child’s prior habitual residence.” Id. The cases cited here are Falls v. Downie,
871 F. Supp. 100, 101 (D. Mass. 1994) (“Falls understood when Downie left with Patrick that he
and their child would be staying in the United States for an indefinite period of time.”); Slagenweit
v. Slagenweit, 841 F. Supp. 264, 269 (N.D. Iowa 1993) (“The parties mutually agreed that Sandra
would remain in the custody of Steven for an indefinite period of time in Iowa.”); Levesque v.
Levesque, 816 F. Supp. 662, 667 (D. Kan. 1993) (“[W]hen Britta and Vallery returned to Germany
. . . there was an intent to remain, at least for a period time which was indefinite. This was by
mutual agreement.”); Schroeder v. Perez, 664 N.E.2d 627, 632-33 (Ohio Comm. Pl. 1995) (“The
parties had mutually agreed that Gabriela would remain in the custody of the plaintiff for an
indefinite period in Ohio.”).
In the cited cases, the family did not move as a unit, but both parents agreed that the child
would remain with one parent in the new country for an indefinite period of time, and the courts
found that this agreement was sufficient to establish the child’s habitual residence in the new
In Slagenweit, 841 F. Supp. 264, 269 (N.D. Iowa 1993), the mother voluntarily brought the
child from Germany, her birthplace, to live with the father in Iowa in part to obtain medical
treatment, though the parties disputed their intent concerning the child’s custody at the time she was
left. The court concluded that it was intended that the child remain with the father for an indefinite
period of time, but “it was also the understanding of the parties that [the child] would eventually
return to Germany” though no specific return date was set. Id. at 266. Later, a specific return date
was set, but the child was not returned. The court found that Germany was no longer the child’s
place of habitual residence by the time of the alleged wrongful retention because the parties
mutually agreed that she would remain in the custody of the father for an indefinite period of time
in Iowa, there was a change in geography and a passage of time, and the child had become a
habitual resident of Iowa by her substantial involvement with her father and his girlfriend, the other
primary care giver, and the Iowa medical community. The court noted that the child “has very
much become a resident of the Cedar Rapids community, with the consent of both parents, so that
she could no longer be considered a habitual resident of Germany at the time of [the mother’s]
demand for her return.” Id. at 269.
In Levesque v. Levesque, 816 F. Supp. 662 (D. Kan. 1993), the child was born in Germany
in April 1989 and resided there until May 1991, when the mother and child moved to the United
States and stayed with family, and then joined the father in Kansas. In April 1992, the mother and
child returned to Germany for five weeks and then returned to Kansas. The mother stated that she
returned to get her belongings with the plan to return to Germany with the child , and the father
stated he believed they would only be gone for a short time. The mother and child returned to
Germany in June 1992, with the father’s permission. The father went to Germany in July and then
took the child back to the United States without the mother’s consent. The court found that “both
parents agreed that [the mother] would return to Germany for some period of time with [the child],”
the “amount of time was left open and [the father] agreed [the child] should go with [the mother]”;
and “[t]hese arrangements had been agreed to and ‘amounted to a purpose with a sufficient degree
of continuity to enable it properly to be described as settled.’” Id. at 666. The fact that, “by mutual
agreement,” when the mother and child returned to Germany, “there was an intent to remain, at least
for a period of time which was indefinite” was sufficient to make Germany the country of habitual
residence. Id. at 667.
In Schroeder v. Perez, 664 N.E.2d 627 (Ohio Comm. Pl. 1995), the child was born in
Mexico to an American mother and Spanish father. The child was a citizen of the United States,
Mexico, and Spain. When the child was about five months old, the family moved together to Spain.
