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In A.A.M. v. J.L.R.C.,--- F.Supp.2d ----, 2012 WL
75049 (E.D.N.Y.) Petitioner ("mother"), who was a Mexican resident and
citizen, and the mother of a five-year-old Mexican-born daughter,
E.M.A.R., brought a petition seeking the return of her child from the
respondent ("father"), a citizen of Mexico and a resident of the State
of New York. The Court granted the mother an order compelling the father
to return their child, who was kept by him in New York, to Mexico.
The mother and father married in Puebla, a small
city in southern Mexico, in March 2006. Both had extended families
there. The child was born of in September 2006. She lived with both
parents in Puebla for six months. Her father then left the conjugal
residence, entered the United States illegally, and traveled to Queens,
New York. He was employed full-time in this country and earned
substantial wages. After he left Mexico for the United States, the
mother had complete physical control of the child. For approximately
three and a half years, the child was well cared for in Mexico by her
mother. Both received regular voluntary support from the father. The
mother and child communicated with the father regularly by telephone.
In the spring of 2010, the parents agreed that
the mother and child would come to New York, where the three would live
together. Arrangements the parents agreed upon by telephone were as
follows. The mother and her uncle, A.S. , accompanied by the child, were
to travel by air from Puebla to Nogales, Mexico, a city located close to
the border between Arizona and Mexico. Many persons seeking to enter the
United States illegally do so near Nogales. The mother was sent money by
the father so she could arrange for a person or persons to smuggle the
child across the border. Immediately thereafter, the mother and her
uncle were to cross illegally into the United States, and, accompanied
by the child, were to travel to New York to join the father. There, the
parents were to share joint custody of the child in their new marital
abode. Using money supplied by the father, the mother arranged for two
women to take
the child across the border while she and her
uncle stayed in Nogales with smugglers. These individuals had also been
retained by the mother to help her and her uncle sneak into the United
States through the desert. Despite their repeated attempts to enter the
United States, the two adults were blocked by American border guards.
Each time, they were returned to Mexico. In the meantime, the child had
arrived in New York and was being cared for by her father. After some
time in a Mexican safe house supplied by the smugglers, the mother
procured false identification for herself and her uncle. They used these
papers to cross into the United States. Apprehended, they were punished
criminally for using false identification. Each served 75 days in prison
before being expelled to Mexico.
It was by then apparent that the plan for the
mother to enter the United States and travel to New York had been, and
would continue to be, frustrated. Another illegal attempt to enter would
have meant risking a long prison term. The father began cohabiting with
another woman. She had just given birth to their son. The father, his
paramour, and their son lived together in New York, along with the
child. It became apparent that respondent would send no more money to
Mexico to support petitioner. And he insisted that he would keep sole
custody of the child in New York. Desperate, the mother contacted the
Mexican authorities for help in obtaining the child. It was by then
clear that she could never immigrate to the United States, and that the
father would never voluntarily send the child back to Mexico.
In October 2010, the mother filed a request for
legal assistance with the Mexican government. In November 2010, Mexico
formally applied to the government of the United States for the child's
return. Less than two weeks after the State Department contacted the
father, he filed a petition in New York Family Court seeking sole
physical and legal custody of the child. The district court enjoined the
parties from taking further action regarding that petition until the
present dispute under the Convention was resolved.
The Court observed that in determining an issue
of foreign law, the court "may consider any relevant material or source,
including testimony, whether or not submitted by a party or admissible
under the Federal Rules of Evidence."Fed.R.Civ.P. 44.1. It determined
that Mexican law governed in this case both as to the scope of the
mother's permanent custody rights and the agreement between the mother
and the father. The Convention itself dictates this result with respect
to the substantive content of the mother's custody rights, since, the
child was habitually resident in Mexico. See Hague Convention, art. 3(a)
(requiring a court to determine whether a removal or retention was "in
breach of rights of custody...under the law of the State in which the
child was habitually resident immediately before the removal or
retention ". Mexico's federal law governs with respect to the scope of
petitioner's custody rights for Convention purposes, and supersedes any
Mexican state's law to the contrary. Mexican federal law similarly
governed the agreement between the petitioner and the respondent for
purposes of this case.
