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In March v Levine, 136 F. Supp.2d 831, (M.D.
Tennessee,2000) the father filed a petition against the maternal
grandparents for the return of his children to Mexico pursuant to the
Hague Convention, as implemented in the International Child Abduction
Remedies Act. On cross-motions for summary judgment, the District Court
held that Mexico, not Illinois, was the "habitual residence" of the
children. The grandparents' allegation that the father had killed the
mother was insufficient to establish a grave risk of harm to children.
The father was not precluded by fugitive disentitlement doctrine from
maintaining the action. The children's presence in Mexico for one year
was a long enough period of time to establish their habitual residence
there. In determining the child's "habitual residence" a most important
factor in the analysis is the child's circumstances in the country
alleged to be his habitual residence. There need not be decision to
remain somewhere indefinitely for it to be considered the child's
habitual residence; the degree of settled purpose is to be analyzed not
from the parent's perspective but from the child's perspective. Mexico,
not Illinois, was the "habitual residence" of children, and thus
grandparents' removal of children from Mexico was wrongful under Hague
Convention even if the father was a fugitive from the United States,
where, before their abduction, they had lived with their father and his
wife and her children in Mexico for over one year, attended school
there, the wife applied to adopt the children, and the father moved to
Mexico for employment purposes. Under International Child Abduction
Remedies Act (ICARA), the petitioner must establish by preponderance of
evidence that he was exercising custody rights over his minor children
in the country under that country's law at the time that the children
were removed from the country. Under Mexican law, the natural father of
unemancipated minors was exercising his custody rights, for purposes of
the Hague Convention at the time the children were removed from Mexico
by their maternal grandparents. In evaluating whether a person opposing
the return of a child to the place in which child habitually resided
immediately before his wrongful removal or retention pursuant to Hague
Convention has established that there is grave risk of harm to the
child, the court is not to make a determination of the child's best
interest. The maternal grandparents' allegation that the "father had
killed mother, and thereby deprived children of her love, affection,
attention, devotion and guidance," was insufficient to establish a grave
risk that return of the children to their father in Mexico would expose
them to harm despite outstanding criminal complaints against the father
in Mexico, absent evidence that the father had ever abused the children.
Return of children to father in Mexico would not deprive them or their
maternal grandparents of human rights and international freedoms absent
evidence that Mexican courts were incapable of making a fair custody
determination as between the father and grandparents. The father was not
precluded by the fugitive disentitlement doctrine from maintaining the
action against his children's maternal grandparents for return of his
children to Mexico due to arrest warrants against him arising out of
criminal contempt orders and the grandparents' allegation that the
father had killed the children's mother, where the father was not in
contempt at the time he took the children to Mexico. One contempt order
arose when the father left Illinois during the pendency of grandparent
visitation proceedings, and the other order concerned his alleged
failure to return and repair personal items to the grandparents, and
father had not been indicted in mother's death.
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