The court noted that although the parties had intended to make their home in Spain, for at least the
time being, the mother had moved somewhat reluctantly, and later become discontented and left
Madrid with the child for a six-week visit to Ohio with her family, purchasing a round-trip ticket,
when the child was eight months old. The parents then discussed their marital problems and
whether either parent would move. Eventually both parents filed for divorce, but continued having
discussions about their marriage and their child. At no time did the father insist that the mother
return to Spain with the child, and even told the mother that she could have custody as long as they
could work out visitation once the child was old enough to travel. The father eventually told the
mother he was in love with another woman and did not want her to return. The father did not
participate in the hearing and the court therefore was “compelled to find that the child ha[d] not
been wrongfully retained in Ohio” because the mother left Spain with the father’s permission and
he knew where the child was and acquiesced in the mother’s living in Ohio with the child and had
not urged the plaintiff to return. The court found that “it was intended that [the child] remain with
her mother in the United States for an indefinite period of time” and when the defendant became
aware that the mother would not be returning with the child, “he raised no objection and indeed
acquiesced in the plaintiff’s remaining” in the U.S. Id. at 632.
Other times, the Ninth Circuit noted in Mozes, “circumstances are such that, even though
the exact length of the stay was left open to negotiation, the court is able to find no settled mutual
intent from which such abandonment [of a prior habitual residence] can be inferred.” Mozes, 239
F.3d at 1077. The cited cases include Meredith v. Meredith, 759 F. Supp. 1432, 1433 (D. Ariz.
1991) (petitioner suggested that respondent take children to France to visit her parents for an
unspecified period); Harkness v. Harkness, 577 N.W.2d 116, 118-19 (Mich. App. 1998) (children
were left with respondent’s parents in Michigan for eight months while both parents were in
Germany); Re A,  1 F.L.R. at 773 (mother’s agreement that child should attend school in
Pakistan for two years while living with father’s relatives was “temporary and conditional” and not
sufficient to change the child’s habitual residence); Re S and another,  1 All E.R. at 241
(Engl. Fam. Div. 1993) (family moved from Israel to England, where parents each had one year
teaching appointments, though it was not beyond the realms of possibility that they would have
Petitioner places the facts of this case within the first Mozes category. She contends that the
parties mutually agreed in October 2013 to move to Mexico permanently, though Respondent
planned to attend school just across the border in Laredo. She contends that Respondent then
unilaterally changed his mind in 2016, after his behavior and religious views changed and she began
discussing the possibility of divorce. Although Respondent contends that the family’s move to
Nuevo Laredo was intended to last only as long as he was in school and until he obtained
employment in the United States, the court agrees that the preponderance of the evidence supports
Petitioner’s testimony that the move to Nuevo Laredo was intended to be permanent or at least
indefinite, placing this case within the first or third Mozes category, both of which indicate a change
in habitual residence to Mexico.
The Court’s task is “to try to determine when the parents last had a shared plan regarding
their child’s future, and what that plan entailed.” Berezowsky v. Ojeda, 765 F.3d 456, 468 (5th Cir.
2014). The Court finds that the parents mutually agreed in October 2013 to move to Mexico either
permanently or at least for an indefinite duration, and that they made “a joint decision to raise the
child in the new country.” Id. at 471. The Court finds Petitioner’s testimony that they planned to
move there permanently (or at least indefinitely) credible and supported by the objective facts.
Petitioner was from Nuevo Laredo and her family was there. The couple often visited
Mexico and vacationed there before the move, and they discussed living in Mexico together. Before
the move, the family lived in an apartment in New Braunfels, which they abandoned when they
moved to Nuevo Laredo. They took their belongings with them from the apartment and from
storage, and they brought their dog. They also voluntarily repossessed their car. They leased a nice
home in Nuevo Laredo, which they furnished, and sent pictures of the home to Respondent’s
mother. They remained in that home from October 2013 (when A.G. was 11 months old) to
February 2016 (when A.G. was 3 years 2 months old), when they moved to another home in Mexico
and signed a one-year lease. All of these objective facts indicate an intent to abandon Texas as their
habitual residence and to establish a new family residence in Mexico. Further, the objective
evidence does not contradict Petitioner’s testimony.
