United States District Court, W.D. Texas, Austin Division
PITMAN UNITED STATES DISTRICT JUDGE
Andres Soto Pena filed a petition under The Hague Convention
on Civil Aspects of International Child Abduction (the
“Convention”), T.I.A.S. No. 11670, 19 I.L.M.
1501, codified by the International Child Abduction Remedies
Act (“ICARA”), 42 U.S.C. §§ 11601, et
seq., seeking the return of his children to Mexico. This
Court commenced a full evidentiary hearing, during which the
Court received evidence and heard sworn testimony. Having
considered the evidence, testimony, and oral arguments
presented during trial, along with the applicable law, the
Court now enters the following findings of fact and
conclusions of law pursuant to Federal Rule of Civil
Procedure 52(a). Any finding of fact that should be construed
as a conclusion of law is adopted as such. Any conclusion of
law that should be construed as a finding of fact is adopted
Edgar Andres Soto Pena (“Petitioner”) alleges
Respondent Alejandra Eggleton Serrano
(“Respondent”) wrongfully removed their three
children A.S.E., D.S.E., and S.S.E. (the
“children”) from Mexico to the United States in
June 2017. (Am. Compl., Dkt. 3, at 4). Petitioner filed this
suit on September 16, 2017, asking the Court to order the
return of the children to their habitual residence in Mexico.
(Compl., Dkt. 1). Petitioner filed a motion for temporary
restraining order on September 20, 2017. (Pet'r's
Mot. TRO, Dkt. 5). On that same day, this Court granted that
motion, in part, ordering that (1) Respondent was prohibited
from removing the children from this Court's jurisdiction
pending further order from the Court; (2) a hearing on the
matter was set for September 29, 2017, at which Respondent
was ordered to appear and show cause why the temporary
restraining order should not be extended; (3) Respondent was
required to surrender the childrens' passports; and (4)
Petitioner was ordered to serve Respondent with the Amended
Verified Petition and other documents by September 22, 2017.
(Dkt. 7). By an order the next day, this Court granted
Petitioner's motion for issuance of service of citation
by U.S. Marshals. (Dkt. 8).
hearing on September 29, 2017, the Court extended the
temporary restraining order until the next hearing and set a
briefing schedule. (See Dkt. 12). The Court also
ordered weekend visitation for Petitioner. (Id.).
Also on September 29, Respondent surrendered the
children's passports per the temporary restraining order.
(Dkt. 13). After briefing was submitted by both parties,
(Dkts. 18, 19), the Court held a full hearing on the merits
on November 3, 2017, during which the Court received evidence
and heard sworn testimony.
the hearing, two witnesses testified: Petitioner Edgar Andres
Soto Pena and Felix Roberto Saenz Gonzalez. (Witness List,
Dkt. 21). Mr. Saenz Gonzalez, who testified on behalf of
Respondent, was held out as an expert on Mexican family law.
Petitioner objected to the testimony, contending that Mr.
Saenz Gonzalez was not qualified to testify as an expert. The
Court took the objection under advisement and addresses the
objection in this order. See infra Part III.A.
FINDINGS OF FACT
following facts have been established by a preponderance of
the evidence. Petitioner and Respondent are Mexican
nationals who married in 2005 in Mexico. (Pet'r's
Mot. TRO, Dkt. 5, at 2). Petitioner and Respondent are the
parents of A.S.E., D.S.E., and S.S.E. (Id.). The
family resided in Mexico until August 2009, when they moved
to Austin, Texas, while Petitioner completed a one-year
Master of Business Administration program. (Trial Exhibits,
Dkt. 22-2, at 64). From May 2010 until October 2012, the
family resided in Texas while Petitioner worked in Texas.
(Id.). In October 2012, the family moved to
Monterrey, Mexico. (Id.). A few years later in
August 2014, the family returned to Texas. (Id. at
65). Petitioner returned to Mexico in March 2015.
(Id.). Respondent and the children remained in Texas
until July 2015. (Id.). Upon their return to Mexico,
Respondent initiated divorce proceedings. (Id.).
and Respondent obtained a divorce in December 2015. (Dkt. 5,
at 2). The divorce was a voluntary divorce, and the parties
agreed to its terms. (Dkt. 22-1, at 55). Per the divorce
decree, Petitioner and Respondent agreed that “the care
and custody of the under-age children was to be executed by
[Respondent], and the legal custody by both parents, during
this proceeding and once the sentence has been
executed.” (Id. at 60). They further agreed
that their children “shall be under the custody of the
female spouse, ” and that Petitioner would have
coexistence rights, including the ability to visit with his
children on Wednesdays after school and every other weekend.
