Garcia v. Ramsis
| Docket Number | CIVIL 4:21-CV-650-SDJ |
| Decision Date | 31 January 2022 |
| Parties | FRANCISCO JAVIER GONZALEZ GARCIA v. MADONNA NASSER ADEEB RAMSIS |
| Court | U.S. District Court — Eastern District of Texas |
Before the Court in this Hague Convention case is Petitioner Francisco Javier Gonzalez Garcia's Verified Complaint and Petition for Return of Child to Spain and Issuance of Show Cause Order, (Dkt. #1), in which Garcia seeks the return of his child, S.J.G., to Spain. On January 14, 2022, the Court held a consolidated show cause hearing and bench trial at which Garcia and Respondent Madonna Nasser Adeeb Ramsis appeared and presented arguments concerning the propriety of S.J.G.'s return to Spain. (Dkt. #10). After considering the parties' arguments, the record, and the relevant law the Court GRANTS Garcia's Petition for Return of Child to Spain and ORDERS S.J.G.'s return to Spain.
Garcia is a citizen of Spain and has a Spanish passport and identity card. (Dkt. #11 at 11, 13). Ramsis is a citizen of Egypt and has an Egyptian passport. (Dkt. #11 at 15). She also has an expired United States B1/B2 visa, which was issued in 2016 and remained valid until July 25, 2021. (Dkt. #11 at 21). Garcia and Ramsis previously were in a relationship but have never been married. They have one daughter, S.J.G., together. S.J.G. was born in 2018 in New York. S.J.G. is a dual citizen of the United States and Spain. She has a Spanish passport and Spanish Social Security number. (Dkt. #11 at 17, 19). Garcia is S.J.G.'s biological father and is listed as S.J.G.'s father on her American and Spanish birth certificates. (Dkt. #11 at 5, 8-9). Less than three weeks after S.J.G. was born, Garcia, Ramsis, and S.J.G. relocated to Egypt as a result of Garcia's employment. At the time, Garcia was employed as the financial director of a Spanish company. (Dkt. #11 at 90). The family lived in Egypt for approximately one year and four months. In May 2019, Garcia's employer transferred him to Spain. As a result, Garcia, Ramsis, and S.J.G. moved to Malaga, Spain, where they lived together for approximately ten months. Garcia and Ramsis did not maintain a residence in Egypt when they moved to Spain.
In March 2020, Garcia traveled from Spain to Mexico because his employer assigned him to a temporary position in the country. According to Garcia, his “intent was to work in Mexico temporarily and remain a resident of Spain.” (Dkt. #1 ¶ 16). Garcia testified that he was scheduled to return to Spain at the end of 2020, and he signed a lease for a residence in Seville on January 1, 2021. (Dkt. #11 at 68). Ramsis and S.J.G. remained in Spain for an indeterminate amount of time after Garcia left. At some point, Ramsis and S.J.G. traveled to Egypt and then flew to Mexico to visit Garcia. After spending three months in Mexico, Ramsis left with S.J.G. Ramsis and S.J.G. were to fly first to New York and then on to Cairo, Egypt, to visit family. But once they landed in New York, Ramsis stayed in the United States with S.J.G., and the two did not board their flight to Egypt. Garcia sent text messages to Ramsis, asking her not to stay in the United States with S.J.G., but Ramsis refused to leave.
(Dkt. #11 at 26-29). Ramsis and S.J.G. currently reside in Plano, Texas, and Ramsis has applied for asylum.
Garcia sought assistance with returning S.J.G. to Spain. In an effort to resolve the matter, the United States Department of State contacted Ramsis in early 2021. (Dkt. #11 at 23-24). Ramsis did not respond. Less than a year after Ramsis took S.J.G. to the United States, Garcia filed his Verified Complaint and Petition for Return of Child to Spain and Issuance of Show Cause Order, (Dkt. #1), in this Court.
The Court held a show cause hearing and bench trial on Garcia's petition. Garcia and Ramsis both testified, and neither called additional witnesses. Garcia, through counsel, questioned Ramsis, and Ramsis questioned Garcia herself.
The Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89 (“Hague Convention”), governs civil proceedings filed in signatory countries for the recovery of abducted children. The United States and Spain are signatories to the Convention. The International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. §§ 9001-11, implements the Hague Convention in American law. Abbott v. Abbott, 560 U.S. 1, 9, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010). The Hague Convention and ICARA empower courts to order the return of children removed or retained in violation of the Hague Convention. See 22 U.S.C. § 9001(b)(4); Abbott, 560 U.S. at 9. However, neither the Hague Convention nor ICARA authorizes courts to determine the merits of the underlying custody dispute. See 22 U.S.C. § 9001(b)(4). Instead, the court's inquiry is limited to determining whether the child has been wrongfully removed from their country of “habitual residence.” See Smith v. Smith, 976 F.3d 558, 561-62 (5th Cir. 2020) (citation omitted). If the child has been wrongfully removed, the court must order the child's return, unless certain exceptions apply. Abbott, 560 U.S. at 9. “It is then up to the courts of the ‘habitual residence' to decide the substantive merits of the underlying custody issue.” Smith, 976 F.3d at 562 (citation omitted).