There is contrary testimony from Respondent, who testified that they intended to stay only
until he finished his education, when presumably the family would move back to Texas or
somewhere in the United States. Although he did not specify a length of time for him to finish his
education, it appears that, at the time of the move, this was contemplated to be a minimum of two
years for Respondent to finish his bachelor’s degree. Respondent argues that the fact that he wanted
to get a commercial pilot license and to “earn dollars” indicate an intent to move back to the United
States when he finished his education. However, Petitioner testified that they discussed Respondent
getting his pilot license in Mexico, and that Respondent also had many different ideas about
pursuing opportunities in international business. Respondent could pursue these opportunities in
either Texas or Mexico, or both simultaneously, and there is no indication that his doing so would
require a change in the family’s living situation, given Nuevo Laredo’s proximity to Laredo, Texas.
And, as noted, even if Respondent intended to obtain employment in the United States, Petitioner
testified it might have been Laredo but not some place like Houston, and there was no specific
testimony that if Respondent obtained employment in Laredo, Texas, the family would move back
across the border.
Respondent also testified that he maintained a “permanent address” at his mother’s in San
Marcos. Using this address apparently made it easier for Respondent to receive his VA benefits.
But neither Petitioner nor A.G. had ever resided at that address prior to Respondent’s removal of
A.G. in November 2016. The fact that Respondent unilaterally maintained ties with his mother’s
address in San Marcos does not establish that either parent at any time intended that address to be
A.G.’s future residence, nor does it show that they had a specific plan to move A.G. or the family
back to Texas at the completion of Respondent’s education.
Respondent also maintained his U.S. cell phone number and bank accounts, but those facts
are not very persuasive given the close proximity of Laredo and Nuevo Laredo and the fact that
Respondent was attending school in Laredo. Keeping U.S. bank accounts would facilitate receipt
of Respondent’s Kirby vacuum residual income and his student loans, as well as funds from his
mother. In addition, cell phone numbers are highly portable and having a U.S. cell phone number
would also facilitate Respondent’s educational and international business pursuits.
maintenance of these ties was more a matter of convenience and logistics than evidence of intent
to maintain the child’s habitual residence in the United States.
There is also evidence that the couple purchased land in New Braunfels in early 2012 and
that Respondent was constructing a house there. However, Respondent never finished building the
house (there was no testimony concerning when he began or ceased building). Moreover, the
couple later mutually agreed to sell that property and bought property in Mexico.
Respondent’s testimony that the family planned to return to Texas or the United States3 upon
Respondent’s Answer generally contends that A.G.’s habitual residence “rests in the United States”
and his trial brief argues that his “habitual residence rested in Texas.” Notably, Respondent must argue that
A.G.’s residence is the entire state of Texas because A.G. has no more specific geographic area that could
be considered his habitual residence. The only place he ever lived in Texas was New Braunfels, but it is
undisputed that the family left their apartment there and took all their belongings to Mexico, and that they
sold the land in New Braunfels. Respondent testified that he maintained a “permanent residence” at his
mother’s in San Marcos, but it is undisputed that A.G. never lived there prior to Respondent’s removal of
A.G. from his home in Mexico. Thus, there is no specific place in Texas that could be considered A.G.’s
“home” or residence from October 2013 to November 2016. This bolsters the conclusion that A.G.’s habitual
residence was in Mexico, where his actual home was.
completion of his education is further contradicted by the fact that the family moved to a second
home in Nuevo Laredo and signed a new one-year lease in February 2016 and by Petitioner’s
registering her business in Mexico in 2015.
