Villalta Argueta v. Lemus
| Decision Date | 09 March 2022 |
| Docket Number | Civil Action 3:21cv209-NBB-JMV |
| Court | U.S. District Court — Northern District of Mississippi |
| Parties | DENIS ANTONIO VILLALTA ARGUETA PETITIONER v. BESSY NORIBETH HERNANDEZ LEMUS RESPONDENT |
REPORT AND RECOMMENDATION
This matter is before the undersigned following an evidentiary hearing[1] and post-hearing briefing for a report and recommendation on the Petitioner's complaint filed pursuant to the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. §9003 (2015) (formerly 42 U.S.C. §11603 (1995)), and “The Convention on the Civil Aspects of International Child Abduction, done at The Hague on October 25, 1980.” (“The Convention”). The issue before the Court is whether jurisdictionally the minor child of the parties should be returned to Honduras under the Hague Convention or should remain in the United States for purposes of determining custody. The issue of custody would be determined by either a state court here in the United States or a court of proper jurisdiction in Honduras.
The Hague Convention is an international treaty to which both the United States and Honduras are signatories. See Sanchez v. R.G.L, 761 F.3d 495, 500 (5th Cir. 2014). The Hague Convention was adopted in 1980 in response to the emerging problem of international child abductions perpetrated by parents, grandparents, and close family members. See Mozes v. Mozes, 239 F.3d 1067, 1069-70 (9th Cir. 2001). The Hague Convention sought to remedy the situation where such abductors unilaterally remove a child from his or her habitual residence seeking a country whose courts are friendlier to them for deciding custodial disputes. See Abbott v Abbott, 560 U.S. 1, 20 (2010).
The Hague Convention's stated purpose is “to secure the prompt return of children wrongfully removed to 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.” Hague Convention, art. 1. The United States is a Contracting State and Congress implemented its provisions through the International Child Abduction Remedies Act (“ICARA”), 102 Stat. 437, 42 U.S.C. §§ 11601 et seq. ICARA establishes procedures for applying the Hague Convention in the courts of the United States, specifically assigning burdens of proof for proving a case for the return of a child and for establishing affirmative defenses to return. See 42 U.S.C. § 11603. In addition, Congress made clear that the provisions in ICARA “are in addition to and not in lieu of the Hague Convention. Id. at § 11601(b)(2).
Under ICARA, anyone seeking the return of a child allegedly wrongfully removed to or retained in the United States may commence a civil action in any court that has jurisdiction over the action and the place where the child is located. Id. § 11603(b). Once an ICARA action is filed, the “court in which [the] action is brought . . . shall decide the case in accordance with the Convention.” Id. § 11603(d). Though the Hague Convention is silent with regard to burdens and standards of proof, ICARA provides that the petitioner seeking the return of the child has the burden of proving by a preponderance of the evidence that “the child has been wrongfully removed or retained within the meaning of the Convention.” Id. § 11603(e)(1)(A). This is sometimes referred to as the “prima facia case” and is comprised of establishing, by a preponderance of the evidence (“POE”), that: (a) the respondent has retained the child somewhere other than the child's habitual residence; (b) respondent's retention of the child violated Petitioner's custody rights in the country where the child habitually resided; and (c) at the time of Respondent's retention of the child, Petitioner was exercising his custody rights and would still be exercising his custody rights but for Respondent's retention of the child in the United States. See Alanis v. Reyes, 230 F.Supp.3d 535, 539 (N.D. Miss. 2017).