(Id. at 61-62).
decree also addressed changes in residence. Petitioner and
Respondent agreed to notify each other and the court of any
change in domicile. (Id.). Specifically, they agreed
that “[i]n the event [Respondent] changes her domicile
to a city other than Monterrey, Nuevo Leon, [Respondent]
shall still hold custody of her under-age children, and
[Petitioner] shall continue to be entitled to the coexistence
rights with his under-age children under the same provisions
hereof.” (Id. at 62).
March 14, 2017, Petitioner and Respondent modified the
divorce decree by agreement. (Dkt. 22-2, at 30). That
modification addressed Petitioner's right of access on
Wednesdays after school and every other weekend, changing the
terms and conditions of those visits. (Id. at
30-32). The modification expressly stated that the December
2015 decree, with the exception of the modifications
regarding Petitioner's visitation, otherwise remained
unaltered. (Id. at 32).
2017, Respondent advised Petitioner that she and the children
had moved to the Austin, Texas metro. (Id. at 68).
The Mexican court that handled Petitioner and
Respondent's divorce and subsequent modification
addressed Respondent's move to Austin with the children
in a document dated October 24, 2017. The Mexican court
[N]o change in residence could be carried out unilaterally by
the person holding care and custody of the minors, because
the ownership of said right does not grant an
all-encompassing and exclusive power to determine the place
the minors should reside in, this derives from the fact such
an important decision should consider the other parent as
well, because having full exercise of parental rights, grants
the other parent the right to coexist with his children, and
even to secure their physical, spiritual and moral
upbringing, as well as to prepare them for having a
profession or specific activity that may be useful for them,
and which may not be accomplished if the minors are moved to
a distant place without his consent, therefore it is
undeniable both parents must agree to this change by mutual
(Id. at 91-92).
October 27, 2017, the Secretary of Foreign Relations for the
Mexican Central Authority certified that the children's
“removal from their habitual residence in Mexico was
wrongful given the fact that there is a valid access rights
agreement signed by the parents on December 16th, 2015,
before the Fifth Family Court of the First District in
Monterrey, Nuevo Leon.” (Id. at 101). The
Secretary also stated that Petitioner and Respondent hold
patria potestad rights over the children and that,
because they “share parental rights over the children,
and those rights include making a decision about the
children's place of residence . . . . Thus, any
unilateral decision made by the mother in contravention
thereof is a breach of the rights attributed to the other
parent and falls within the definition of illicit retention
contained in Article 3 of the Convention.”
CONCLUSIONS OF LAW
the evidentiary hearing on November 3, 2017, Mr. Saenz
Gonzalez testified as an expert witness on issues of family
law in Mexico. He testified that he is a litigating attorney
in Mexico, who has practiced for seventeen years in the areas
of family law and civil law. He also represents Respondent in
the family law proceedings ongoing in Mexico. Petitioner
objected to his testimony on two bases: (1) he was not
eligible to testify as an expert since he represents
Respondent, and (2) he was not qualified to testify as an
expert on family law. Upon inquiry from the Court, Petitioner
abandoned the first argument-that Mr. Saenz Gonzalez's
representation of Respondent in Mexico disqualified him from
testifying as an expert in this instant case. Petitioner
maintained his other objection regarding Mr. Saenz
Gonzalez's qualifications and, during cross examination,
Petitioner's counsel asked him whether he had written an
article published in a legal journal. He responded that he
Mexican law may pose some challenges for American courts that
“lack adequate familiarity with such law. Recognizing
the peculiar nature of the issue of foreign law, Federal Rule
of Civil Procedure 44.1 liberalizes the evidentiary rules for
determining such law.” Saldivar v. Rodela, 879
F.Supp.2d 610, 621 (W.D. Tex. 2012). Rule 44.1 provides, in
part: “In determining foreign law, the court may
consider any relevant material or source, including
testimony, whether or not submitted by a party or admissible
under the Federal Rules of Evidence.” Fed.R.Civ.P.
44.1. Pursuant to Rule 44.1, this Court accepts Mr. Saenz
Gonzalez's testimony as testimony of an expert witness.
See also Bernal v. Gonzalez, 923 F.Supp.2d 907, 918
(W.D. Tex. 2012) (accepting ...