1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Valentin Zarate Diaz, No. CV-19-03183-PHX-DWL
10 Petitioner, ORDER
11 v.
12 Laura Andrea Rios Ibarra,
13 Respondent. 14 15 INTRODUCTION 16 Valentin Zarate Diaz (“Father”) and Laura Andrea Rios Ibarra (“Mother”) are the 17 parents of Son V, a minor child. On May 16, 2019, Father filed a petition under the 18 International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. § 9001 et seq., which 19 implements the provisions of the Hague Convention on the Civil Aspects of International 20 Child Abduction (“the Convention”). (Doc. 1.) The petition alleges that Mother 21 improperly removed Son V from Mexico at some point between August 31 and September 22 3, 2018, and took him to live with her in Arizona. The petition requests, among other 23 things, that the Court “[o]rder immediate return of Son V to [Father] or to an agent of 24 [Father].” (Id. at 14.) 25 FINDINGS OF FACT 26 The parties agreed to forgo an evidentiary hearing and instead submit this case on 27 the briefs. (Doc. 23.) Accordingly, the following findings of fact are based on Father’s 28 Petition (Doc. 1), Mother’s answer (Doc. 21), the documents included as attachments to 1 the parties’ briefs (Docs. 26-1, 26-2, 27-1), and other undisputed facts appearing in the 2 parties’ briefs: 3 Father and Mother are both citizens of Mexico. (Doc. 1 ¶¶ 10-11; Doc. 21 ¶¶ 10- 4 11.) They have never been married. (Doc. 1 ¶ 14; Doc. 21 ¶ 14.) They are the parents of 5 Son V, who was born in Mexico in February 2012. (Doc. 1 ¶ 16; Doc. 21 ¶ 16.)1 They 6 “intermittently lived together for several months when Son V was an infant” but “have not 7 lived together since September 2014.” (Doc. 26-1 at 49 ¶ 4.) Their relationship was 8 “tumultuous.” (Doc. 26-1 at 63 ¶ 7.) Following their break-up, Son V resided with Mother 9 (in a house owned by Father)2 but Father remained actively involved in Son V’s life. (Doc. 10 1 ¶ 16; Doc. 21 ¶ 16.) 11 On November 19, 2015, Father and Mother entered into an agreement addressing 12 their respective rights concerning Son V (the “Agreement”). (Doc. 1 ¶ 19; Doc. 21 ¶ 19; 13 Doc. 26-1 at 7-9.) The parties have provided a Spanish-to-English translation of the 14 Agreement, which contains the following five clauses: 15 (1) Father must pay “Child Support [in] the amount equal to . . . 20%” of Father’s 16 wages. 17 (2) The parties agree that “the days of cohabitation with [Father] will be any day 18 of the week within a prudent schedule for the child, provided that [Father] 19 doesn’t come in an inconvenient state, and that he doesn’t interrupt the 20 child’s chores,” and further agree that if either party has “an event that 21 requires the child, they will have no inconvenient.” 22 (3) “[T]he address where the child will reside will be [a particular house in 23 Sonora, Mexico] where the child currently lives with [Mother].” 24 (4) Father must pay 60% of Son V’s tuition and Mother must pay 40%.
