In Matter of Lieberman v Tabachnik 625 F.Supp.2d 1109 (D. Colorado 2009) Petitioner Andres Lieberman and Respondent Jessica Tabachnik, both Mexican citizens, were married on March 21, 1993. The had three children: L.L.T. who was born on September 2, 1994; D.L.T. who was born on March 11, 1996 and; E.L.T. who was born on March 4, 1998. Petitioner, Respondent and the three children resided in Mexico until July of 2007. The couple was divorced by a divorce decree dated, January 26, 2004. After Petitioner opposed Respondent removing the minor children, on June 23, 2004, a Mexican court entered an order that restricted the Respondent from removing the children from Mexico without judicial authorization. On May 24, 2007, the United Mexican States, Superior Court of Justice of the Federal District, Judge 19th for Family Matters issued an Order stating that Respondent "shall be required thus within the term of THREE DAYS [to surrender] the passports, her passport and those of her minor children as well as the visa issued by the United States of America. Despite the Court's order, the children were removed from Mexico by the Respondent in early July 2007. The minor children and the Respondent now resided in Englewood, Colorado. The petition for return was filed in the district court on November 19, 2007. At a December 14, 2007 hearing, Petitioner appeared by telephone and his counsel appeared in person. Respondent appeared pro se along with the three minor children. The Court appointed a counsel and a Guardian Ad Litem, whose duties included, but were not limited to, the following: (1) to investigate all aspects of the social background of each of the minor children by talking to the Petitioner, Respondent, the minor children, reviewing court records from legal proceedings in Mexico and engaging in any further fact inquiry or investigation that the Guardian Ad Litem deems appropriate; (2) to investigate Respondent's allegations of abuse, mistreatment of each of the minor children for the purpose of determining if Respondent's allegations are accurate, truthful and verifiable; (3) to provide facts, evidence and recommendations, as to each child, concerning whether returning said child to Mexico would expose him or her to a grave risk of physical or emotional harm or otherwise subject the child to an intolerable situation; and (4) to investigate the wishes of the children and their respective maturity levels (to the extent that these issues relate to exceptions within ICARA) and make appropriate recommendations on this point. In his report, the Guardian Ad Litem recommended that the Court find that the children were wrongfully removed from their country of habitual residence and that the Court find that Petitioner had rights of custody as defined by Mexican Law and the Treaty. The Guardian Ad Litem could not find any complaint against the Petitioner that would result in a grave risk of harm should one or all of the children be returned to Mexico. Nor could the children's therapist in Denver confirm that returning the children to Mexico would expose them to great risk of harm or any potential harm. The Guardian Ad Litem expressed a concern about whether the children's wishes to return to Mexico were grounded in independence without influence by either parent He stated that the children had been exposed to a "great deal of information and statements about their Father that has caused them to turn against him." The Guardian Ad Litem recommended that the children be ordered to return to their home country of Mexico. The court found that it must give some deference to the Guardian Ad Litem's Report and Recommendations. The parties agreed that the children's habitual place of residence was Mexico and that the children were removed by their mother from said residence. Respondent argued that the Petitioner, under the terms of the divorce decree, had "rights of access" and not "rights of custody" as defined by the Hague Convention. The court found that the SECOND paragraph of the divorce decree gave him ‘parenting time". In response to Respondent's argument that the Petitioner only had rights of access under the Convention, Attorney Katz testified that patria potestas is the most sacred concept in Mexican family law. It is the binding relationship between a parent and their minor child until they become emancipated. Attorney Katz contended that what this means per se is that patria potestas gives the parents of the minor children the right to make every important decision in their lives and the obligation to provide for them in every way. Attorney Katz further testified that "guard and custody" in the divorce decree and in Mexican law refers only to living arrangements. The court found that Petitioner's joint right to solve and supervise in a continuous manner the education and cultural development of the children combined with his joint right to agree with or veto any educational modification endows him with consequential decision-making authority over the children's day-to-day care. Thus, it found that the divorce decree afforded the Petitioner with rights of custody as defined by the Convention. The court also noted that A ne exeat clause is defined as an "equitable writ restraining a person from leaving, or removing a child or property from, the jurisdiction." BLACK'S LAW DICTIONARY (8th ed.2004). The Tenth Circuit has not yet expressly decided the issue, but the majority of federal courts considering the issue have determined that a ne exeat order or statutory ne exeat provision do not accord rights of custody to a parent under the Hague Convention. Here, the court found that Petitioner's ne exeat right constituted a right of custody within the context of the Hague Convention. [15] Petitioner asserts that the concept of patria potestas affords him rights of custody as defined by the Convention. In Whallon v. Lynn, 230 F.3d 450 (1st Cir.2000), the court explained the "Mexico code law" concept of patria potestas. Patria potestas or parental authority, "is understood to mean the relationship of rights and obligations that are held reciprocally, on the one hand, by the father and mother or in some cases the grandparents and, on the other hand, the