Alanis v. Reyes

• Decision Date: 30 January 2017
• Docket Number: CIVIL ACTION NO. 3:16–cv–00268–GHD–RP
• Parties: Lourdes Guadalupe Lored ALANIS, Plaintiff v. Jose Carmen Badillo REYES, Defendant
• Court: U.S. District Court — Northern District of Mississippi

230 F.Supp.3d 535

Lourdes Guadalupe Lored ALANIS, Plaintiff

v.Jose Carmen Badillo REYES, Defendant

CIVIL ACTION NO. 3:16–cv–00268–GHD–RP

United States District Court, N.D. Mississippi, Oxford Division.

Signed January 30, 2017

Arthur Martin Edwards, IV, Phelps Dunbar, LLP, Jackson, MS, for Plaintiff.

MEMORANDUM OPINION

Glen H. Davidson, SENIOR U.S. DISTRICT JUDGE

Presently before the Court is a verified petition [1] for return of minor child to Petitioner Lourdes Guadalupe Lored Alanis ("Petitioner") and for immediate issuance of a show cause order to Respondent Jose Carmen Badillo Reyes ("Respondent") under the Convention on the Civil Aspects of International Child Abduction (the "Hague Convention") and the International Child Abduction Remedies Act ("ICARA"), 42 U.S.C. § 11603. Upon due consideration, the Court finds that the petition should be granted.

I. Procedural Background

On September 26, 2016, Petitioner filed an application pursuant to the Hague Convention with the Mexican authorities, claiming that Respondent had wrongfully retained her minor child, DFB, from the child's habitual residence of Mexico. Pet. [1] ¶ 10. On November 21, 2016, Petitioner filed in this Court her verified petition [1] for return of her minor daughter under the Hague Convention. On December 12, 2016, Respondent was served with process by the DeSoto County Sheriff's Department. See Summons Returned Executed [7].

On January 5, 2017, Petitioner filed an expedited motion [8] for preliminary relief and for an expedited hearing. In her motion, Petitioner requested that this Court (1) prohibit Respondent from removing the child from the jurisdiction of this Court and (2) set a hearing on the petition, commanding Respondent to appear before the Court with the child to show cause why she was allegedly unlawfully abducted and retained in the United States in contravention of Mexican law and the Hague Convention. The Court construed Petitioner's expedited motion as a motion for a temporary restraining order and preliminary injunction hearing pursuant to Rule 65(b) of the Federal Rules of Civil Procedure, and on January 9, 2017, entered an Order [9] and memorandum opinion [10] granting the relief requested in the expedited motion. Specifically, the Court ordered service of process on Respondent and set a show cause/preliminary injunction hearing for January 26, 2017, requiring the presence of all parties. See Fed. R. Civ. P. 65(b)(3). The Court further entered a temporary restraining order prohibiting Respondent and anyone else from removing DFB from the State of Mississippi or otherwise changing the child's present location until the date of the hearing. See Fed. R. Civ. P. 65. On January 12, 2017, Petitioner effectuated service of process on Respondent through the DeSoto County Sheriff's Department of Petitioner's expedited motion for relief [8], the Court's Order [9] and memorandum opinion [10] granting same, and the Court's notice of hearing [11] on the expedited motion.

On January 26, 2017, the Court conducted a hearing on the motion; Petitioner, Respondent, and DFB were present. Upon due consideration, the Court ruled from the bench that the petition should be granted and that DFB should be returned to Petitioner in Mexico. The reasoning for that decision is as follows.

II. Analysis and Discussion

The verified petition in the case sub judice was filed pursuant to the Hague Convention, a treaty ratified by the United States in 1988, as well as ICARA, the federal statute through which Congress implemented the Hague Convention in 1988. See Lozano v. Montoya Alvarez , ––– U.S. ––––, 134 S.Ct. 1224, 1229, 188 L.Ed.2d 200 (2014) (citing 102 Stat. 437, 42 U.S.C. §§ 11601 –11610 ). "The Hague Convention was adopted to address the problem of international child abductions during domestic disputes." Berezowsky v. Ojeda , 765 F.3d 456, 465 (5th Cir. 2014) (citing Lozano , 134 S.Ct. at 1228 ). The objectives of the Hague Convention are: (1) "to secure the prompt return of children wrongfully removed to or retained in any Contracting State,"¹ and (2) "to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in other Contracting States." Hague Convention, art. 1; Delgado v. Osuna , 837 F.3d 571, 577 (5th Cir. 2016).