25 1 Mother’s declaration states that Son V was born on February 12, 2013. (Doc. 26-1 at 63 ¶ 6.) However. Father’s declaration provides a birth date of February 3, 2012 (Doc. 26 26-1 at 49 ¶ 3), and Mother admitted in her answer that paragraph 4 of the Petition (which also alleges a 2012 birthday) is accurate. (Doc. 21 ¶ 4.) 27 2 Specifically, Son V and Mother resided together from December 2013 until the fall 28 of 2018 in a home in Sonora, Mexico that is owned by Father. (Doc. 1 ¶¶ 20, 21; Doc. 21 ¶¶ 20, 21.) 1 (5) “In the matter of school vacations, these will be open for both parties, that is 2 to say, they have no objection in both sharing th[ese] holidays, and in 3 Christmas vacations, the child will spend the 25th with [Mother] and from 4 the 26 of December to January 02 of 2016, the child will spend it with 5 [Father] . . . [during which time] the child will be under the care of [Father] 6 in his home, in the understanding that if they go out of the city, it must be 7 upon request of [Mother].” 8 (Doc. 26-1 at 7-9.) Additionally, the Agreement contains a provision certifying that 9 “everything relating to the present agreement, is su[b]mitted to the jurisdiction of the 10 pertinent judge of this judicial district” and concludes with a joint request by Mother and 11 Father for the Agreement to be “su[b]mitted to the Judge of First Instance in Family Matter 12 . . . for its revision and approval in the terms of the [laws of] the State of Sonora.” (Id.) 13 On two different occasions in July 2018, Son V spent 10 days with Father—the first 14 during a vacation with Father to Puerto Vallarta and the second when Mother traveled to 15 the United States. (Doc. 26-1 at 51 ¶ 14.)3 16 On August 23, 2018, Mother requested that Father sign a passport application for 17 Son V to travel to the United States. (Doc 1 ¶ 24; Doc. 21 ¶ 24.) Father refused to sign it. 18 (Doc. 1 ¶ 25; Doc. 21 ¶ 25.) 19 Sometime between August 31, 2018 and September 3, 2018, Mother moved with 20 Son V to the United States. (Doc. 1 ¶ 28; Doc. 21 ¶ 28; Doc. 26-1 at 64 ¶ 17.) Father did 21 not consent to Mother’s removal of Son V from Mexico. (Doc. 26-1 at 50 ¶ 6.) Mother’s 22 purpose in moving to the United States was to accept a job offer to work as a civil engineer 23 at an engineering firm in Arizona. (Doc. 26-1 at 63-64 ¶¶ 2, 13-14.) 24 On September 12, 2018, Father filed a “Motion to Enforce Agreement” with the 25 family court in Sonora, Mexico. (Doc. 26-2 at 48-56 [translated version of document].) 26 Among other things, Father argued in this motion that Mother had violated the third clause 27 3 Although Father did not provide any documentary evidence to prove these visits 28 actually occurred—he simply refers to the visits in his declaration—Mother did not dispute the existence of these visits in her declaration. 1 in their Agreement, which required Son V to reside at a particular home in Sonora, Mexico. 2 (Id. at 51.) Father also stated in the motion that “it is true that [Mother] can freely decide 3 where she will live with my minor child” and argued that the violation of the third clause 4 arose from Mother’s “refus[al] to give me true and necessary information of her 5 whereabouts for me to exercise my rights as a parent.” (Id.)4 6 On October 3, 2018, Mother called Father from the United States. (Doc. 1 ¶ 34; 7 Doc. 21 ¶ 34.) During this call, Father spoke to Son V. (Id.) 8 On or about October 15, 2018, the Mexican family court denied the “Motion to 9 Enforce Agreement” that Father had previously filed. (Doc. 27-1 at 38.) The court’s 10 rationale for denying the motion was that “considering the drastic change in circumstances, 11 ([Mother’s] address), it is not materially possible to enforce the agreement regarding 12 parenting time the way the moving party is requesting.” (Id.) 13 On October 17, 2018, Mother filed a “Notice of Relocation” with the Mexican 14 family court. (Doc. 26-1 at 64 ¶ 17 [Mother’s declaration]; Doc. 26-2 at 59 [translated 15 version of document].) This notice explained that Mother had moved to the United States 16 for “personal and professional reasons.” (Id.) 17 On October 18, 2018, Father filed a “Motion to Revoke” the order denying his 18 motion to enforce. (Doc. 27-1 at 38-39.) 19 On October 23, 2018, the Mexican family court issued an order denying the “Motion 20 to Revoke.” (Doc. 27-1 at 40-42.) In this order, the court explained that it hadn’t denied 21 Father’s previous motion for any merits-based reason—instead, it had denied the motion 22 because Mother’s relocation to the United States meant that “it is not possible to effectuate 23 the enforcement of the agreement . . . by virtue of the fact that the minor child no longer 24 lives in the home where it was agreed he would be placed.” (Id. at 41.) The court further 25 clarified that Father’s “rights are preserved and he may exercise them in the appropriate 26 procedure and form.” (Id.) 27
