Roque-Gomez v. Tellez-Martinez
| Decision Date | 11 December 2014 |
| Docket Number | Case No: 2:14-cv-398-FtM-29DNF |
| Parties | KATYA ROQUE-GOMEZ, Petitioner, v. IRINEO TELLEZ-MARTINEZ, Respondent. |
| Court | U.S. District Court — Middle District of Florida |
This matter comes before the Court on Petitioner Katya Roque-Gomez's Petition for Return of Minor Child (Doc. #1) filed on July 18, 2014. Respondent Irineo Tellez-Martinez filed an Answer and Affirmative Defenses (Doc. #16) on September 22, 2014. After ordering expedited pretrial proceedings, the Court conducted a bench trial on November 14, 2014.
The Petition is filed pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (the "Hague Convention"), Oct. 25, 1980, T.I.A.S. No. 11,670 1343 U.N.T.S. 97, reprinted in 51 Fed. Reg. 10,493 (Mar. 26, 1986) and the International Child Abduction Remedies Act ("ICARA"), 22 U.S.C. § 9001 et seq. Petitioner alleges that Respondent wrongfully removed B.T.R., their eleven year old son, from the Republic of Mexico and has wrongfully retained him in the United States. Respondent counters that the habitual residence of B.T.R. was inFlorida, not Mexico; Petitioner was not exercising her custodial rights at the time of the allegedly wrongful retention; Petitioner consented to the removal of the child from Mexico and subsequently acquiesced to the retention of B.T.R.; B.T.R. objects to being returned to Mexico and has attained an age and degree of maturity sufficient for the Court to take his opinion into account; and this action was commenced more than one year after the date of the alleged wrongful removal and retention and the child is now settled in his new environment.1
The general principles relating to the Hague Convention are well-settled. To address the harm done to children2 by international parental kidnapping/retention, the Hague Convention is designed to restore the factual status quo and protect the legal rights of the non-abducting/retaining parent. The stated objectives of the Hague Convention are (1) to "secure the prompt return of children wrongfully removed to or retained in any Contracting State," and (2) to "ensure that rights of custody and of access under the law of one Contracting State are effectivelyrespected in other Contracting States." Lops v. Lops, 140 F.3d 927, 935 (11th Cir. 1998) (quoting Hague Convention art. 1); see also United States v. Newman, 614 F.3d 1232, 1235-36 (11th Cir. 2010); Baran v. Beaty, 526 F.3d 1340, 1344 (11th Cir. 2008); Pielage v. McConnell, 516 F.3d 1282, 1286 (11th Cir. 2008). Thus, a court considering a petition for the return of a child under the Hague Convention and ICARA "has jurisdiction to decide the merits only of the wrongful removal [or retention] claim, not of any underlying custody dispute . . . The Hague Convention is intended to 'restore the pre-abduction status quo and to deter parents from crossing borders in search of a more sympathetic court.'" Lops, 140 F.3d at 936 (citations omitted) (quoting Friedrich v. Friedrich, 78 F.3d 1060, 1064 (6th Cir. 1996)); see also Baran, 526 F.3d at 1344.
The Hague Convention mandates the return of children to their prior circumstances if one parent's removal or retention violated the custody rights of the other parent and was therefore "wrongful." Hague Convention art. 12; 22 U.S.C. § 9001(a)(4). The removal or retention of a child is "wrongful" where it (1) violates the "rights of custody" of the non-abducting/non-retaining person "under the law of the State in which the child was habitually resident immediately before the removal or retention," and (2) the rights of custody were actually beingexercised at the time of the removal or retention, or would have been exercised but for the removal or retention. Hague Convention art. 3; Pielage, 516 F.3d at 1286-87; Lops, 140 F.3d at 935. Therefore, a petitioner establishes the elements of wrongful removal or retention by demonstrating by a preponderance of the evidence3 that: (1) the habitual residence of the child immediately before the date of the allegedly wrongful removal or retention was in the country to which return is sought; (2) the removal or retention breached the petitioner's custody rights under the law of the child's habitual residence; and (3) the petitioner was actually exercising or would have been exercising custody rights of the child at the time of his or her removal or retention. Chafin v. Chafin, 742 F.3d 934, 938 (11th Cir. 2013); Ruiz v. Tenorio, 392 F.3d 1247, 1251 (11th Cir. 2004); Lops, 140 F.3d at 935-36. If petitioner meets this burden, the child who is wrongfully removed or retained must be promptly returned. Lops, 140 F.3d at 935-36; see also Abbott v. Abbott, 560 U.S. 1, 8-9 (2010).