The removal or retention of a child is wrongful if the petitioner proves by a preponderance of the evidence that: (1) the respondent removed or retained the child somewhere other than the child's habitual residence; (2) the removal or retention was in breach of the petitioner's rights of custody under the laws of the country of habitual residence; and (3) the petitioner was exercising those custody rights at the time of removal or retention or would have exercised those rights but for the removal or retention. Delgado v. Osuna, 837 F.3d 571, 577 (5th Cir. 2016). “A threshold inquiry in a Hague [Convention] action is: what country was the child's habitual residence immediately before the alleged wrongful removal or retention.” Saldivar v. Rodela3 879 F.Supp.2d 610, 618 (W.D. Tex. 2012). Recently, the Supreme Court clarified that “the determination of habitual residence does not turn on the existence of an actual agreement” between the parents. Monasky v. Taglieri, 140 S.Ct. 719, 726, 206 L.Ed.2d 9 (2020). The Court held that “[t]here are no categorical requirements for establishing a child's habitual residence.” Id. at 728. Adopting the Monasky holding, the Fifth Circuit has instructed district courts to determine a child's habitual residence by “examin[ing] the totality of the circumstances.” Smith, 976 F.3d at 561 (citing Monasky, 140 S.Ct. at 730).
Respondents in Hague Convention cases may assert several narrow affirmative defenses. Soto v. Contreras, 880 F.3d 706, 710 (5th Cir. 2018) (citing 22 U.S.C. § 9003(e)(2); Hague Convention, arts. 12, 13, 20). One available affirmative defense is that there is a grave risk that the child's return “would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Id. (quoting Hague Convention, art. 13(b)). The respondent must prove the grave-risk defense by clear and convincing evidence. 22 U.S.C. § 9003(e)(2)(A). To be clear and convincing, evidence must “produce[] in the mind of the trier of fact a firm belief . . . so clear, direct and weighty and convincing as to enable the fact finder to come to a clear conviction, without hesitancy, of the truth of precise facts of the case.” Waste Mgmt. of Wash., Inc. v. Kattler, 776 F.3d 336, 341 (5th Cir. 2015) (quoting Hornbeck Offshore Servs., L.L.C. v. Salazar, 713 F.3d 787, 792 (5th Cir. 2013)). “[F]indings of grave risk are rare.” Soto, 880 F.3d at 710 (alteration in original) (citation omitted).
To establish grave risk, “[t]he alleged harm ‘must be a great deal more than minimal' and ‘greater than would normally be expected on taking a child away from one parent and passing [the child] to another.'” Madrigal v. Tellez, 848 F.3d 669, 676 (5th Cir. 2017) (quoting Walsh v. Walsh, 221 F.3d 204, 218 (1st Cir. 2000)). The principles underlying the Hague Convention require that the grave-risk exception “be narrowly construed; otherwise, a broad interpretation would cause the exception to swallow the rule and transform the Convention into an arena for custody disputes.” Soto, 880 F.3d at 710-11 (quoting Tavarez v. Jarrett, 252 F.Supp.3d 629, 640 (S.D. Tex. 2017)).
Whether allegations of spousal abuse can support a grave-risk finding is less settled. See Gallegos v. Garcia Soto, No. 1:20-CV092-RP, 2020 WL 2086554, at *3 (W.D. Tex. Apr. 30, 2020). The Fifth Circuit has noted that “sustained spousal abuse can, in some instances, create [a grave] risk.” Soto, 880 F.3d at 713. And it has cited with approval decisions by other courts of appeals finding grave risk in cases “involv[ing] substantial violence” and/or “concrete” threats of violence, often in the child's presence. Madrigal, 848 F.3d at 677. But the Fifth Circuit has rejected “a bright-line rule that allegations of spousal abuse create grave risk to a child” because such a rule “would circumvent the Hague Convention's principle that ‘the best interests of the child are well served when decisions regarding custody rights are made in the country of habitual residence.'” Soto, 880 F.3d at 713 (quoting Abbott, 560 U.S. at 20).
The Tenth Circuit's decision in Gil-Leyva v. Leslie 780 Fed.Appx. 580 (10th Cir. 2019), provides additional guidance on the issue of when spousal abuse might pose a grave risk to the child. In Gil-Leyva, the court distinguished between “[e]vidence of a ‘clear and long history of spousal abuse, '” which “may...
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