28 4 The quoted text is fully capitalized in the translated version of the motion, but the Court has eliminated the capitalization here for ease of reference. 1 On November 24, 2018, Mother and Son V “arrived unannounced at [Father’s] 2 place of work in Nogales, Sonora, Mexico.” (Doc. 1 ¶ 39; Doc. 21 ¶ 39; Doc. 26-1 at 65 3 ¶¶ 23-24.) Father ended up spending about one hour with Son V. (Doc. 1 ¶ 41; Doc. 21 4 ¶ 41.) After this visit was complete, Mother returned to the United States with Son V. (Id.) 5 In January 2019, Mother (unaccompanied by Son V) visited Father at his parents’ 6 home in Mexico, where she again requested that Father sign Son V’s passport application. 7 (Doc. 1 ¶ 45; Doc. 21 ¶ 45; Doc. 26-1 at 65 ¶ 28.) Father again refused to sign it. (Id.) 8 On July 9, 2019, Mother filed a “Motion to Modify Parenting Time With Our Minor 9 Child” with the Mexican family court. (Doc. 26-1 at 65 ¶ 31 [Mother’s declaration]; Doc. 10 26-2 at 11-16 [translated version of document].) In this motion, Mother described the 11 Agreement as a document that “established parenting time between non-custodial parents 12 and our child.” (Id. at 12.) 13 LEGAL STANDARD 14 “A court that receives a petition under the Hague Convention may not resolve the 15 questions of who, as between the parents, is best suited to have custody of the child.” 16 Cuellar v. Joyce, 596 F.3d 505, 508 (9th Cir. 2010). Instead, the court must begin its 17 analysis by determining whether “the child has been wrongfully removed or retained within 18 the meaning of the Convention.” 22 U.S.C. § 9003(e)(1)(A). The petitioner—here, 19 Father—bears the burden of proof on this issue and must prove it by a preponderance of 20 the evidence. Id. 21 To determine whether the removal/retention was “wrongful,” a district court must 22 answer a series of four questions: 23 (1) When did the removal or retention at issue take place? (2) Immediately prior to the removal or retention, in which state was the child habitually 24 resident? (3) Did the removal or retention breach the rights of custody attributed to the petitioner under the law of the habitual residence? (4) Was 25 the petitioner exercising those rights at the time of the removal or retention? 26 Mozes v. Mozes, 239 F.3d 1067, 1070 (9th Cir. 2001). 27 If the Court answers these questions in the petitioner’s favor, the burden shifts to 28 the party opposing the return of the child—here, Mother—to prove “by clear and 1 convincing evidence that one of the exceptions set forth in article 13b or 20 of the 2 Convention applies.” Id. § 9003(e)(2)(A). 3 CONCLUSIONS OF LAW 4 The only disputed legal issue in this case concerns the third element of the Mozes 5 test—whether Mother’s removal of Son V from his state of habitual residence (Mexico) on 6 or around August 31, 2018 (the date of the removal) violated the “rights of custody” that 7 were attributed to Father under the laws of the state of habitual residence. (Doc. 23 [parties’ 8 stipulation]; Doc. 27 at 4 [Mother’s brief: “Here, the parties agree the only issue in dispute 9 is the third question. As a result, the return of Son V is only mandated if rights of custody 10 are attributed to Father under the law of the habitual residence.”].) 11 I. Rights Of Custody 12 Under the Convention,5 “rights of custody” are distinguished from “rights of 13 access.” Article 5 of the Convention defines these distinct rights6 as follows: 14 a) “rights of custody” shall include rights relating to the care of the person of 15 the child and, in particular, the right to determine the child’s place of 16 residence; 17 b) “rights of access” shall include the right to take a child for a limited period 18 of time to a place other than the child’s habitual residence. 19 Id. Article 3 of the Convention further provides that “rights of custody . . . may arise in 20 particular [1] by operation of law or [2] by reason of a judicial or administrative decision, 21 or [3] by reason of an agreement having legal effect under the law of [the state of habitual 22 residence].” 23 The seminal decision addressing the meaning of the term “rights of custody” under 24 the Convention is the Supreme Court’s 2010 decision in Abbott v. Abbott, 560 U.S. 1 25 5 The Convention is available at https://assets.hcch.net/docs/e86d9f72-dc8d-46f3- 26 b3bf-e102911c8532.pdf. 27 6 This distinction is significant—the Court doesn’t have authority to order the return of a child if a parent’s mere rights of access have been violated. Abbott v. Abbott, 560 U.S. 28 1, 9 (2010) (“The Convention also recognizes ‘rights of access,’ but offers no return remedy for a breach of those rights.”). 