The Court further observed that Mexico's law of
custody is known as patria potestas; translated into English, it is
defined as the law of "parental authority." See, e.g., Patricia Begne,
Parental Authority and Child Custody in Mexico, 39 Fam. L.Q. 527, 527-28
(2005) . Most of the [state] codes in the Mexican Republic[, including
that of Puebla], do not define parental authority. A number of features
of the law of parental authority appear to be shared by the various
Mexican states. Authority is exercised jointly by both parents. Parental
authority ends when a child reaches the age of 18; before that time, it
may be temporarily suspended because of a parent's personal problems,
such as the abuse of alcohol or drugs, removed by a judge for various
reasons, or it may be validly waived by a parent in limited
circumstances. "The first right that arises from parental authority is
the one of shelter." Parents exercising their authority "always keep ...
the right to shelter their descendants."Put slightly differently, "[
c]ustody and care of their minor children is the first duty of parents.
Custody refers to being with and care for the child. Mexican courts
refer to guarda y custodia, the two terms being understood as
synonymous." Under Mexican law, "[t]he exercise of parental authority
... gives rise to a duty of custody and care. It is noteworthy that
Mexican courts use the terms cuidado y custodia (care and custody),
implying that custody and care go hand in hand." "These principles have
been ratified by the Mexican Supreme Court, which has ruled that, 'One
of the prerogatives of parental authority is the custody, care, and
attention of minors. Custody cannot be understood separately from the
physical supervision of the children, because that connection is a means
to protect them, raise them, physically and spiritually, and provide for
them.' "
Mexican contract law rules are set forth in the
Mexican Civil and Commercial Codes." The Court found that the child was
being wrongfully retained by her father in New York. Her habitual place
of residence was Mexico, where her mother lawfully resided in the
marital residence. The father was holding the child in New York, where
he lives illegally, subject to deportation, in violation of the mother's
rights of custody. There was no defense to her proven cause of action
for the immediate return of the child to Mexico. The Court pointed out
that in determining whether a removal or retention was wrongful under
the Hague Convention, a court must determine as an initial matter the
country in which the child was "habitually resident immediately before
the removal or retention." Hague Convention, art. 3(a). Only after doing
so can the court determine whether the removal or retention was "in
breach of rights of custody" under the law of that country. The Court of
Appeals for the Second Circuit has suggested an approach for courts to
utilize in determining the location of a child's habitual residence
pursuant to the Hague Convention: First, the court should inquire into
the shared intent of those entitled to fix the child's residence
(usually the parents) at the latest time that their intent was shared.
In making this determination the court should look, as always in
determining intent, at actions as well as
declarations. Normally the shared intent of the parents should control
the habitual residence of the child. Second, the court should inquire
whether the evidence unequivocally points to the conclusion that the
child has acclimatized to the new location and thus has acquired a new
habitual residence, notwithstanding any conflict with the parents'
latest shared intent. Gitter v. Gitter, 396 F.3d 124, 134 (2d Cir.2005).
However, it noted that the fact-specific nature of cases under the
Convention may indicate other, more direct ways to the conclusion
regarding habitual residence. Notably, the present case illustrated why
the standard set forth in Gitter for determining habitual
residence-though useful in cases in which the child is moved back and
forth between different countries, as was the case in Gitter itself-is
insufficient to deal with every determination of habitual residence.
Gitter is of particular utility when, for example, a child is born in
country A, moves with her parents to country B, and then returns with
one of the parents to country A. In such a case, it is appropriate to
consider both the intent of the parents and the attachment the child
develops to country B. But it is inappropriate to apply this approach in
a case in which a child is born in country A and is removed by one
parent to country B, or a case in which a child is born in country A and
is improperly retained by a parent in country B. The parents
cannot meaningfully be said to have shared an intent regarding the
change in the child's residence to B, after removal from her country of
initial residence, A, if the child is removed to or retained in B,
contrary to the wishes of the parent remaining in country A. The crux of
the problem in such cases is that the parents disagree regarding the
country where the child should live in the future-and the child's
pre-removal residence is ultimately crucial in making a custody
determination. The pre-removal residence is particularly relevant in a
case like the present one, where the mother was lawfully residing in
Mexico, the site of the permanent lawful marital residence, while the
child and father temporarily resided illegally in this country and were
subject to deportation at any time.