Further, the Court finds Respondent’s own handwritten notes on his Hague research to be
highly persuasive that he shared Petitioner’s desire and intent to remain in Mexico and that the
parties mutually agreed to do so. He wrote that the Nuevo Laredo house “is our house” and, more
importantly, “we had agreed to stay in Mexico if possible from an employment perspective but
I knew that Letty would not want to return. I didn’t either except for the divorce idea.” Ex13 (emphasis added). This is highly persuasive evidence that the couple had agreed for the family
to stay in Mexico if possible rather than return to the United States upon completion of
Respondent’s education, and thus had agreed to abandon Texas (and the United States) as the
family’s habitual residence and to raise the child in Mexico. The Court finds that the parents had
this intent in October 2013. In the alternative, the Court finds that even if the parents moved to
Nuevo Laredo in October 2013 with the intent to remain only until Respondent finished his
education, they had mutually agreed at least by 2015 to remain in Mexico if possible – by that time
Petitioner had started her business and they had sold the Canyon Lake property and purchased
property in Mexico. See Cartes v. Phillips, 865 F.3d 277, 283 (5th Cir. 2017) (“parents’ shared
intent about their child’s habitual residence does not —and need not—always coincide with the
child’s initial change in location”). The handwritten notes are also persuasive evidence that
Respondent’s views unilaterally changed in 2016 once divorce was on the horizon.
Thus, the Court finds that the couple agreed to abandon Texas as the family’s habitual
residence and move to Mexico and make that the family’s habitual residence, and that A.G. had
acclimatized there and acquired a new habitual residence, as the parents intended. Under such
circumstances, courts have routinely held that one parent’s unilateral change of heart is insufficient,
and the child’s country of habitual residence is where the parents had jointly agreed to raise the
child— here, that country is Mexico.4
Although the Court concludes that its resolution of the facts compels a return order, it must
address Respondent’s contention that the facts of this case are more like the second Mozes category,
where the child’s initial translocation from an established habitual residence was intended to be of
a specific, delimited period—the time it took for Respondent to finish his education at Texas A&M
International. Respondent contends that the dispositive issue is whether the move to Nuevo Laredo
was intended to be temporary or permanent, and if temporary, then the move did not amount to a
change in habitual residence. Respondent argues as follows:
Larbie teaches us that when a child’s “initial move from an established habitual
residence was clearly for a specific, limited duration,” as was the case here, “most
courts will find no change in habitual residence.” 690 F.3d at 311; citing, Whiting
v. Krassner, 391 F.3d 540, 549 (3d Cir. 2004).
It is true that Larbie so states. Larbie, 690 F.3d at 311.5 In support of this statement, Larbie cites
Mozes and Whiting v. Krassner, 391 F.3d 540, 549 (3d Cir. 2004).
This case is like the Quebec Court of Appeal case, Y.D.,  R.J.Q. at 2516, cited by the court
in Mozes: Both parents had moved to California with their children and lived with them there continuously
for three years, leaving behind no possessions in Canada. When the marriage deteriorated, one parent
claimed that the stay had been intended to be temporary. The Ninth Circuit noted that there was little room
for doubt that the children had become acclimatized in California, and that the same facts also support a
finding that the couple had manifested a shared intent to abandon the family’s prior habitual residence. The
Mozes court in fact characterized that as an “easy case.” Mozes, 239 F.3d at 1080.
And Mozes and the cases cited therein and discussed above all predate Larbie and several other
more recent Fifth Circuit cases in which the Court established and refined the shared parental intent standard.
E.g., Berezowsky v. Ojeda, 765 F.3d 456 (5th Cir. 2014); Delgado v. Osuna, 837 F.3d 571 (5th Cir. 2016);
Cartes v. Phillips, 865 F.3d 277 (5th Cir. 2017).
The cases cited by Mozes in support of this statement are discussed above, and involved
facts—such as a 23-day vacation, a one-month vacation, a six-week vacation, and a 10-month
sabbatical—starkly different from the situation in this case.6 Moreover, the Mozes footnote
concludes, “Some periods, on the other hand, though sharply delimited, may be too long to expect
children to live abroad without acquiring habitual residence. See, e.g., Toren v. Toren, 26 F. Supp.
2d 240, 242 (D. Mass. 1998) (parents had written agreement under which children were to live and
study in the United States for four years, after which they were to return to Israel).” The Mozes
court elsewhere stated, “If you’ve lived continuously in the same place for several years on end, for
example, we would be hard-pressed to conclude that you had not abandoned any prior habitual
residence.” Mozes, 239 F.3d at 1075.