1 (2010). There, a couple living in Chile separated when their son was eight years old. Id. 2 at 5-6. In response, “[t]he Chilean courts granted the mother daily care and control of the 3 child, while awarding the father ‘direct and regular’ visitation rights, including visitations 4 every other weekend . . . .” Id. Additionally, “Chilean law conferred upon [the father] 5 what is commonly known as a ne exeat right: a right to consent before [the mother] could 6 take [the child] out of Chile.” Id. at 6. After the mother removed the child to the United 7 States without the father’s permission, the father filed an ICARA petition in federal court. 8 Id. at 7. The district court and Fifth Circuit both ruled against the father, reasoning that his 9 ne exeat right was only a “veto right” and not a true “right of custody.” Id. The Supreme 10 Court reversed. Although the Court acknowledged “[t]hat a ne exeat right does not fit 11 within traditional notions of physical custody,” it emphasized that the Convention adopted 12 a “broad definition” of the term “rights of custody” that is capacious enough to encompass 13 “[j]oint legal custody, in which one parent cares for the child while the other has joint 14 decisionmaking authority concerning the child’s welfare.” Id. at 12. The Court also stated 15 that it would be “illogical and atextual” to characterize ne exeat as a mere “right of access” 16 because “the joint right to decide a child’s country of residence is not even arguably a ‘right 17 to take a child for a limited period of time.’” Id. at 14 (citation omitted). 18 II. The Agreement 19 Father and Mother entered into the Agreement on November 19, 2015, establishing 20 “the terms of care and cohabitation” related to Son V. (Doc. 26-1 at 7-10.) As noted, the 21 Agreement contains five provisions regarding the parties’ rights and obligations. (Id. at 7). 22 Father argues the Agreement establishes rights of custody. (Doc. 26 at 8-9.) 23 According to Father, “[t]he Agreement establishes the mutually determined joint parenting 24 plan inclusive of how the parties planned to care for and share time with Son V, as well as 25 where he would live.” (Id.) Father also argues the Agreement shows he has rights of 26 custody because it memorializes “rights relating to the care of the person of the child” and 27 “the right to determine the child’s place of residence.” (Id.) 28 Mother argues the Agreement only establishes rights of access for Father. (Doc. 27 1 at 5-6.) Mother notes that the Agreement only permits Father to see Son V during holidays 2 and vacations and requires him to seek Mother’s permission to take Son V out of the city. 3 (Id.) The Agreement also gives custody to Mother every day of the week and, although 4 Father’s time with Son V “will be any day of the week,” Father must exercise this time 5 “within a prudent schedule,” Father must not “come at an inconvenient time,” and Father 6 must not “interrupt Son V’s chores.” (Id.) 7 The Court agrees with Father. The Agreement’s key provision is its third clause, 8 under which Mother and Father jointly agreed that “the address where the child will reside 9 will be” the home owned by Father in Sonora, Mexico, which is the “place where the child 10 currently lives with [Mother].” (Doc. 26-1 at 7.) The necessary implication of this clause 11 is that Mother is precluded from unilaterally moving Son V into a different residence within 12 Mexico—let alone to a different country—without Father’s permission.7 If a ne exeat right 13 constitutes a “right of custody” for purposes of the Convention, it follows that Father’s 14 rights under the Agreement—which go further than a ne exeat right, because the 15 Agreement implicitly prohibits even the intra-country relocation of Son V by Mother—is 16 a “right of custody,” too. 17 Admittedly, Father previously stated, in a motion he filed in Mexican family court 18 in September 2018, that “it is true that [Mother] can freely decide where she will live with 19 my minor child.” (Doc. 26-2 at 51.) This language, when viewed in isolation, is difficult 20 to reconcile with Father’s argument that he has a ne exeat-style right to veto any effort by 21 7 This interpretation is bolstered by the declaration from Father’s expert on Mexican 22 law, Eduardo Chavez Chavez, who opined that the Agreement “provide[s] that both parents agree to the harmonious joint parenting of their child, agreeing that their son would live in 23 the city of Nogales, Sonora (not another place), and that [Father] could interact with their son any day of the week.” (Doc. 26-1 at 26 ¶ 13, emphasis added.) The Court finds this 24 