The Court held that the Gitter standard was not
appropriately applied in an A to B case such as the present one for
another reason: in such a case, the child's having become acclimated to
her new residence in country B seems irrelevant to the determination of
whether she was habitually resident in country A immediately before the
removal or retention. See Hague Convention, art. 3(a). It is necessary
in a Gitter-type case to consider whether a child born in country A,
taken jointly by his parents to country B, and then removed by one of
the parents back to country A was habitually resident in country B; the
basic theory underlying the inquiry in that case is that the child's
habitual residence might have shifted, given the passage of time and the
accretion of life experiences in country B. Removal by one parent back
to country A might then be wrongful within the meaning of the Hague
Convention. But in the second set of cases-into which the instant case
fits-the child's having become acclimatized to country B seems to have
no bearing on whether the child was habitually resident in country A
immediately before the wrongful removal or retention. This is an issue
of critical import under the Convention.
The Court of Appeals for the Second Circuit
made it clear in Gitter that, "at its core, habitual residence is a
'description of a factual state of affairs.' In this case, that state of
affairs was obvious. Until she was removed into the United States and
illegally retained here, the child had lived her entire life in Mexico
with the consent of both parents in their marital abode. Her parents
shared an intent for the child to move to the United States only if she
could join a household including her mother and father. That intent was
conditioned on all three of the family members successfully entering the
United States. But their shared intent did not change the fact that,
before her entry into the United States, and her retention here, the
child was born in Mexico and had never resided outside that country. The
child was habitually resident in Mexico before her removal and unlawful
retention by the father in the United States.
It was undisputed that Mexican custody law
conferred upon the petitioner the right to keep physical custody of her
child in her home-with or without the presence of her
voluntarily-departed husband-absent the suspension, loss, or forfeiture
of her parental authority. Petitioner's right to shelter and care for
her child is a "right[ ] of custody" under the Convention. The treaty
states that " '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." Hague Convention, art. 5(a);
see also Abbott v. Abbott, 130 S.Ct. 1983, 1990-91 (2010). The Court
found that this right would have been exercised by the mother in Puebla
"but for ... the retention" by the father in New York and Petitioner was
exercising her custody rights before the child illegally entered the
United States and intended to do so again when the child is returned.
Because the child was being retained in New York without her mother's
consent, in violation of petitioner's right of custody under Mexican
law, respondent's retention of the child in the United States was
wrongful under the Convention, unless the parties' agreement compelled a
different conclusion. However, the agreement between the parties did not
require a different conclusion with respect to the wrongful nature of
the retention in New York by the father. The agreement for the mother,
child, and father to create a new marital abode in New York was
conditional on all of the family members entering the United States.
Even assuming that that "contract" for shared custody in New York after
the planned illegal entry was enforceable, it was frustrated and
impossible of effectuation, becoming null and void. No consent for
retention in the United States without the mother's permission was
given. Because the agreement between the mother and the father-that the
entire family would reside in the United States in a new marital abode,
with the parents sharing custody of their daughter there-was conditional
upon the entry of all members of the family into the United States, the
petitioner could not be said to have consented to the retention of her
child in the United States, when she was prevented by American law from
entering this country. The retention of the child was therefore
"wrongful" within the meaning of the Hague Convention.
Respondent argued that petitioner "consented to
... the removal [and] retention." He contended that the mother consented
to the child's being removed to, and retained in, the United States;
that there is no evidence that her consent was conditional; and that, in
any event, her putative consent to the removal bars her from objecting
to the retention. The statute required him to prove this affirmative
defense by a preponderance of the evidence. Respondent's arguments were
rejected. Petitioner's conditional consent to the child's removal to the
United States was not operative in the present dispute. It was dependent
on the family's establishment as a unit in New York. Petitioner's
consent to the removal, given conditionally, did not operate to divest
her of her right to object to the retention. Respondent's claim that
petitioner was estopped from objecting to the retention of the child by
her earlier consent ignored the conditional nature of her agreement. The
respondent has not, as a matter of fact and law, met his burden in
attempting to prove consent by the petitioner.
The child was ordered returned to Mexico
forthwith. The judgment was stayed for 10 days to allow an application
to the Court of Appeals for the Second Circuit for a further stay.
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