Garcia v. Pinelo

Decision Date16 August 2015
Docket NumberNo. 14 C 09644,14 C 09644
Citation122 F.Supp.3d 765
Parties Raul Salazar Garcia, Petitioner, v. Emely Galvan Pinelo, Respondent.
CourtU.S. District Court — Northern District of Illinois

Phillip Aaron Brigham, Law Office of Phillip Brigham, LLC, Chicago, IL, for Petitioner.

Soledad O'Donnell, Joseph M. Callaghan, Marc Richard Kadish, Mayer Brown LLP, Sean Michael Hamann, Lake Toback, Chicago, IL, for Respondent.

MEMORANDUM OPINION AND ORDER

Honorable Edmond E. Chang, United States District Judge

Petitioner Raul Salazar Garcia, a resident of Mexico, filed this petition against Respondent Emely Galvan Pinelo, a resident of Chicago, for return of the parties' minor son, D.S., to Mexico.1 R. 30, Am. Petition. The parents, who were never married, agreed to allow D.S. to attend school in Chicago for one school year (though they disagree as to the scope of that agreement, as detailed later). But after that year, the parents disagreed as to whether D.S. would remain in Chicago or return to Mexico. In July 2014, Galvan refused to allow D.S. to travel back to Mexico with Salazar. Salazar then filed this petition for wrongful retention under the Hague Convention on Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89, and its implementing legislation, the International Child Abduction Remedies Act (ICARA), 22 U.S.C. § 9001 et seq .2

Salazar has moved for summary judgment on his petition. R. 54, Mot. Summ. J. For the reasons discussed below, Petitioner's motion is granted in part, denied in part, and reserved in part. An evidentiary hearing—basically, a bench trial—is needed on one narrow factual issue, described more fully below. As discussed when setting the briefing schedule on this motion, the hearing will be held on Friday, August 21, 2015 at 10:15 a.m. R. 53, July 6, 2015 Minute Entry. There is also one open legal issue that requires a translation of the custody order from Nuevo Leon, Mexico. See R. 69, Aug. 13, 2015 Minute Entry. The Court will decide that issue in its final opinion on the merits of the petition after the bench trial.3

I. Background

In deciding summary judgment, the Court views the evidence in the light most favorable to the non-movant, Galvan. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Salazar and Galvan are the parents of D.S., who was born in Monterrey, Nuevo Leon, Mexico, in October 2002. R. 55, Pet.'s SOF ¶ 3.4 Salazar and Galvan were never married. R. 49, Salazar Dep. at 19:3–4. In 2006, a court in Monterrey, Nuevo Leon entered a custody order concerning D.S. Pet.'s SOF ¶ 7; R. 30–1, Pet.'s Exh. B, Nuevo Leon Order (Spanish-language version). That order gave Galvan physical custody of D.S. and provided Salazar with weekly visitation. Salazar Dep. at 19:13–20:10. Aside from a few instances every year when Salazar was traveling for work, he visited D.S. in accordance with the custody order. Pet.'s SOF ¶ 8; see also Salazar Dep. at 24:1–7 ("Q. Was there ever a Wednesday night or a Sunday on which travel for work prevented you from seeing [D.S.]? A. Well, it actually happened only maybe once or twice a year."). For most of his childhood, D.S. lived in Monterrey with his mother. Pet.'s SOF ¶ 4.

In late 2012, Galvan asked Salazar to help her get a passport and visa for D.S. to travel to the United States. R. 50, Galvan Dep. at 13:13–18:1; Salazar Dep. 32:3–21. At the time, Galvan wanted to go to Texas to visit relatives and to take D.S. to Disney World or Disneyland. Galvan Dep. at 20:9–16. She told Salazar about her travel plans. Id. ; Salazar Dep. at 32:3–14; Pet.'s SOF ¶¶ 10–12. At some point after the parties secured D.S.'s travel documents, Galvan decided that she wanted to move to the United States with D.S. Galvan Dep. at 20:21–21:14. On July 30, 2013, Galvan and D.S. met with Salazar in a Monterrey Starbucks to discuss the move.5 Id. at 21:24–23:7; Salazar Dep. at 35:3–9; Pet.'s SOF ¶ 14. At this meeting, Salazar and Galvan agreed that D.S. would live with his mother in Chicago for one school year. Pet.'s SOF ¶¶ 5, 15; R. 65, Resp.'s Resp. Pet.'s SOF ¶ 15. But the parties now dispute the scope of the agreement, specifically on the issue of what would happen after the school year was over. Pet.'s SOF ¶¶ 5, 15; Resp.'s Resp. Pet.'s SOF ¶ 15. Salazar believes that the parties agreed to let D.S. himself decide where D.S. wanted to live after the school year was up. Salazar Dep. at 35:14–36:7, 37:5–9. D.S. testified that his parents agreed to let him decide where to live at the end of the school year. R. 52, First In–Camera Hrg. Tr. at 5:9–7:21. In contrast to Salazar's and D.S.'s version, Galvan argues that they did not agree to simply leave it up to D.S. to decide: specifically, Galvan believes that they agreed that D.S. would live in Chicago for the school year and then, at the end of the year, they would discuss whether D.S. would stay in Chicago. Galvan Dep. at 26:23–27:9 ("Q. And if [D.S.] wanted to go back, what was going to happen? A. We were going to talk about it. Q. And if [D.S.] wanted to stay here, what was going to happen? A. We would talk about it."); Resp.'s Resp. Pet.'s SOF ¶ 15.

