from the United States District Court for the Northern
District of Texas
SMITH, BARKSDALE, and HIGGINSON, Circuit Judges.
HAWKINS BARKSDALE, Circuit Judge:
Lemus Contreras (Lemus), a native and citizen of Mexico
residing in the United States, challenges the denial of her
grave-risk defense to Alberto Ontiveros Soto's
(Ontiveros) seeking return of their child, A.O.L., to Mexico
pursuant to the Hague Convention on the Civil Aspects of
International Child Abduction (Hague Convention), 24 Oct.
1980, T.I.A.S. No. 11670, S. Treaty Doc. No. 99-11. At issue
is whether the court committed two legal errors in concluding
Lemus failed to prove, by the requisite clear and convincing
evidence, the existence of a "grave risk that
[A.O.L.'s] return would expose [him] to physical or
psychological harm or otherwise place [him] in an intolerable
situation". Hague Convention, art. 13(b). AFFIRMED.
and Ontiveros married in 1995, and have three children. The
family resided in Mexico before Lemus came to the United
States with two of the three children-A.O., female, age 15,
and A.O.L., male, age 8-to escape alleged abuse by Ontiveros.
Although their familial problems began much earlier, the
couple "mutually decided" in September 2014 to file
for divorce in Mexico.
April 2015, Lemus told Ontiveros she and the children were
going to a party in another town, a three-hour trip. Instead,
she came to the United States with A.O. and A.O.L. Lemus
sought political asylum in the United States; her application
is pending. After learning the location of his wife and
children, Ontiveros pursued in district court a
petition-originally filed in Mexico-for return of an abducted
child (A.O.L.) under the Hague Convention. (A.O.L. was the
only child subject to the petition because the Hague
Convention does not apply to children, such as A.O., over 16;
at the time of the bench trial, she was past 16 years of age.
Hague Convention, art. 4.)
bench trial, the parties presented incompatible versions of
events leading to Lemus' departing Mexico. She accused
Ontiveros of, inter alia: physically abusing her and
their daughter, A.O.; psychologically abusing the entire
family; committing acts of violence against extended family
members; and committing adultery. Although, with one
exception, Ontiveros contested her accusations, he accused
Lemus of, inter alia: committing adultery, incurring
excessive debts, and assaulting him. To these ends, six
witnesses testified: Ontiveros, Lemus, A.O., Soledad
Contreras Lemus (Lemus' sister, hereinafter, Contreras),
A.O.L., and Edith Sauno (their neighbor in Mexico).
Ontiveros testified he and Lemus fought because she was
financially irresponsible. He admitted to having one physical
altercation early in the marriage, when he gave her
"some spankings with the hand". He claimed Lemus
often assaulted him, and denied further physical
altercations. He stated he and Lemus, both represented by
counsel, reached a divorce agreement, and he gave her at
least 2, 200 pesos a week to support the children, even
though the divorce fell through. He testified, unrebutted,
that, before A.O.L. was removed from Mexico, the two saw each
other almost every day; they would eat meals and play soccer;
and A.O.L. would "stay and spend the night with
[Ontiveros]". Also unrebutted was that Ontiveros never
physically abused A.O.L.
Lemus described her relationship with Ontiveros as "slow
torture", stating he beat her almost daily (or at least
monthly) during their relationship. She recounted occurrences
of alleged abuse: he beat her with a belt in the shower when
she was pregnant with A.O.L.; he fought her brother when he
confronted Ontiveros; and he assaulted A.O. and Contreras for
trying to protect Lemus, throwing A.O. and Lemus onto the
ground and into a garden rail. She stated he also
psychologically abused her and the children, with A.O.'s
wanting to hang herself and A.O.L.'s wetting the bed. She
testified the Mexican police and district attorney refused to
help her, forcing her to flee to the United States.
testimony, however, was at times inconsistent. Although she
described Ontiveros' throwing A.O. into the garden rail,
she also testified he "never got into a fight or other
physical altercation with any of [the] children"; was
inconsistent in describing the frequency of Ontiveros'
physical abuse; made confused and incredible statements
regarding her inability to obtain a divorce; and, after
stating Ontiveros owned "four houses and [a]
warehouse", then stated he "[did not] have a place
where he [could] go and eat steadily much less [A.O.L.] will
have a place like that".
was also impeached on cross-examination. For example, when
confronted with her signed affidavit, prepared for an ex
parte proceeding in Texas state court, she accused
Ontiveros of forging her signature. The affidavit erroneously
stated that, "[i]f it were safe for [her] to do so,
[she] would get a divorce", even though she had filed,
with Ontiveros, a joint, voluntary petition for divorce in
daughter removed to the United States, A.O., testified
favorably for Lemus, but in a sometimes contradictory
fashion. She stated her parents fought every time Ontiveros
drank (and he drank often), but she only saw her parents
fight four times, the first when she was seven. She felt
"sad" and "scared" when her parents
"fought", and she corroborated the incident where
Ontiveros threw her and Lemus on the ground into the garden
rail. She said she did not want to live with her father
because he "was very bad to [Lemus]". On
cross-examination, A.O. testified she was "nervous"
about testifying because she was "afraid [Lemus] might
get in trouble" and even "be put in jail" if
she (Lemus) lost the case.
testified Lemus and Ontiveros engaged in physical fights, and
she had "several fights" with Ontiveros
"because [she was] trying to defend [her] sister".
Other than corroborating Ontiveros' fighting Lemus'
brother, however, Contreras could not establish personal
knowledge of such fights. She knew only about the abuse,