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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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