Jimenez Blancarte v. Ponce Santamaria

          DAVID R. GRAND MAG. JUDGE

          OPINION AND ORDER GRANTING PETITIONER'S COMPLAINT FOR IMMEDIATE RETURN OF CHILDREN PER HAGUE CONVENTION [1]

          JUDITH E. LEVY UNITED STATES DISTRICT JUDGE

         This is 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 Mexico.

         I. Background

         Prior 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.)

         After 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. 18.)

         After a 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.

         II. Legal Standard

         “The 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).

         Under 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 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.

         Hague 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.

         III. Analysis

         Respondent does not contest any element of Petitioner's prima facie case. Petitioner has met his burden.

         A. Prima Facie Case

         Petitioner 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.

         1. Habitual residence

         For the 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).

         Prior 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.

         2. Wrongful Removal

         Article 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).

         Here, 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 ...