The general rule that a wrongfully removed or retained child must be returned is subject to six exceptions, each of which may excuse the return of the child. Hague Convention art. 12, 13, 20. A court is not bound to order the return of a child if respondentdemonstrates by a preponderance of the evidence4 that: (1) the person having care of the child was not actually exercising their custody rights at the time of removal or retention; (2) the person having care of the child had consented to or subsequently acquiesced in the removal or retention of the child; (3) "the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views"; or (4) the proceedings were commenced more than one year after the date of the wrongful removal or retention and "the child is now settled in its new environment." Hague Convention art. 12, 13. Additionally, a court is not bound to order the return of a child if respondent demonstrates by clear and convincing evidence5 that: (5) 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"; or (6) return of the child would not be permitted by fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms. Hague Convention art. 13, 20. These "affirmative defenses" are narrowly construed to effectuate the purpose of the Hague Convention. See, e.g., Baran, 526 F.3d at 1345. Even if an exception is established, the Court has discretion to order thereturn of a child if return would further the aims of the Hague Convention. See Miller v. Miller, 240 F.3d 392, 402 (4th Cir. 2001); England v. England, 234 F.3d 268, 270-71 (5th Cir. 2000); Friedrich, 78 F.3d at 1067; Feder v. Evans-Feder, 63 F.3d 217, 226 (3d Cir. 1995).
Based upon the evidence and testimony that the Court found to be credible, the Court makes the following findings of fact:
Katya Roque-Gomez (Petitioner) and Irineo Tellez-Martinez (Respondent) are natural born citizens of Mexico; neither is a United States citizen. Respondent entered the United States illegally in 1999; it is unclear when Petitioner first came to the United States, but she also entered illegally. At the time of Petitioner's entry into the United States, she was lawfully married in Mexico to another man and there is no evidence that the marriage has ever been dissolved.
Petitioner met Respondent in either September or November 2002, and they began dating. In January 2013, Petitioner became pregnant. Respondent testified that he told Petitioner he would be responsible for the child, and asked if she wanted to marry him. Petitioner told Respondent she could not marry him because she was already married in Mexico. Petitioner and Respondent began living together in Fort Myers, Florida, and Petitioner gavebirth to their first son, B.T.R., on September 24, 2003. The parties' second son, K.T.R. (collectively with B.T.R., the "children") was born three years later on September 12, 2006. Both children were born in Lee County, Florida, and are citizens of the United States, as well as Mexican nationals.6 Respondent is the biological father of both children, and is identified as their father on the respective birth certificates. Joint Ex. 1, 6.7
Petitioner and Respondent never married due to Petitioner's existing marriage. Nonetheless, they lived as a family unit in Lee County, Florida from early 2003 to August 2008. B.T.R. was enrolled in school in Lee County, Joint Ex. 4, obtained regular medical treatment in Lee County, Joint Ex. 3, and participated in normal family activities during these years. Petitioner's two younger siblings also lived with them, and in 2008, Respondent bought a house in Cape Coral, Florida in which they were all going to reside.
In August 2008, Petitioner decided to return to Hidalgo, Mexico with her two children. Respondent purchased bus tickets for Petitioner and their two children, and both Petitioner and Respondent executed a Power of Attorney authorizing Petitioner "to travel with our sons between the United States and Mexico and to have temporary custody of them in reference to health care, hospitalization and all parental type responsibilities." Joint Ex. 10.
The parties disagree on the purpose and anticipated duration of this move. Petitioner testified she went to Mexico because she wanted to see her family and because she had an abnormal pap smear test result and wanted medical care. Petitioner further testified that this was a permanent move, and that Respondent agreed that she and the children would live in Mexico permanently. According to Petitioner, Respondent agreed he would come to Mexico in December 2008, and in the meantime would send her money. Petitioner took all of her siblings' belongings and her children's passports, but did not take all of her belongings or those of the children.
Respondent, on the other hand, testified he never agreed that Petitioner could permanently remove the children from Florida to Mexico, and that this was to be a temporary move which would allow Petitioner to visit her mother and take her younger siblings backto Mexico, and allow their...
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