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In Lopez v. Alcala, 547 F.Supp.2d 1255 (M. D.
Fla. 2008) the father's petition for his children's return to Mexico was
filed more than one year after their alleged removal to the United
States by their mother. The children were doing well in their new
environment. The district court held that they were not so settled as to
require denial of the father's petition. The children had moved around
quite a bit since they came to the U.S., their relationships with their
father, older sister, and paternal relatives had been affected, and
their residence in the U.S. was not stable because they were illegal
immigrants subject to deportation at any time. Lopez was a Mexican
citizen and the ex-husband of Respondent Guadalupe Rios Alcala
("Alcala"). The couple had three children together: Getsemani, 13 years
old; Sinai, 9 years old; and Suri, 7 years old. In Mexico, Alcala and
Lopez lived with their children in a house that is attached to Lopez'
parents' residence. Throughout the marriage Lopez maintained steady
employment working for the government. The couple was still married when
the Petition was filed, but their divorce was since finalized in Mexico.
In approximately July of 2003, Alcala moved out of the marital residence
in Mexico and began renting an apartment nearby. For the next two years,
the couple shared custody of all three children, with the paternal
grandparents taking on significant care giving responsibility. On
October 29, 2005, Alcala took Sinai and Suri to the United States, via
Texas. Getsemani remained in Mexico. In January of 2006, Alcala moved to
Florida with the children and they lived in Altamonte Springs since that
time. Alcala was working at a dry cleaners, and both children were
enrolled in public school. The children became conversant in English and
were apparently doing well in school. Although Alcala and the children
were illegal aliens, Respondent filed petitions seeking asylum in the
United States. In response to Lopez's petition, Alcala argued, among
other things, that the children should not be returned to Mexico because
their father was an alcoholic and has been physically abusive to Alcala
and the children in the past. Lopez denied most of these allegations,
but did admit to some "pushing back and forth" between him and Alcala in
2003. In the interest of resolving this matter without traumatizing the
children by forcing them to testify, the Court ordered that the children
be interviewed in a non-adversarial setting by a court-appointed child
psychologist. Pursuant to that Order, Dr. Deborah Day interviewed both
Sinai and Suri, provided the Court with written reports of her findings,
and testified at the hearing held on February 28, 2008. In their
interviews with Dr. Day, both of the children stated that their father
had hit them with his hand and a belt. They both also recalled him
hitting and kicking their mother. Both children stated that they had
seen Lopez drunk. While their statements in the interviews were mostly
consistent, Dr. Day noted some indications that Suri may have been
coached by her mother. However, Suri's fear that if she is returned to
her father she would lose her mother and be exposed to physical
discipline appeared to be genuine. Sinai indicated a desire to spend
time with his father, but also indicated that he did not trust him and
did not want to return to Mexico. Sinai also indicated a desire to
protect his mother from Lopez.
The Court pointed out that it was not disputed
that the children's habitual state of residence was Mexico, that they
were both under 16 years of age, and that their removal breached Lopez'
custodial rights. Alcala argued that Lopez was not exercising his
custodial rights at the time she took the children from Mexico. At the
time of the alleged abduction, the physical custody of the children was
being shared between Lopez and Alcala. Respondent's argument that Lopez
only picked the children up to take them to his parents house was
without merit. Lopez and his parents lived in attached residences, and
the fact that he sought their assistance in caring for his children did
not negate his exercise of his custody rights. Therefore, the Court held
that Petitioner had shown that the children were wrongfully removed
under the Hague Convention.
The District Court noted that Alcala also
argued that the children should not be returned because these
proceedings were commenced more than one year after the date of the
wrongful removal and the children were now settled in their new
environment. It pointed out that Courts have considered the following
factors in determining whether a child is settled in a new environment:
(1) the age of the child; (2) the stability of the child's new
residence; (3) whether the child attends school or daycare consistently;
(4) whether the child attends church regularly; (5) the stability of the
mother's employment; and (6) whether the child has friends and relatives
in the new area. In re Koc, 181 F.Supp.2d at 152; Gitter, 2003 WL
22775375, at *5; Anderson v. Acree, 250 F.Supp.2d 876, 881 (S.D.Ohio
2002). However, a more comfortable material existence is not dispositive
of the child being settled. In fact, Lops directs courts to look beyond
a comfortable material existence and to consider the child's living
environment, the involvement of the parents, active measures taken to
conceal the child's whereabouts, and the possibility of prosecution for
conduct concealing the child. The Court held that, additionally, that
the uncertain immigration status of a parent and her child is a factor
suggesting that a child is not settled. In re Koc, 181 F.Supp.2d at 154.
In re Cabrera, 323 F.Supp.2d 1303, 1314 (S.D.Fla.2004).
The evidence showed that the children were
doing well in their new environment. They both adjusted to their school,
made friends, and learned English. However, since they came to the
United States they moved around quite a bit. The children did not move
to central Florida until January, 2006 and had been at their current
residence for less than a year. It was also established that the
children established a close relationship with their maternal
grandmother and an uncle. However, they did so at the cost of their
relationship with their father, their sister, Getsemani, as well as
their paternal grandparents and aunts. The Court found that Alcala
intentionally sought to prevent the children from having any
relationship with their father, and that their residence in this country
was not stable because neither Alcala nor the children had legal alien
status and, as such, were subject to deportation at anytime. Thus, the
Court found that Respondent failed to establish this factor by a
preponderance of the evidence.
Finally, Alcala argued that there was a grave
risk that the children's return would expose them to physical or
psychological harm or otherwise place them in an intolerable situation.
The Court noted that this exception requires the alleged physical or
psychological harm to be "a great deal more than minimal." Whallon, 230
F.3d at 459, quoting Walsh v. Walsh, 221 F.3d 204, 218 (1st Cir.2000).
Only severe potential harm to the child will trigger this Article 13b
exception. Nunez-Escudero, 58 F.3d at 377, quoting the Supreme Court of
Canada, Thomson v. Thomson, 119 D.L.R. (4th) 253, 286 (Can.1994). The
Court noted that the United States Department of State had stated that
an "intolerable situation" under Article 13b was not intended to
encompass situations such as return to a home where money is in short
supply, or where educational or other opportunities are more limited
than in the new country. It gave as an example of "intolerable
situation" where the custodial parent sexually abuses a child. 51 Fed.
Reg. at 10510. The Court indicated that even if it took all of the
children's testimony as true, it did not rise to the level of an
intolerable situation. Sinai indicated that his father hit him twice,
and that he never saw his father hit Suri. Suri told Dr. Day that her
father had hit her once or twice as well. This evidence only indicated
that Lopez has used corporal punishment to discipline the children in
the past. The alleged abuse was not so severe that it rose to the level
of an intolerable situation. The Petition was granted.
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