minor children who are not emancipated." (quoting Codigo Civil del Estado de Baja California Sur ('Civil Code', art. 474)). Further, the concept of patria potestas is defined broadly, Paternal authority is exercised over the person and the property of the children subject to it. The purpose of its exercise is the comprehensive physical, mental, moral and social protection of the minor child, and it includes the obligation for [the child's] guardianship and education. Id. "The Code then distinguishes patria potestas from 'custody,' which may be decided by agreement or, failing such agreement, by a judge." Id. at 457. The court was persuaded that when the Mexican court allocated custody rights in the divorce decree that Petitioner waived or relinquished his patria potestas rights. The court found that the language of the divorce decree and the June 24, 2004 order indicate the existence of divisible custody rights-of physical custody and patria potestas, which is entirely consistent with the Convention's statement that custody may be held "jointly or alone". See Whallon, 230 F.3d at 457; see also Hague Convention, art. 3. The court found that Petitioner's patria potestas rights were not mere access rights to the minor children. Petitioner's patria potestas rights provide Petitioner with a meaningful, decisionmaking role in the lives and care of the minor children. The court found that Petitioner Exercised His Rights of Custody It noted that a person who had valid custody rights to a child under the law of the country of the child's habitual residence ... cannot fail to 'exercise' those custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child." (Citing Bader v. Kramer, 484 F.3d 666, 671 (4th Cir.2007)(quoting Friedrich, 78 F.3d at 1066). "Further, once it determines the parent exercised custody rights in any manner, the court should stop-completely avoiding the question whether the parent exercised the custody rights well or badly." The aggregation of the facts led the court to the conclusion that the Petitioner did not clearly and unequivocally abandon L.L.T., D.L.T., and E.L.T.but that Petitioner exercised his "rights of custody" as required by Article 3(b) of the Convention. Respondent asserted that returning the children to Mexico will expose them to a grave risk of physical or psychological harm. The Sixth Circuit in Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir.1996), has indicated that the grave risk of harm can only exist in two situations. "First, there is a grave risk of harm when return of the child puts the child in imminent danger prior to the resolution of the custody dispute e.g. returning the child to a zone of war, famine or disease." Second, there is a grave risk of harm in cases where there is "serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable of or unwilling to give the child adequate protection." Respondent testified in support of her defense that the Petitioner would only feed the children rice, beans, and tortillas when they would go to his house for visitation. Further, she alleged that the Respondent would shout and get mad at the children. The Respondent also alleged that she and the children have suffered years of abuse and are currently working with a domestic violence organization because they feel like victims and are constantly afraid of the Petitioner. Respondent also argued that Mexico City is dangerous and Colorado is a much safer place to raise her children. However, there was no evidence that the Petitioner has ever physically or mentally abused the children. In addition, the Guardian Ad Litem found that the Respondent's allegations of abuse could not be substantiated. Thus, the court found that the Respondent failed to establish by clear and convincing evidence that the return of the children to Mexico would expose the minor children to physical or psychological harm or place them in an intolerable situation. The Court also found that the Respondent had not proved by a preponderance of the evidence that the children were of the age and maturity level for their opinions to be taken into account. At the January 30, 2007 hearing, all three of the minor children expressed their opinions regarding a return to Mexico during an ex parte meeting in chambers. After careful consideration of what they told me, the court decided to allow the two oldest children, L.L.T and D.L.T, to testify in court under oath. Because L.L.T and D.L.T. expressed such strong views regarding their relationship with their father, the court believed that it was important for them to testify on the record. L.L.T and D.L.T were questioned by the court, the attorneys, and by the Guardian Ad Litem. This procedure was agreed to by the parties and the Guardian Ad Litem. Both L.L.T. and D.L.T. expressed a strong desire to remain in Colorado with their mother. L.L.T and D.L.T. are normal children who seem to be coping well with an extremely difficult situation. However, like most normal children they are susceptible to suggestion and manipulation. Although both L.L.T. and D.L.T. were incredibly articulate in expressing their concerns and grievances regarding returning to Mexico, the court believed that their mother's opinion of their father had influenced their evaluations of the situation. During their testimony, the words and phrases used to describe the situation with their father mirrored the testimony of the Respondent. Further, upon inquiry into how the girls had come to form their opinions and whether the Respondent had any role in forming their opinions, both girls gave the exact same response. "I know because I lived it." In his report the Guardian Ad Litem expressed concern regarding whether the children's wishes are well grounded in independence and not subject to influence by either parent. Because the court could not be certain whether the opinions expressed by the minor children were their own or were the product of the influence of the Respondent, it found that the Respondent has not proven by a preponderance of the evidence that the minor children are ofthe age and degree of maturity necessary for me to take their opinions into account. Based upon the foregoing the petition was granted. |
