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Medina v. Villasanti

United States District Court, N.D. Texas, Dallas Division

June 19, 2018

GLORIA MEDINA, Plaintiff,
v.
BRANDON VILLASANTI, Defendant.

          MEMORANDUM OPINION AND ORDER

          DAVID C. GODBEY UNITED STATES DISTRICT JUDGE.

         This 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.

         I. Origins of the Dispute

         This 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.

         Regarding 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.

         Villasanti 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.

         According 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 Potosi.[1]

         As a 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.

         II. The Hague Convention and ICARA

         Medina's 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).

         ICARA 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).

         Procedurally, 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.

         “The [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).

         III. The Court Denies ...


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