On August 15, 2013, Galvan and D.S. moved to Chicago, and D.S. enrolled in school here. Resp.'s Resp. Pet.'s SOF ¶ 5. To keep in touch with his father, D.S. set up a Skype account. Galvan Dep. at 36:6–14. Salazar and D.S. would often communicate through Skype and Facebook. Id. at 36:12–19, 45:2–10; Salazar Dep. at 39:18–23, 42:17–43:1, 47:4–13, 52:10–17. And for Christmas 2013, D.S. returned to Mexico for more than one week to spend the holiday with his father. Galvan Dep. at 35:16–36:5. During D.S.'s conversations with his father over the course of the year, D.S. expressed that he wanted to return to Mexico. Salazar Dep. at 39:8–23, 41:15–43:1; First In–Camera Hrg. Tr. at 10:24–13:11. At the same time, D.S. was telling his mother that he wanted to stay in Chicago. First In–Camera Hrg. Tr. at 13:12–14:1; Salazar Dep. at 41:15–23.

At the end of the school year (in around July 2014), Salazar came to Chicago to see D.S. Pet.'s SOF ¶ 16. In light of the content of the conversations with his son throughout the school year, Salazar was prepared to take D.S. back to Mexico with him and had a plane ticket for D.S. Id. Neither Salazar nor D.S. had told Galvan of their plan to return to Mexico; she believed that Salazar was just in Chicago to visit D.S. Galvan Dep. at 36:20–37:9; Salazar Dep. at 41:15–23; First In–Camera Hrg. Tr. at 13:12–14:1. Salazar and D.S. spent several days together sightseeing in Chicago. Salazar Dep. at 38:11–39:2. On July 21, 2014, Salazar, Galvan, and D.S. met in another coffee shop (yet again, a Starbucks) to discuss where D.S. was going to live. Pet.'s SOF ¶ 17. It was at that time that D.S. told his mother that he wanted to return to Mexico. Id. ¶ 18. Perhaps because D.S. had been telling her that he wanted to stay in Chicago, Galvan did not believe that D.S. truly wanted to return to Mexico. Galvan Dep. at 41:16–42:11. She thought D.S.'s father had influenced the child's decision. Id. The parents' accounts of what happened next differ, but they agree that it ended with D.S. leaving the coffee shop with Salazar, but then the Chicago police eventually instructed Salazar to return D.S. to Galvan's home. Galvan Dep. at 48:16–21, 51:23–52:23; Salazar Dep. at 44:1–46:12.

After this meeting, Salazar returned to Mexico without D.S. He immediately submitted his petition for return of the child to the Mexican Central Authority. Am. Petition ¶ 23. The petition was transmitted to the United States Department of State, and this petition was filed on December 2, 2014. R. 1, Petition. A guardian ad litem was appointed to represent the interests of D.S.6 R. 25, Feb. 18, 2015 Minute Entry. Initially, D.S. did not want to express a preference as to where he would live. See R. 65–7, Guardian Report at 1–2. In late April 2015,7 however, D.S. changed his mind: he told his guardian that he wanted to stay in the United States. Id. at 2–3.

After D.S. decided that he wanted to express a preference, the Court conducted an in-camera hearing with D.S.8 See generally R. 52, First In–Camera Hrg. Tr. At that hearing, D.S. told the Court that he wanted to stay in Chicago because it had better schools and more opportunities than Monterrey, it was safer than Mexico, and he did not want his mom to have to pay his dad's court costs and fees.Id. at 23:3–25:10. D.S. wanted to finish eighth grade in the United States and then, if he did not get into a good high school, possibly return to Mexico. Id. at 27:9–20. Although he said that he would miss his mother, baby sister (Galvan's child with her husband, so D.S.'s half-sister), and friends if he had to return to Mexico, D.S. said that he did not object to going back. Id. at 30:18–32:17.

During the course of summary-judgment briefing, Galvan's counsel asked the Court to hold a second in-camera hearing with the child. R. 58, Resp.'s Emergency Mot. The second hearing was prompted by immigration-law advice: Galvan's attorney had secured an immigration lawyer for Galvan and D.S., and the immigration lawyer had given Galvan information about her immigration status that counsel believed would change D.S.'s mind (and his testimony). Id. at 2–3. The Court ordered that the immigration lawyer should meet with D.S. and his guardian ad litem to communicate the new information to D.S. R. 60, Aug. 5, 2015 Minute Entry.

Over Salazar's objection, the Court decided to hold a second in-camera hearing with the child. Id. In that hearing, D.S. told the Court that he now objected to returning to Mexico. R. 62, Second In–Camera Hrg. Tr. at 12:16–25. D.S. gave several reasons for his objection, R. 65–11, D.S. Pros and Cons List, but he told the Court that, if his mother could freely travel between the United States and Mexico, he would no longer object, Second In Camera Hrg. Tr. at 16:7–17:5 ...

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