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In Ortiz v Cantu, 2009 WL
8543610 (S.D.Tex.) on September 8, 2009, Petitioner Armando Alvarez
Ortiz ("Petitioner") filed a Petition for Return of a Child under the
Hague Convention for the return of his seven-year-old daughter, Anerlys
Araly Alvarez Gonzalez, who Petitioner asserted was wrongfully removed
from her habitual residence in Mexico by Petitioner's former wife,
Respondent Araly Anhel Gonzalez Cantu ("Respondent").
The Court found that Respondent and Petitioner were Mexican citizens.
Respondent was Petitioner's former wife, and they were the natural
parents of Anerlys Araly Alvarez Gonzalez. Anerlys was also a Mexican
citizen. Anerlys was born on October 17, 2002. From the time of
Anerlys's birth until mid-September 2008, Anerlys lived in Marin, in the
state of Nuevo Leon, Mexico. Petitioner and Respondent were divorced on
July 1, 2008. The divorce decree that dissolved their marriage provided
that Petitioner had patria potestad rights regarding Anerlys. It also
provided that Anerlys was not to travel outside of Mexico unless there
was a written agreement from both parents to that effect. The Divorce
Decree established the other rights and obligations of Petitioner with
respect to Anerlys: (a) "regarding travel outside the country ... there
must exist a prior written agreement [between both parents];" (b) "all
expenses on account of food shall be borne by Mr. Armando Alvarez Ortiz
...;" (c) "[both parents] shall bear in equal shares all expenses
generated on account of education, including tuition, uniforms, books,
fees and others, agreeing that the education to be received by the child
shall be in public institutions ...;" (d) "[Mr. Alvarez Ortiz] agrees
that he will cover the health care costs of his minor child at the
Mexican Social Security Institute, as a benefit of his employment ...;"
(e) "regarding the clothing needs of their minor daughter, they agree on
sharing equally the purchase of clothes....
In mid-September 2008, Respondent removed Anerlys from her habitual
residence in Mexico and brought her to the United States without
Petitioner's knowledge, consent or acquiescence. At the time of removal,
Petitioner was exercising the rights of custody established by the
Divorce Decree. Respondent brought Anerlys to the United States
illegally. Petitioner filed this action on September 8, 2009, less than
one year after Respondent removed Anerlys from Mexico.. On Friday,
December 4, 2009, Petitioner filed the ex parte Motion for TRO seeking,
among other things, an order prohibiting Respondent from removing the
child from the jurisdiction of the Court pending a final hearing on the
merits, a warrant to take physical custody of the child, and an
expedited hearing. On Monday, December 7, 2009, the Court held an ex
parte hearing on the Motion. At the hearing, Petitioner demonstrated
that a substantial risk existed that if Respondent was notified in
advance of a hearing, she would flee the jurisdiction of this Court
taking Anerlys with her. After the ex parte hearing, the Court ordered
that Anerlys be placed under the temporary care of Petitioner, pending
the preliminary injunction hearing and hearing on the merits. The United
States Marshals Service served the Order on Respondent on December 8,
2009. Respondent was timely informed of the date, time and location of
the preliminary injunction hearing and hearing on the merits. Also on
December 8, 2009, the Marshals transferred the temporary physical
custody of Anerlys to Petitioner pending the hearing on the merits.
Petitioner appeared with his daughter Anerlys at the hearing on the
merits of this case.In pursuing this action, Petitioner incurred a
filing fee of $350.00, as well as $185.00 for the preparation of the
transcript of the TRO hearing. In addition, it was necessary for
Petitioner to retain counsel in this case. The Court observed that a
court must return a wrongfully removed child to her country of habitual
residence if a petitioner demonstrates, by a preponderance of the
evidence, that the child's removal was wrongful within the meaning of
the Hague Convention. 42 U.S.C. 11603(e) (1)(A); Sealed Appellant v.
Sealed Appellee, 394 F.3d 338, 342-43 (5th Cir.2004)"A parent wrongfully
removes a child when he or she removes or retains the child outside the
child's country of habitual residence, and this removal: breaches the
rights of custody accorded to the other parent under the laws of that
country; and, at the time of removal, the non-removing parent was
exercising those custody rights." Sealed Appellant, 394 F.3d at 343. The
Court found that Petitioner met his burden by establishing that: (i)
Anerlys habitually resided in Mexico prior to her removal by Respondent
in September 2008; (ii) Petitioner's rights under the Divorce Decree and
Mexican law constituted custody rights for purposes of the Hague
Convention, and Respondent's removal of Anerlys breached Petitioner's
rights (see, e.g., Whallon v. Lynn, 230 F.3d 450, 459 (1st Cir.2000)
(holding that "the evidence of patria potestas rights under Mexican law
leads [the Court] to conclude that [Petitioner's] rights were 'rights of
custody' under the [ Hague] Convention"); Altamiranda Vale v. Avila, 538
F.3d 581, 587 (7th Cir.2008) ("When the parent who does not receive
physical custody is given the rights and duties of patria potestas, he
has custody rights within the meaning of the Hague Convention.")); (iii)
at the time of removal, Petitioner was exercising his custodial rights;
and (iv) Anerlys was under the age of sixteen. Accordingly, the Court
ordered that Anerlys be returned to Mexico, her country of habitual
residence, under the physical custody of Petitioner.
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