Thus, Mozes indicates that its “category two” cases are properly limited to shorter time
periods, typically less than a year, whereas Respondent’s position is that the time period was
dependent on his finishing his education, which was somewhat open-ended and appeared to be
intended to be a minimum of two years at the time they moved to Mexico (and in fact turned out
to be more than three years). In addition, even if the initial move was intended to be for two or
three years while Respondent finished his education, the Court has found that the parents mutually
agreed by 2015 to remain in Mexico if possible. Accordingly, Mozes does not support a conclusion
that A.G.’s habitual residence remained in the United States.
In addition, as noted, the Larbie court cited Whiting v. Krassner, 391 F.3d 540 (3d Cir.
2004), with the parenthetical “holding that a change in habitual residence had occurred because
Importantly, there was no evidence or finding of an intent to abandon the previous habitual
the parents had a written agreement that the child should reside in Canada, not New York, at the
time the petition was filed.” (Emphasis added). In Whiting, it was undisputed that the parents had
agreed for the child to live in Canada for a specific, limited duration of two years— this agreement
was embodied in a written agreement and “specifically stated that [the mother] and [the child]
would reside in Wallaceburg, Ontario, Canada, and [the child] would return to the United States no
later than October 19, 2003, depending upon certain conditions.” Whiting, 391 F.3d at 549. Thus,
there was “a shared intent by [the child’s] parents that she live in Canada for a period of two years”
and the Third Circuit found this shared intent to “fulfill the requirement set out . . . in Feder that
[the mother and child’s] move to Canada was accompanied by a degree of settled purpose.” Id.
The court stated that “Feder requires only a degree of settled purpose to accompany the move, even
if such purpose is only for a limited time.” Id. (emphasis added). Thus, whether the move was
intended to be temporary or permanent was not the dispositive factor.
The Whiting court expressly rejected the father’s argument that Canada could not be the
child’s place of habitual residence because there was never an intent to abandon New York as her
habitual residence. In doing so, the court found “an intent to abandon New York for a definite and
extended period in the life of an infant.” Id. at 550. It continued,
For the fact that [mother and child] were to return to the United States, subject to
certain conditions, does not in any way diminish the parties’ settled intention that
the two were to remain in Canada for at least two years. Furthermore, the fact that
the agreed-upon stay was of a limited duration in no way hinders the finding of a
change in habitual residence. Rather, as we stated in Feder, the parties’ settled
purpose in moving may be for a limited period of time. Logic does not prevent us
from finding that the shared intent of parents’ to move their eighteen-month old
daughter to Canada for two years could result in the abandonment of the daughter’s
prior place of habitual residence. Put more succinctly, in our view, the intent to
abandon, need not be forever; rather intent to abandon a former place of residency
of a one year old child for at least two years certainly can effectuate an abandonment
of that former habitual residence.
Whiting, 391 F.3d at 550. The Third Circuit retreated from its prior focus on “where [the child] has
been physically present for an amount of time sufficient for acclimatization” to focusing on “the
shared intent of the parents in determining the residence of their children.” Id. The Court found
that “[f]ocusing on the settled purpose to establish a habitual residence from the parents’
perspective in the case of a young child not only provides us with a more workable framework in
this context, but also furthers another objective of The Hague Convention the deterrence of child
abduction.” Id. at 551. The Court found it was “clear that Canada was [the child’]s place of
habitual residence immediately before she was taken by her father. For the shared intent of her
parents, as clearly evidenced in the Agreement, was that she would remain in Canada for at least
two years. It is clear that when [the father] removed [the child] from Canada and took her to the
United States, his acts were disruptive of an agreed-upon intention.” Id. at 551.
Even under Respondent’s version of the parental intent as being that they mutually agreed
that they would live in Mexico as a family only until he finished his education and then return to
the United States, the reasoning of Whiting would appear to compel a conclusion that such intent
was sufficient to change A.G.’s habitual residence to Mexico during that period of time and that
Respondent’s removal of A.G. from Mexico during that time period contravened the parents’ settled
However, such a conclusion is complicated by Headifen v. Harker, 549 F. App’x 300 (5th
Cir. 2013), in which the Fifth Circuit appears to focus the inquiry on whether the move was
intended to be temporary or permanent. In that case, the child was born in Austin and adopted by
Headifen, a New Zealand citizen, and Harker, a citizen of South Africa and the United States.