If a prima facia case is established, the respondent then has the burden of proving that one of the affirmative defenses listed in Articles 12, 13, or 20 applies. See § 11603(e)(2). The standard of proof for these defenses is either by a preponderance of the evidence or by clear and convincing evidence. See § 11603 (e)(2)(A)(B).[2]
On September 23, 2021, Petitioner filed his Verified Petition for Return of Child to Honduras and for Immediate Issuance of Show Cause Order pursuant to The Hague Convention and the International Child Abduction Remedies Act, 22 U.S.C. §§ 9001 et seq. The petition, which was served on Respondent on October 14, 2021, charges that the respondent illegally and wrongfully removed to/retained in the United States the couple's minor child born December 19, 2015. The petition alleges that the father, the mother, and the child are all citizens of Honduras. The child was born in Maryland, while the parties were visiting the United States. Although they believed themselves to be married at the time, they apparently later learned their marriage was not legal due to a technicality regarding the filing of the marriage license. Though the parties were visiting the United States when the child was born, they returned to Honduras thereafter and lived together as a family there until August 29, 2020, when, as discussed in greater detail below, mother and child left Honduras for the United States to stay with a family friend as they had done on prior occasions. They had a round trip return ticket to Honduras for Sept. 26, 2020, but they did not return. Instead in or around 2020 to 2021, Mother met and later married another man and remains today with the child in the United States.
The parties have stipulated in the instant case that the Father has established a prima facia case. As such, there remains for decision only the issue of whether the mother has established, by the requisite degree of proof, one of the affirmative defenses raised by her, and if she has, whether the court should nevertheless exercise its discretion to order the child returned to Honduras.
The Mother advances the following affirmative defenses under Articles 12 and/or 13 of the Convention and 22 U.S.C. §9003(e)(2): (a) that Father had consented and/or acquiesced to the child remaining in the United States; (b) that the child would be subjected to grave risk of physical or psychological harm if he were returned to Honduras, with the basis of this claim being domestic violence that Father had allegedly perpetrated against Mother, or that the child should not be returned to Honduras because he would be placed in an “intolerable situation” due to gang violence and drug trafficking in La Pita, Honduras, where the child had lived with both of his parents; and (c) that more than one year has passed since the date of wrongful removal, and that the child has become well settled in the United States and should not be returned.
Prior to Mother removing the child from Honduras on August 29, 2020, for travel pursuant to a round trip ticket to the United States with a return date of September 26, 2020, the child was enrolled in school in Honduras and attended the Happy Days School. See Trial Exs. 6 (enrollment) and 7 (photos at school). Mother testified that the child had friends at his school in Honduras and that prior to her removing the child from Honduras, the child spent a great amount of time with Maternal Grandmother and frequently spent time with the child's aunts, uncles, and cousins. Mother testified that her sister and the child's cousins lived minutes away from them in Honduras, and Mother's other sibling lived about 45 minutes away from them. Father gave undisputed testimony that the child attended church in Honduras with Mother and Father. Mother testified that Father took the child to visit Father's family in another part Honduras, and that the child spent time with his cousins on Father's side of the family, which numbered more than ten. Both parties testified that they had family celebrations in Honduras with the child. Mother admitted that the child had a dog in Honduras, and Father still has the dog.
Prior to the August 29, 2020, trip to the United States, Father and Mother had a history of visiting the States. Mother testified that she previously traveled here on at least three occasions since the child's birth to visit Bessy Interiano Lopez (“Bessy”), who had been friends with Mother since 2009 and with Father since 2012. Mother admitted that she previously worked for Bessy during at least one of her prior visits to stay with Bessy in the United States, and Bessy testified that Mother previously worked for her every time she came to visit the United States. When Mother visited Bessy in the United States, she would always buy a round-trip ticket, according to the testimony of Maternal Grandmother. Bessy testified that the parties would always stay with her and would stay for one to two months.
Mother testified that the plane ticket she used to come to the United States in August 2020 was one that Bessy gave Mother as a birthday present in January 2020. The flight was originally scheduled for June 2020. Mother was unable to use the plane ticket in June 2020 because the airports had closed due to Covid restrictions, so Mother rescheduled the flight for August 29, 2020. Maternal Grandmother testified that Mother acted like she was going to be coming back to Honduras prior to her leaving Honduras on August 29, 2020. It is also undisputed that Mother and the child had a round-trip plane ticket to return to Honduras from America, and that the ...
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