Petitions filed under the Hague Convention must be handled in an expeditious manner. Chafin v. Chafin , 568 U.S. 165, 133 S.Ct. 1017, 1027, 185 L.Ed.2d 1 (2013) ("[C]ourts can and should take steps to decide these cases as expeditiously as possible, for the sake of the children who find themselves in such an unfortunate situation.... Expedition will help minimize the extent to which uncertainty adds to the challenges confronting both parents and child."); Hernandez v. Garcia Pena , 820 F.3d 782, 790 n.7 (5th Cir. 2016) ("Prompt resolution of international child abduction cases is essential to safeguarding the best interests of the child and upholding the core spirit of the [Hague] Convention.").

"When a parent abducts a child and flees to another country, the Hague Convention ... generally requires that country to return the child immediately if the other parent requests return within one year." Lozano , 134 S.Ct. at 1228. "Th[e return] remedy, in effect, lays venue for the ultimate custody determination in the child's country of habitual residence rather than the country to which the child is abducted." Id. "Return is not required if the parent seeking it was not exercising custody rights at the time of the ... retention or had consented to ... retention, if there is a ‘grave risk’ that return will result in harm, if the child is mature and objects to return, or if return would conflict with fundamental principles of freedom and human rights in the state from which return is requested." Chafin , 133 S.Ct. at 1021.

"When evaluating a Hague Convention claim, we do not assess the merits of the underlying custody dispute. Rather, our inquiry is limited to determining whether or not the child has been wrongfully [retained] from their country of ‘habitual residence.’ " Delgado , 837 F.3d at 577 (citing Berezowsky , 765 F.3d at 465 ).

The Fifth Circuit has stated the burden of proof as follows:

For the [P]etitioner to prevail, [s]he must establish three elements by a preponderance of the evidence: (1) that the [R]espondent ... retained [DFB] somewhere other than [DFB's] habitual residence; (2) that the ... retention violated the [P]etitioner's rights of custody under the habitual-residence nation's laws; and (3) that at the time of ... retention, [P]etitioner was exercising those rights or would have exercised those rights but for the ... retention.

See id. (internal citation omitted); see also Lozano , 134 S.Ct. at 1231.

In the case sub judice , Petitioner argues that the minor child, DFB, was wrongfully retained in the United States by Respondent, away from the child's habitual residence in Mexico. Based on the foregoing principles, to establish a prima facie case of wrongful retention, Petitioner must demonstrate that (1) Mexico was DFB's habitual residence; (2) DFB was retained in the United States in breach of Petitioner's legal rights of custody under Mexican law; and (3) Petitioner was exercising her rights of custody at the time of the retention. See Hague Convention, arts. 3, 13.

1. Habitual Residence

First, Petitioner must demonstrate by a preponderance of the evidence that Respondent wrongfully retained DFB outside of DFB's "habitual residence." See Delgado , 837 F.3d at 577–78. "The [Hague] Convention does not define ‘habitual residence.’ " Id. at 578. Therefore, the Court must conduct a "fact-intensive determination that necessary varies with the circumstances of each case." See id.

Under Fifth Circuit law, the Court must "begin[ ] with the parents' shared intent or settled purpose regarding their child's residence," not "ignor [ing] the child's experience," but "giv[ing] greater weight to the parents' subjective intentions relative to the child's age." See id. (quoting Larbie v. Larbie , 690 F.3d 295, 310 (5th Cir. 2012) (quotation marks omitted)). "Much of the existing case law discussing a child's habitual residence involves situations where the parents were still together at the time of the child's birth, made plans for the child's future, and only later did the family unit begin to dissolve. In these situations, the court's task is usually to try to determine when the parents last had a shared plan regarding their child's future, and what that plan entailed."Id. at 578 n.4 (quoting Berezowsky , 765 F.3d at 468 (internal quotation marks and citations omitted)). "A shared parental intent requires that the parents actually share or jointly develop the intention. In other words, the parents must reach some sort of meeting of the minds regarding their child's habitual residence, so that they are making the decision together." Berezowsky , 765 F.3d at 468 (emphasis in original).

Both Petitioner and Respondent are citizens of Mexico. Pet. [1] ¶ 4. Hearing testimony from both Petitioner and Respondent unequivocally demonstrates that the two began a relationship 2005 in Mexico, that Respondent later moved to the United States, that Petitioner later moved to the United States, and that both of them resumed their relationship. See Hr'g Tr. Both Petitioner and Respondent also testified that they were in the United States illegally. DFB was born on September 9, 2007 in Southaven, Mississippi. See id. DFB is thus a citizen of the United States. Pet. [1] ¶ 4; Pet'r's App. [1–3] at 4. Petitioner and Respondent remained unmarried. See Hr'g Tr. Both Petitioner and Respondent were acknowledged as DFB's biological parents on her birth certificate. Birth Cert. [1–3] at 36. Respondent has since questioned whether he was the father of DFB. See Hr'g Tr. Respondent testified at the hearing that he ordered a paternity test kit on the internet and, according to the instructions, sent to the testing company...