When the child was one, the family moved to New Zealand and lived together there for almost three
years, when the parents separated. The mother claimed that the move was intended to be temporary,
motivated in large part by the father’s wish to be near his aging mother, and was expected to last
no more than 12 to 18 months, with the intent to move back to Austin afterwards to raise the child
in America. Due to financial constraints and marital strains, the family ended up staying longer,
though the mother testified that the father still agreed to ultimately return the child to Austin by the
end of the summer. The mother testified that the father then unilaterally changed his mind,
prompting the mother to unilaterally return to Austin with the child in secret, “surreptitiously
spiriting the child out of the country, and pilfering shared bank accounts while doing so,” after the
child had lived there for three and a half years. 1:13-CV-00340-SS, at 11 (W.D. Tex. June 7, 2013).
Despite acknowledging that this is “exactly the sort of behavior the Hague Convention seeks
to prevent,” the court found that the father had failed to establish New Zealand as the child’s
habitual residence. The court noted that the mother testified that the plan was always to return to
Austin, and although the father testified the stay was intended to be of unlimited duration with no
definite plan to return to Austin, he admitted on cross-examination that he had agreed to return to
the United States. Id. at 11-12. The court found the mother to be more credible. Id. at 12. That
both parents had agreed to return to Austin (both at the time of departure and later) was supported
by emails and witness testimony. In addition, the court noted that the parents had enrolled the child
in school in Austin and indicated an intent to return, the family leased their home in Austin instead
of selling it (for only 18 months even though the renters wanted 24 because the family had intended
to return after 18 months), both parents maintained numerous ties with the United States (including
bank accounts, voting, and filing tax returns), and the father maintained his web-based business,
which he characterized as “an Austin company.” Based on all the evidence, the court found that
the parents never had a shared intention to make New Zealand the child’s habitual residence, but
intended to maintain Austin as the habitual residence. The court also found that the child was not
integrated into the New Zealand setting or acclimated there.
On appeal, the Fifth Circuit affirmed in an unpublished opinion. Headifen v. Harker, 549
F. App’x 300 (5th Cir. 2013). The Court took “the opportunity to observe again that interpretive
variability presently exists among circuit courts trying to apply the Convention” because of the lack
of a definition of habitual residence. Id. The Court noted that if the removal was not from the
child’s habitual residence, then the Convention provides no relief even when a parent has
unilaterally absconded with the child, and that the district court had found that “the adoptive mother
absconded to Texas as the residence both parents had intended to return to after their temporary
residence in New Zealand.” Id. The court stated, “The fact-intensive discernment by the district
court of this shared parental intent to return will generally be determinative, under Larbie, of a
young child’s habitual residence, hence will foreclose treaty relief against what otherwise may be
a unilateral absconding with the child.” Id. at 301. In a footnote, the court noted,
Our reference to parents’ intentions has value because it fixes a child’s habitual
residence for purposes of the Convention in the country where parents, prior to
disunion, share a common purpose to reside permanently. For circumstances like
those in Larbie, this primacy given to expressed intent about a permanent residence
is compelling. Larbie, 690 F.3d at 298-99; see also Mozes v. Mozes, 239 F.3d 1067
(9th Cir. 2001). As we highlighted in Larbie, the mother acquiesced and consented
to Texas-court authority over the parents’ divorce and custody proceedings, and
moved temporarily to the United Kingdom only while the father was deployed by
the United States Air Force to Afghanistan. Larbie, 690 F.3d at 299. In the present
case, however, the parents moved their family to New Zealand for several years,
living together but later separating. In both cases, the child’s overseas residence was
intended to be temporary, not indefinite. That is the decisive point, more than that
a change of habitual residence can be established only if parents intend to “abandon”
or “supplant” their originating country altogether. See Mozes, 239 F.3d at 1075.
