United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
C. GODBEY UNITED STATES DISTRICT JUDGE.
Order addresses Plaintiff Gloria Medina's petition for
return of child under the Hague Convention on the Civil
Aspects of International Child Abduction, Oct. 24, 1980,
T.I.A.S. No. 11670, S. Treaty Doc. No. 99-11 (the
“Hague Convention”) and the International Child
Abduction Remedies Act, 22 U.S.C. §§ 9001-11
(“ICARA”). For the reasons set forth below, the
Court denies the petition.
Origins of the Dispute
case concerns a dispute between a mother and a father over a
child. Beginning around 2007, Medina and Brandon Villasanti
dated and lived together in Dallas, Texas, United States. In
September 2009, Medina gave birth to a child
(“SBV”) fathered by Villasanti. Eventually,
Medina and Villasanti's relationship ended. Medina and
SBV moved to San Luis Potosi, Mexico while Villasanti
remained in Dallas. For several years, Villasanti would
annually visit Medina and SBV in San Luis Potosi.
critical events during the summer of 2015, Medina's and
Villasanti's stories diverge. Medina alleges that
Villasanti requested Medina's permission to take SBV to
the United States merely for a limited vacation. To
memorialize this agreement, Villasanti sought Medina's
signature on a contract written in English. But because
Medina only understands Spanish, Villasanti orally translated
the agreement to Spanish for her. Medina maintains that
Villasanti's translation of the agreement matched his
initial request: to take SBV to the United States for a brief
vacation. Thus, Medina signed the agreement.
disputes Medina's allegations, claiming instead that he
clearly requested and received Medina's permission to
take SBV to the United States indefinitely. In support,
Villasanti produces the agreement at issue. Signed by
Villasanti on July 31, 2015, notarized on the same day, and
signed by Medina a day later, the agreement indicates that
Medina grants permission for SBV to travel and live with
Villasanti and that Medina trusts Villasanti to take care of
SBV while she is living with him. Villasanti further claims
that his translation of the agreement to Spanish accurately
reflected its terms, including that it would allow him to
retain SBV without any temporal limit. Based on the
agreement, Villasanti took SBV to Dallas.
to Medina, Villasanti began wrongfully retaining SBV in late
August of 2015 when he did not return the child to Mexico. A
few weeks after bringing SBV to the United States, Villasanti
instead enrolled the child in school for the upcoming
academic year. Around then, Villasanti apparently began
ignoring Medina's telephone calls. Since then, Medina has
been unable to get in contact with Villasanti and SBV, now 8
years old, has not been returned to San Luis
result, Medina filed the instant petition for return of SBV.
On May 29, 2018, the Court held a bench trial on Medina's
petition. At trial, both Medina and Villasanti testified, the
former via video conference from Mexico and the latter in
person. In pertinent part, Villasanti testified that
returning SBV to San Luis Potosi would expose the child to a
grave risk of physical harm, given the violence that plagues
the region and her malnourished and bug-bitten body while
residing there. Upon considering the evidence produced at
trial, the Court denies Medina's petition for the reasons
set forth below.
The Hague Convention and ICARA
petition arises under the Hague Convention. The Hague
Convention's 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 ICARA. Abbott v. Abbott, 560 U.S. 1, 5
(2010). 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 return of a
child and for establishing affirmative defenses to return.
See 22 U.S.C. § 9003. In addition, Congress
made clear that the provisions in ICARA “are in
addition to and not in lieu of” the Hague Convention.
Id. § 9001(b)(2).
unequivocally limits the scope of United States courts to
decide “rights under the Convention and not the merits
of any underlying child custody claims.” Id.
§ 9001(b)(4). The purpose of ICARA is to give courts the
tools to implement the Hague Convention's primary goals
of “restor[ing] the pre-abduction status quo and . . .
deter[ring] parents from crossing borders in search of a more
sympathetic court.” England v. England, 234
F.3d 268, 271 (5th Cir. 2000) (quoting Friedrich v.
Friedrich, 78 F.3d 1060, 1067 (6th Cir. 1996)).
“[A]ny debate on the merits of the question, i.e. of
custody rights, should take place before the competent
authorities in the State where the child had its habitual
residence prior to its removal [or retention] . . . .”
Elisa Pérez-Vera, Explanatory Report ¶ 19, in 4
Hague Conference on Private Int'l Law, Acts and Documents
of the Fourteenth Session, Child Abduction 426, 430 (1982).
a petitioner seeking return of a child may file a petition in
either federal or state court for a decision made “in
accordance with the Convention.” 22 U.S.C. §
9003(a), (b), (d). A court's jurisdiction is proper when
the alleged wrongfully removed or retained child is
physically located within the court's jurisdiction.
Id. § 9003(b). The Hague Convention ceases to
apply when the child attains the age of 16 years. Hague
Convention, art. 4.
[Hague] Convention's central operating feature is the
return remedy.” Abbott, 560 U.S. at 9. A
petitioner seeking the return of a child under ICARA has the
burden of proof to establish by a preponderance of the
evidence that “the child has been wrongfully removed or
retained within the meaning of the [Hague] Convention.”
22 U.S.C. § 9003(e)(1). A parent wrongfully removes or
retains a child under the Hague Convention “when he or
she removes or retains the child outside of the child's
country of habitual residence” and the removal or
retention breaches the custody rights of the nonremoving
parent under the laws of that country. Sealed Appellant
v. Sealed Appellee, 394 F.3d 338, 343 (5th Cir. 2004);
Hague Convention, art. 3(a). Furthermore, the nonremoving or
nonretaining parent must have been exercising those custody
rights at the time of removal. Sealed Appellant, 394
F.3d at 343; Hague Convention, art. 3(b).
The Court Denies ...