Joya v. Gonzales
| Decision Date | 12 March 2020 |
| Docket Number | CIVIL ACTION NO. 20-236 SECTION M (5) |
| Parties | ORLIS XAVIER ORELLANA JOYA v. NORMA ARELY MUNGUIA GONZALES |
| Court | U.S. District Court — Eastern District of Louisiana |
This case involves a petition brought under the Hague Convention on the Civil Aspects of International Child Abduction (the "Convention"). Petitioner Orlis Xavier Orellana Joya ("Orellana") is the father of a five-year-old boy known as S.O.O.M.1 Orellana petitions this Court to return S.O.O.M. to Honduras, asserting that in May 2019, respondent Norma Arely Munguia Gonzales ("Munguia"), S.O.O.M.'s mother, wrongfully brought S.O.O.M. to the United States, where he remains.2
This matter was tried before the Court, sitting without a jury, on February 27, 2020. Having considered the evidence admitted at trial, counsel's arguments, the parties' post-hearing memoranda,3 the record, and the applicable law, the Court hereby issues its findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure. To the extent that any finding of fact may be construed as a conclusion of law, the Court adopts it as such, and to the extent that any conclusion of law constitutes a finding of fact, the Court adopts it as such.
This Court has subject-matter jurisdiction over this action pursuant to 28 U.S.C. § 1331, as it arises under the Convention and this country's implementing legislation, the International Child Abduction Remedies Act ("ICARA"), 22 U.S.C. §§ 9001, et seq. Venue is proper because S.O.O.M. was located within this district when Orellana filed the petition. 22 U.S.C. § 9003(b) ().
On May 14, 2019, Orellana applied to the Honduran central authority under the Convention, the Instituto Hondureño de la Ninez y la Familia ("IHNFA") (the Honduran Directorate for Children, Youth, and Family), for S.O.O.M.'s return to Honduras from the United States.4 IHNFA transmitted Orellena's application to the United States Department of State ("State Department"), and in June 2019, the State Department located Munguia and S.O.O.M. in New Orleans, Louisiana.5 On June 5, 2019, the State Department notified Munguia of Orellena's application, and she responded that she is not willing to return S.O.O.M. to Honduras voluntarily.6
On January 22, 2020, Orellana filed his petition in this Court seeking S.O.O.M.'s return to Honduras under the Convention and ICARA. The next day, this Court set an in-person status conference to be held before the magistrate judge on January 29, 2020, to determine if Munguia qualified to receive the services of court-appointed counsel, and ordered Munguia to appear at the status conference.7 This Court also ordered that S.O.O.M. remain within the district until an adjudication of the merits of Orellana's petition, set a bench trial for February 10, 2020, and ordered that any opposition to the petition and proposed findings of fact and conclusions of law be filed no later than February 5, 2020.8
Munguia was served with the petition on January 25, 2020,9 but she failed to appear at the January 29, 2020 status conference.10 As a result, the magistrate judge conditionally appointed counsel to represent Munguia, and ordered that the attorney make his best efforts to contact her, explain the proceedings to her, and arrange for her appearance at an appointment-of-counsel hearing on February 4, 2020.11 Because the conditionally-appointed counsel informed the magistrate judge that Munguia refused his services, the magistrate judge cancelled the February 4, 2020 hearing and vacated the conditional appointment.12
On February 4, 2020, this Court continued the February 10, 2020 trial to February 27, 2020, because the respondent's answer was not due until February 18, 2020.13 The Court also re-issued its order that S.O.O.M. not leave the district until an adjudication of the merits of Orellana's petition, and ordered Munguia to appear with S.O.O.M. at the February 27, 2020 trial.14 Further, the Court ordered that any opposition to the petition and proposed findings of fact and conclusions of law be filed no later than February 21, 2020.15
Munguia was served with the aforementioned order on February 4, 2020.16 However, she did not file an answer by the February 18, 2020 deadline or proposed findings of fact and conclusions of law by the February 21, 2020 deadline.17 As a result, on February 20, 2020, the Court granted Orellana's motion for entry of default against Munguia.18
