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In Ibarra v Quintanilla Garcia, 476 F.Supp.2d
630 (S. D. Texas, 2007) Plaintiff, Robert Garza Ibarra, brought this
action against defendant, C. Guadalupe Yadira Quintanilla Garcia,
pursuant to the Hague Convention. Plaintiff and defendant were citizens
of Mexico. They were married in 1999 in Mexico. Their son, Roberto Garza
Quintanilla, was born the following year. In March of 2004 plaintiff and
defendant were divorced by mutual consent in Mexico. The minor child
continued to reside with the defendant in Monterrey until September of
2004 when the defendant took him to the United States. The child now
resided with defendant and her new husband in Houston.
The evidence was undisputed that Monterrey,
Mexico, was the habitual residence of the minor child. Both parties
argued that the rights to custody of the minor child were established by
their Mexican divorce decree. In the divorce decree the parties agreed
to be bound by certain clauses, three of which are material to this
action. The First clause provided that "both [parties] will continue
executing their parental authority over [the child], who will be under
[defendant's] custody [during and after the divorce proceeding]." The
Second clause provided that the child will reside with the defendant at
1310 Xochimilco Street in Monterrey, Nuevo Leon, Mexico; that the
defendant will provide plaintiff with written notice of any change of
address; and that "any future residence of [defendant and the child]
shall be located within the metropolitan area of Monterrey, N.L." The
Third clause afforded plaintiff visitation rights with the child.
The court found that the Mexican divorce decree
did not provide plaintiff with a right of custody. The plaintiff's
principal argument in support of a right of custody was based on his
interpretation of his right of "la patria potestad" under Mexican law.
Plaintiff explained that article 414 of the Civil Code of Nuevo Leon
states that "[t]he rights and obligations of the family ('la patria
potestad') is exercised by both the father and the mother." Article 417
states that when the parents have become separated "both parents will
exercise the same rights and obligations of the family (la patria
potestad), but it shall be resolved by mutual agreement pertaining to
the exercise of custody." Article 415 provides that "[the parent] who
exercises possession of the child has the obligation to respect, obtain
and permit coexistence with [the parent] whom does not possess the right
of possession but has the patria potestad." Plaintiff argued that "[t]
he patria potestad in Mexico, in and of itself, without any judicial
modification of its rights thereof, is sufficient to confer 'rights of
custody' within the meaning of ... article 5 of the Hague
Convention...." The court rejected this argument and found that the
parties' divorce decree controlled this issue. Although the decree
recognized the parties' rights of patria potestad, it awarded defendant
custody of the child and only awarded plaintiff rights to visit the
child. Plaintiff, who was a Mexican attorney, testified at trial that
"the patria potestad is the rights that the parents assume for the child
because he is a minor. And the right of custody that I had with the
minor, I left that to the mother." To the extent that Mexican law of
patria potestad afforded plaintiff any rights of custody of the child,
plaintiff relinquished such rights in the agreed divorce decree. When
plaintiff has possession of the child pursuant to the visitation rights
awarded him in the divorce decree he may exercise his remaining rights
of patria potestad over the child. The evidence at trial also showed
that defendant, not plaintiff, exercised custody over the minor child,
while plaintiff only exercised the visitation rights afforded him by the
decree.
Because the plaintiff did not have the right of
custody over the minor child, either jointly or alone, he has failed to
satisfy the principal element of his return claim under the Hague
Convention.
The court rejected the Plaintiff’s argument
that "[t]he geographical restriction found in the Divorce Decree affords
plaintiff ... the equivalent of the ne exeat right...." It found that
the divorce decree afforded no such right to plaintiff, it merely
imposed an obligation on defendant not to remove the child from
Monterrey.
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