interpretation, and Mr. Chavez, to be credible. In contrast, the Court does not credit the submission by Mother’s expert on Mexican law, Jesus Ivan Lopez Serrano, who opined in 25 part that “if [Mother] . . . needed to change her residence to another city or another country, she was under no obligation to ask [Father] for authorization or permission.” (Doc. 26-2 26 at 32.) In reaching this conclusion, Mr. Serrano stated that “there [is] no clause in the Agreement requiring that Mother apply for or require permission to change her residence 27 to another city or country.” (Id. at 34.) Yet as discussed above, the third clause of the Agreement does just that—it requires Mother and Son V to reside in a particular house in 28 Sonora, Mexico. Mr. Serrano does not specifically acknowledge this clause in his opinion letter, much less attempt to reconcile his opinion with it. 1 Mother to relocate Son V without his permission. Nevertheless, Father persuasively argues 2 that the quoted language must be viewed in the context of when and how it was presented— 3 specifically, as part of a “Motion to Enforce Agreement” that sought to compel Mother to 4 return Son V to Mexico. (Doc. 26 at 8 n.5.) Thus, the quoted language should not be 5 viewed as some sort of binding judicial admission that can override the plain language of 6 the Agreement, which requires Mother to reside with Son V in Mexico. 7 Finally, there is no merit to Mother’s contention that “there have been two judicial 8 decisions by a Sonora court holding that Father does not have custody rights under the 9 Agreement.” (Doc. 28 at 2-3.) The Mexican family court denied Father’s motion to 10 enforce and motion to vacate on procedural grounds, not because it found that Mother had 11 the unilateral right under the Agreement to relocate Son V to another country without 12 Father’s permission. Moreover, in the order of October 23, 2018, the Mexican family court 13 specifically noted that the Agreement contains a provision requiring Son V to “live[] in the 14 home where it was agreed he would be placed.” (Doc. 27-1 at 41.) 15 III. Patria Potestas 16 A. Patria Potestas Defined 17 Father also argues that the Mexican doctrine of patria potestas, or parental 18 authority, grants him a right of custody by operation of law. 8 19 “The doctrine of patria potestas has its roots in Roman law, where it conveyed 20 absolute and despotic rights of a father over his children; today, in Mexico, the doctrine 21 regulates relations between parents and children until the latter reach the age at which they 22 must fend for themselves.” Gonzalez v. Preston, 107 F. Supp. 3d 1226, 1234 (M.D. Ala. 23 2015) (citations and internal quotation marks omitted). Patria potestas “constitutes the 24 ‘most comprehensive’ right that a parent can exercise over the person and property of his 25 or her minor children.” Saldivar v. Rodela, 879 F. Supp. 2d 610, 624 (W.D. Tex. 2012) 26
27 8 Although Father has met his burden of showing he possessed a right of custody under the Agreement—which means his ICARA petition must be granted—the Court will 28 also address his alternative theory of custody (i.e., he had a right of custody by operation of law) so the parties have a complete record in the event of an appeal. 1 (citations omitted). It “establishes the parent’s bundle of rights over a minor child, one of 2 which is formal custody, but it also includes the right to care for the child and make 3 decisions about his or her life.” Preston, 107 F. Supp. 3d at 1234. See also Patricia Begné, 4 Parental Authority and Child Custody in Mexico, 39 Fam. L.Q. 527, 531 (2005) (“[Patria 5 potestas] places a series of correlative rights and obligations on the holder of [patria 6 potestas], such as custody of the minors, the authority to raise them, discipline them, 7 represent them in legal acts, administer their property, feed and care for them, etc.”) 8 (citation omitted). 9 The Mexican State of Sonora—which was the habitual residence of Son V at the 10 time of his removal—codifies the doctrine of patria potestas in its Family Code (“the 11 Code”). The Code defines patria potestas (in the Code, referred to as “parental authority”9) 12 generally as “a set of rights and obligations granted and legally binding on parents, or 13 grandparents where appropriate, to fulfill the obligations to feed, protect, and raise their 14 descendants, and to appropriately manage their assets.” Code art. 308 (found at Doc. 26-1 15 at 18.)10 More specifically, one who has patria potestas over a child is required “to protect 16 and educate [the child] properly” and “observe the [child] and educate [the child] to obey 17 the rules of social coexistence.” Code art. 317 (found at Doc. 26-1 at 20.) That person 18 also has “the faculty to admonish and correct, avoiding always cruel and unnecessary 19 punishments.” Id. 20 B. Whether Father Waived Patria Potestas Rights Under The Agreement 21 Mother argues that patria potestas doesn’t apply here because the parties have a 22 custody agreement and this agreement doesn’t expressly incorporate patria potestas. (Doc. 23 27 at 4-5.) Mother cites Gonzalez v. Gutierrez, 311 F.3d 942 (9th Cir. 2002), in support of 24 this argument. Father disagrees, arguing that patria potestas can’t be waived and “direct