Headifen, 549 F. App’x at 301 n.1. This focus on whether the family’s stay was intended to be
temporary as “the decisive point” seems to be a retreat from Larbie’s and other cases’ focus on
whether the parents intended to abandon the prior habitual residence and is directly contrary to the
Third Circuit’s approach in Whiting v. Krassner, which found that parents could abandon the prior
residence with an intent to establish a new country of habitual residence for a temporary period of
The Mozes court noted a habitual residence determination may yield strikingly different
results depending on the observer’s time frame. Mozes, 239 F.3d at 1074 (the court also noted that
Lord Scarman reasoned that for habitual residence to accrue, there must be a settled purpose, but
“that is not to say that the propositus intends to stay where he is indefinitely; indeed his purpose,
while settled, may be for a limited period”). Some courts have disavowed a focus on future intent.
The Fifth Circuit has not clearly settled the issue of whether a complete, mutually agreed change
in the family’s residence, though intended to be temporary, would abandon the prior residence if
the parents maintained an intent to return at some point. The Fifth Circuit has made clear that the
first step in acquiring a new habitual residence is forming a settled intention to abandon the one left
behind. Larbie, 690 F.3d at 310-11. One must then ask, however: if one is intending to abandon
the prior residence temporarily with an intent to return after a period of time, is one abandoning it?
If the family lives in Texas and abandons it for Mexico, making Mexico the family home for two
The Mozes opinion also notes that “[b]eing habitually resident in a place must mean that you are,
in some sense, ‘settled’ there – but it need not mean that’s where you plan to leave your bones.” Mozes, 239
F.3d at 1074. The Fifth Circuit cited this discussion with approval in Berezowsky v. Ojeda, 765 F.3d 456,
467 (5th Cir. 2014).
years, why should the result be different if the family intends to then move to England versus back
to Texas? If this Court agreed with Respondent that the move was always intended to be limited
to the number of years in which he finished his education, this case would fall into a gray area, and
the Court would consider staying any return order pending appeal.
However, the Court does not agree with Respondent’s version of the facts, and thus this case
does not fall into that gray area. In this case, a preponderance of the evidence indicates that the
family abandoned Texas and intended to and did make A.G.’s home in Mexico indefinitely or
permanently. Headifen is factually distinguishable. The original move was intended to have a finite
duration of no more than 18 months and though the family ended up staying longer, they continued
to agree to return the child to the United States, where they had kept their home and enrolled the
child in school. In this case, rather than finding an intent to move for a maximum amount of time,
the Court has found that the initial move was intended to be permanent, or alternatively for a
minimum of two years. The Court has further found that, at least by 2015, the parents had mutually
agreed to stay in Mexico if possible, and there was no agreement to return to the United States at
any specific time. The undisputed evidence is that the family abandoned the only “home” A.G. had
had in Texas and there is no indication that anyone viewed him as having his habitual home in
Texas from which he was temporarily absent while living in Nuevo Laredo. Rather, the evidence
shows that the “two parents reached an agreement to raise [A.G.] in Mexico” permanently or
indefinitely. Berezowsky, 765 F.3d at 471.
Because A.G.’s home in November 2016 was Mexico, and both parents intended it to be
Mexico at that time, the Convention dictates that Mexico was his country of habitual residence and
A.G. must be returned there. Madrigal v. Tellez, 848 F.3d 669, 673 (5th Cir. 2017) (the Convention
works to “restore the pre-abduction status quo and to deter parents from crossing borders in search
of a more sympathetic court”).
The Court ORDERS that the minor child A.G. be returned forthwith to the custody of
Petitioner Leticia Velarde. As discussed at the evidentiary hearing, the Court ORDERS that
Petitioner Velarde be allowed to retrieve A.G. from San Marcos as soon as she is able to do so, and
Respondent shall cooperate fully in the return of the child.
The Clerk is directed to issue Judgment in accordance with this Order.
It is so ORDERED.
SIGNED this 13th day of October, 2017.
UNITED STATES DISTRICT JUDGE
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