The Court held the trial on the petition on February 27, 2020.19 Orellana appeared via live video feed from Honduras, and his counsel were present in court.20 Munguia and S.O.O.M. appeared in person with an attorney who had not yet enrolled in the case.21 The Court granted the attorney's oral motion to enroll.22 The Court heard testimony from Orellana and Munguia, along with arguments of counsel.23 At the close of the hearing, the Court ordered post-trial memoranda to be filed no later than March 9, 2020, and reiterated that S.O.O.M. was not to leave the district until a determination on the merits was completed.24 On March 9, 2020, the parties filed their respective post-trial memoranda.25
Orellana, a citizen of Honduras, is 24 years old and currently lives with his mother and brother in Comayagua, Honduras.26 He works full-time as a barber and attends night school where he studies systems engineering.27
Munguia is also a citizen of Honduras.28 Orellana and Munguia met at school and became friends.29 They were involved in a romantic relationship together from 2011 to 2017, but were never married.30 Their son, S.O.O.M., was born in Comayagua, Honduras on May 17, 2014.31 Although Munguia testified that she and Orellana sometimes had heated arguments, the relationship has no history of domestic violence, and Orellana has never physically assaulted either Munguia or S.O.O.M.32
After their romantic relationship ended, Orellana and Munguia amicably shared custody of S.O.O.M. pursuant to an oral agreement.33 Neither party ever obtained a formal custody declaration from a Honduran court.34 Orellana picked S.O.O.M. up from school every day, and kept him until Munguia got off of work, at which time she would pick S.O.O.M. up from Orellana at his mother's house.35 S.O.O.M. spent weekends primarily with Munguia, but Orellana had access to S.O.O.M. on the weekends for special occasions.36 Both parents provided financial support for S.O.O.M.'s care.37
On May 6, 2019, Orellena granted Munguia's request to take S.O.O.M. with her to job training in San Pedro, Honduras, over Mother's Day weekend, with the expectation that S.O.O.M. would be returned to Orellana on May 12, 2019.38 Instead of returning S.O.O.M. to Orellana, Munguia took S.O.O.M. to the United States without Orellana's knowledge or consent, leaving a voicemail for Orellena's mother stating that she was moving to the United States with S.O.O.M.39 On May 13, 2019, Orellena contacted the police, who referred him to the IHNFA.40 Thereafter, Orellena filed an application with IHNFA for S.O.O.M.'s return to Honduras. S.O.O.M. lived his entire life in Honduras until Munguia removed him to the United States, and Orellana never gave Munguia permission to do so.41 Orellana has not spoken directly with Munguia and, until trial, has had only one conversation with S.O.O.M. since they left Honduras42
A. The Convention and ICARA
The Convention, which was adopted in 1980 in response to the problem of international child abduction during domestic disputes, seeks "to secure the prompt return of children wrongfully removed or retained in any Contracting State," and "to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States." Abbott v. Abbott, 560 U.S. 1, 8 (2010) (quoting Convention, art. 1). The Convention seeks to "discourage forum shopping in international child-custody disputes when it takes the form of removing a child to the jurisdiction preferred by one of the parents." Kijowska v. Haines, 463 F.3d 583, 589 (7th Cir. 2006) (citations omitted).
The purpose of the Convention is to "protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence." Sealed Appellant v. Sealed Appellee, 394 F.3d 338, 344 (5th Cir. 2004) (quoting Convention, pmbl.). Essentially, the goal is to "'restore the pre-abduction status quo.'" Id. (quoting Friedrich v. Friedrich, 78 F.3d 1060, 1064 (6th Cir. 1996) (Friedrich II)). The Fifth Circuit has recognized that the Convention's Explanatory Report is "the official history, commentary, and source of background on the meaning of the provisions of the Convention." Id. at 343; Elisa Pérez-Vera, Explanatory Report, in 3 Hague Conference on Private International Law, Acts and Documents of the Fourteenth Session, Child Abduction 426-76 (1982) ("Explanatory Report"). The Explanatory Report states:
[F]rom the Convention's standpoint, the removal of a child by one [parent with custody] without the consent of the other, is ... wrongful, and this wrongfulness derives ... from the fact that such action has disregarded the rights of the other parent which are also protected by law, and has interfered with their normal exercise. ... [The Convention] is not concerned with establishing the person to whom custody of the child will belong at some point in the future. ... It seeks, more simply, to prevent a later decision on the matter being influenced by a change of circumstances brought about through unilateral action by one of the parties.
Id. at 344 (alterations and emphasis in original) (quoting Explanatory Report, ¶71, at 447-48). Under the...
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