25 9 For uniformity, the Court has changed references to “parental authority” in the Code or other sources to “patria potestas.” 26 10 Father and Mother cited differing translations of Article 308. Mother, in her 27 response brief, stated that Father’s translation “from 2017 is outdated and does not reflect the current language provided in Article 308 as of 2019.” (Doc. 28 at 5.) This distinction 28 is immaterial because the Court’s ultimate conclusions would be the same under either translation of the Code. 1 action by the state is necessary for a parent to lose these rights.” (Doc. 26 at 5-8.) 2 Therefore, he contends, the Agreement couldn’t have extinguished his rights. (Id.) 3 The Court agrees with Father that the Agreement didn’t extinguish his patria 4 potestas rights. In fact, the evidence submitted by both parties demonstrates that Father 5 retains patria potestas rights over Son V. The Code explicitly provides that “[p]arental 6 authority cannot be waived.” Code. art. 340 (found at Doc. 26-1 at 21.) The Code also 7 identifies various ways in which patria potestas can be lost or suspended—none of those 8 include by a custody agreement. Code arts. 338, 339 (found at Doc. 26-1 at 21.) Indeed, 9 the Code states that “[w]hen parents of a born out of wedlock child separate,” as Father 10 and Mother have done here, “both will continue to exercise [patria potestas]” even after 11 an agreement on custody, child support, and visitation has been reached. Code art. 315.1 12 (found at Doc. 26-1 at 19-20.) Moreover, both Father and Mother’s experts opined that 13 patria potestas rights can only be lost or suspended by direct action of the government. 14 (Doc. 26-1 at 25 ¶ 10 [Father’s expert: “[J]ust cause is required to lose [patria potestas] 15 rights, and such rights may not be waived or otherwise lost by either parent over a minor 16 child absent direct action by the government or the State or Sonora.”]; Doc. 26-2 at 32 17 [Mother’s expert: “The Code . . . provides that the right to parent can only be suspended or 18 lost by court order.”].) Further, Father’s expert explicitly opined that “the Agreement in 19 no way causes [Father] to lose his patria potestas rights.” (Doc. 26-1 at 26 ¶ 16.) And 20 Mother’s expert opined that “[w]herever there is an agreement on custody favoring one of 21 the parents, the agreement does not affect at all the non-custodial parent’s rights to exercise 22 [patria potestas].” (Doc. 26-2 at 35.) 23 Gonzalez is not to the contrary. In that case, a Mexican couple with two young 24 children divorced and then entered into a divorce agreement under which the mother 25 retained sole custody of the children and agreed to live with them at a particular address in 26 Jalisco, Mexico. 311 F.3d at 946. The father was granted limited visitation rights but was 27 also given ne exeat rights. Id. at 947. After the mother moved the children to the United 28 States without the father’s permission, an ICARA petition was filed on the father’s behalf. 1 Id. The primary issue presented in Gonzalez was whether the father possessed rights of 2 custody by virtue of the ne exeat clause in the divorce decree. The Ninth Circuit ultimately 3 concluded that “a ne exeat clause does not confer ‘rights of custody’ upon a parent who 4 otherwise possesses only access rights” and thus ruled in the mother’s favor. Id. at 954. 5 This conclusion, of course, was reversed by the Supreme Court in Abbott. Finally, in the 6 last paragraph of the opinion, the Gonzalez court also addressed, in somewhat brusque 7 fashion, the father’s alternative argument “that the Mexican legal concept of patria potestas 8 confers upon him rights of custody under the Convention.” Id. Although the court 9 acknowledged that a recent First Circuit decision had recognized “that patria potestas 10 conferred custody rights as understood under the Convention on both parents under 11 Mexican law,” it held that the First Circuit case was distinguishable because, “unlike the 12 situation [there], the parties have executed a formal, legal custody agreement, thus 13 eliminating any basis for relying on patria potestas.” Id. The court concluded “that patria 14 potestas does not confer ‘rights of custody’ upon a parent given access rights from a 15 custody agreement.” Id. 16 In Mother’s view, Gonzalez stands for the broad proposition that, whenever 17 Mexican parents enter into a written agreement setting forth their parental rights, they are 18 barred from invoking patria potestas as an alternative basis for asserting a right of custody. 