United States District Court, E.D. Michigan, Southern Division
R. GRAND MAG. JUDGE
OPINION AND ORDER GRANTING PETITIONER'S COMPLAINT
FOR IMMEDIATE RETURN OF CHILDREN PER HAGUE CONVENTION
E. LEVY UNITED STATES DISTRICT JUDGE
an international child abduction case brought under the Hague
Convention and its implementing statutes, the International
Child Abduction Remedies Act (ICARA). 42 U.S.C. §§
11601-11611. Petitioner alleges that in January 2019,
Respondent wrongfully removed Petitioner and Respondent's
two daughters, now ages 9 and 10, from Mexico to the United
States. Both the United States and Mexico are signatories to
the Hague Convention. On October 30, 2019, Petitioner filed
this Complaint for Immediate Return of Children Per Hague
Convention. (ECF No. 1.) Because Petitioner has demonstrated
a prima facie case for wrongful removal under the Hague
Convention and Respondent has not successfully pled any
affirmative defense, the Court grants Petitioner's
complaint and orders that the two children be returned to
to January 2019, Petitioner and Respondent lived in Mexico
with their two minor children. (ECF No. 1). Respondent
describes their living situation as fraught with conflict,
anger, and violence. (ECF No. 18, PageID.98-100.) In January
2019, Respondent took the parties' two minor children and
moved to Michigan. (ECF No. 1, PageID.2.)
locating the children in Michigan, Petitioner filed an
initial complaint in this Court on July 12, 2019.
Blancarte v. Santamaria, No. 19-12078 (E.D. Mich.
July 12, 2019). On October 29, 2019, Judge Tarnow dismissed
the case without prejudice for failure to serve Respondent.
Id. (ECF No. 4.) On October 30, 2019, Petitioner
filed a second complaint for the immediate return of the two
children to Mexico pursuant to the Hague Convention and its
implementing statutes. (ECF No. 1.) Petitioner, alleging that
Respondent and the two children were flight risks, requested
emergency injunctive relief. (ECF No. 2.) Finding both a risk
of flight and that such flight would constitute irreparable
injury, the Court entered an ex parte temporary
restraining order, first on November 1, 2019 (ECF No. 5),
and, after repeated failed attempts to locate Respondent or
the children, again on November 4 (ECF No. 6), November 5
(ECF No. 10), and November 6. (ECF No. 11.) The Court granted
Petitioner temporary custody of the children and appointed a
Guardian Ad Litem. (ECF No. 10.) After locating the children
on November 7, 2019, the U.S. Marshals Service and the
Guardian Ad Litem facilitated the transfer of the
children's custody from Respondent to Petitioner. On
November 12, 2019, the parties filed a Stipulation for
Interim Parenting Time (ECF No. 16), which the Court granted
in part. (ECF No. 17.) Respondent also raised three
affirmative defenses to Petitioner's complaint. (ECF No.
hearing on November 13, 2019, the Court converted its
temporary restraining order into a preliminary injunction.
(ECF No. 19.) On November 25, 2019, the Court held an
evidentiary hearing on Respondent's affirmative defenses.
The Court heard testimony from Respondent, Respondent's
adult son Carlos, and Petitioner. On November 26, 2019, the
Court heard testimony from the parties' older daughter.
After the hearing, the Parties agreed to attempt mediation.
Mediation was unsuccessful. (ECF No. 25, PageID.189.) The
Court now rules on the merits of Petitioner's complaint.
Hague Convention is generally intended to restore the
pre-abduction status quo and to deter parents from crossing
borders in search of a more sympathetic court.”
Friedrich v. Friedrich, 78 F.3d 1060, 1064 (6th Cir.
1996). The Hague Convention mandates that this Court only
determine the merits of the abduction claim and not the
merits of any custody dispute. See March v. Levine,
249 F.3d 462, 472 (6th Cir. 2001).
Article 3 of the Hague Convention, removal of a child is
wrongful (and return required) where:
a) It is in breach of the 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 of
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.
Convention on the Civil Aspects of International Child
Abduction, Article 3, Oct. 25, 1980, T.I.A.S. No. 11670, 1343
U.N.T.S. 89 ("Hague Convention"). A prima facie
case of wrongful removal thus has three elements: 1) prior to
removal or wrongful retention, the child was habitually
resident in a foreign country; 2) the removal or retention
was in breach of custody rights under the foreign
country's law; and 3) the petitioner was exercising
custody rights at the time of the removal or wrongful
retention. 42 U.S.C. § 11603(e) provides the petitioner
must successfully prove a prima facie case by the
preponderance of the evidence. Once a petitioner has met
their burden, a court shall order return of the child to
their home country unless a respondent can show one of five
enumerated affirmative defenses.
does not contest any element of Petitioner's prima facie
case. Petitioner has met his burden.
Prima Facie Case
has demonstrated that the children's habitual residence
was Mexico, Respondent's removal of the children
interfered with his custody rights, and he was actively
exercising those rights at the time of removal.
Hague Convention to apply, the abducted child must have been
“habitually resident in a Contracting State immediately
before any breach of custody or access rights.” Hague
Convention, Article 4. The Sixth Circuit defines
“habitual residence” as the “place where a
person customarily lives.” Taglieri v.
Monasky, 907 F.3d 404, 407 (6th Cir. 2017). A district
court may look to the place in which the child has become
“acclimatized.” Id. (citing Ahmed v.
Ahmed, 867 F.3d 682 (6th Cir. 2017)). In Robert v.
Tesson, the Sixth Circuit emphasized that habitual
residence analysis should focus on a child's past
experiences and not the parents' future intentions. 507
F.3d 981 (6th Cir. 2007).
to removal, both daughters had lived their entire lives in
Mexico. (Evidentiary Hearing, Nov. 25, 2019.) They attended
school in Mexico. (Id.) The family lived together in
Mexico. (Id.) There is no evidence that the children
had ties to any other country. Petitioner has demonstrated,
and Respondent concedes, that the children's habitual
residence was Mexico.
3 of the Hague Convention defines wrongful removal as removal
that is in breach of custody rights under the law of the
country in which the child was habitually resident. Rights of
custody are defined in Article 5(a) as “rights relating
to the care of the person of the child and, in particular,
the right to determine the child's place of
residence.” Hague Convention, Article 5(a).
Petitioner has provided the Court with Mexico's Civil
Code for the Federal District relating to parentage and
divorce. (ECF No. 1, PageID.39.) Article 414 provides that
the “patria potestas” (power of a father) over
children is exercised by the parents. (Id. at
PageID.40.) This power continues even if the parents
separate. (Id.) (Article 416). Children have a right
to interact with both parents. (Id.) (Article 416
Bis.) The patria potestas allows a person to determine the
domicile of their children. (Id.) (Articles 411,
421.) Petitioner has provided the children's birth
certificates, which show that he is the lawful father. (ECF
No. 1, PageID.26-29.) Under these laws, Petitioner had
custody rights ...