19 Although this interpretation isn’t implausible, the Court doesn’t share it. The parents in 20 Gonzalez were residing in the state of Jalisco at the time they entered into the divorce 21 agreement. Here, Father and Mother were residing in a different Mexican state, Sonora, at 22 the time they entered into the Agreement. This difference is significant because each 23 Mexican state codifies patria potestas in its own civil code. Cf. Saldivar, 879 F. Supp. 2d 24 at 624 (patria potestas “is largely governed by the civil codes of Mexican states”). Thus, 25 the Court views Gonzalez’s discussion of patria potestas (i.e., a custodial agreement’s 26 failure to mention patria potestas results in a waiver of patria potestas rights) as a narrow 27 statement about the law of Jalisco, not a broad statement about the law of every Mexican 28 state. Cf. Garcia v. Pinelo, 808 F.3d 1158, 1166 (7th Cir. 2015) (finding Gonzalez 1 distinguishable in an ICARA case arising from the state of Nuevo Leon and rejecting the 2 argument “that patria potestas may be extinguished by [silence in] a custody agreement” 3 because this argument lacks “any basis . . . in the Civil Code for Nuevo Leon”). And as 4 discussed above, the evidence submitted by both parties demonstrates that, under the law 5 of the state of Sonora, patria potestas rights can’t be waived by the mere failure to mention 6 them in a custodial agreement.11 7 Finally, Gonzalez is also distinguishable for a different reason. In the final sentence 8 of the portion of the opinion addressing patria potestas, the court held that this doctrine 9 “does not confer ‘rights of custody’ upon a parent given access rights from a custody 10 agreement.” 311 F.3d at 954 (emphasis added). Here, Father wasn’t given mere access 11 rights under the Agreement—as discussed in Part II above, the Agreement provided him 12 with a right of custody. 13 C. Whether Patria Potestas Is A Right Of Custody 14 Because Father’s rights of patria potestas were not extinguished by the Agreement, 15 the Court must determine whether patria potestas is a right of custody. 16 Father argues patria potestas is broader than physical custody and that he retains 17 “the right to coexist and relate with [his] child regardless of an assignment of custody,” 18 which constitutes a right of custody under the Convention. (Doc. 26 at 5.) Further, Father 19 contends that “courts have . . . overwhelmingly held that a parent’s rights under patria 20 potestas are rights of custody.” (Id.). 21 Mother asserts that the Code merely grants Father the right of “oversight, 22 representation in the eyes of the law, feeding the child and managing the child’s property,” 23 all of which “can be accomplished via rights of access and even from long distances.” 24 (Doc. 28 at 6.) Mother also points to Article 183 of the Code, which provides that “when 25 11 Mother also cites Lalo v. Malca, 318 F. Supp. 2d 1152 (S.D. Fla. 2004), in support 26 of her view that Father implicitly waived his patria potestas rights by not mentioning them in the Agreement. (Doc. 27 at 5.) But in Lalo, the court merely observed that “the parties’ 27 divorce decree specifically incorporates patria potestas, unlike the custody agreement in Gonzalez.” 318 F. Supp. 2d at 1156. Moreover, the Lalo court went on to hold that “patria 28 potestas amount[s] to more than a mere right of access and confers a divisible custody right.” Id. 1 filing for divorce invoking any type of, children under seven years old custody will be 2 assign to their mother.” Id. (found at Doc. 27-1 at 73.) According to Mother, this provision 3 means that Father doesn’t have the right to decide where Son V resides. (Doc. 28 at 7.) 4 The Court agrees with Father that patria potestas constitutes a right of custody under 5 Sonoran law. See generally Gallardo v. Orozco, 954 F. Supp. 2d 555, 572-74 (W.D. Tex. 6 2013) (surveying Sonoran law before concluding that “Petitioner has rights of custody 7 conveyed by patria potestad under the laws of the State of Sonora, Mexico” and that these 8 rights “gave Petitioner specific rights of custody as defined in the Convention”). The Code 9 provides that “[w]hen parents of a born out of wedlock child separate, both will continue 10 to exercise [patria potestas] but must agree on who will retain custody of the minor, as 11 well as the way of administering child support and the right of the noncustodial parent to 12 monitor and relate with the minor.” Code art. 315.1 (found at Doc. 26-1 at 19.) A parent’s 13 rights under patria potestas, therefore, must be more expansive than the rights to (1) 14 physical custody, (2) the obligation to financially support the child, and (3) right to 15 “monitor and relate with” the child, because both parents “will continue to exercise [patria 16 potestas]” after agreeing on those three items. 17 Such residual rights—those remaining after an agreement on those three items—are 18 rights of custody under the Convention. Patria potestas, independent of which parent 19 possesses formal physical custody, grants the parent the right to raise his or her child and 20 make decisions on the child’s behalf. Preston, 107 F. Supp. 3d at 1234 (“[P]atria potestas 21 establishes the parent’s bundle of rights over a minor child, one of which is formal custody, 22 but it also includes the right to care for the child and make decisions about his or her life.”); 23 Begné, 39 Fam. L.Q. at 531 (“[Patria potestas] places a series of correlative rights and 24 obligations on the holder of [patria potestas], such as custody of the minors, the authority 25 to raise them, discipline them, represent them in legal acts, administer their property, feed 26 and care for them, etc.”) (citation omitted). Indeed, in Gonzalez, although the Ninth Circuit 27 held that the father’s reliance on a First Circuit case was misplaced because the parents in 28 that case hadn’t waived their patria potestas rights, the court didn’t quarrel with the First 1 Circuit’s general observation “that patria potestas conferred custody rights as understood 2 under the Convention on both parents under Mexican law.” 311 F.3d at 954. See also 3 Lalo, 318 F. Supp. 2d at 1155 (“[A] fair reading of Gonzalez does not indicate that patria 4 potestas is merely a right of access.”). 5 The Code reflects this view. Parents exercising patria potestas in Sonora have the 6 right to “raise their descendants.” Code art. 308 (found at Doc. 26-1 at 18.) Even if a 7 parent “do[es] not have custody assigned, [the parent] ha[s] the right of coexistence and to 8 relate with [his] descendants.” Code art. 315.2 (found at Doc. 26-1 at 20). Further, a parent 9 with patria potestas has an obligation to “protect and educate” the child, “to admonish and 10 correct” the child, and “educate [the child] to obey the rules of social coexistence.” Code 11 art. 317 (found at Doc. 26-1 at 20). This bundle of rights permits a parent to make decisions 12 on behalf of his or her child. 13 This conclusion is in accord with numerous decisions interpreting patria potestas 14 rights in other Mexican states to constitute rights of custody. See, e.g., Whallon v. Lynn, 15 230 F.3d 450, 458 (1st Cir. 2000) (disagreeing that “patria potestas rights are closer to what 16 the Convention means by ‘rights of access’” because patria potestas includes “a 17 meaningful, decisionmaking role in the life and care of the child, and not the mere access 18 to the child associated with visitation rights”); Gonzalez v. Pena, 194 F. Supp. 3d 897, 902 19 (D. Ariz. 2016) (“Gonzalez had custodial rights to the Children under the Mexican law 20 doctrine of patria potestas.”); De La Riva v. Soto, 183 F. Supp. 3d 1182, 1195 (M.D. Fla. 21 2016) (explaining that “[i]ncluded in [the patria potestas] bundle of rights is the power to 22 determine where a child resides, which is one of the ‘rights of custody’ expressly 23 recognized under Hague Convention article 5(a), and which is breached when a parent 24 retains a child without consent”); Aguilera v. De Lara, 2014 WL 3427548, *2 & n.1 (D. 25 Ariz. 2014) (concluding that “Petitioner had custody rights under Mexican law” and 26 explaining that “[t]hese custody rights under Mexican law, referred to as ‘patria potestas’ 27 recognize a parent’s right to care for the child, reside with the child, and provide for the 28 child’s necessities”); Seaman v. Peterson, 762 F. Supp. 2d 1363, 1379 (M.D. Ga. 2011) 1 (“[P]atria potestas rights are rights of custody.”); Lalo, 318 F. Supp. 2d at 1156 (“[P]atria 2 potestas amount[s] to more than a mere right of access and confers a divisible custody 3 right.”). 4 Mother’s argument that patria potestas rights “can be accomplished via rights of 5 access” misses the mark. (Doc. 28 at 6.) The question is whether patria potestas rights 6 are rights of custody, not whether they can be accomplished via rights of access. As 7 previously noted, “[t]he Convention defines ‘rights of access’ as ‘includ[ing] the right to 8 take a child for a limited period of time to a place other than the child’s habitual residence,’ 9 and the ICARA defines that same term as ‘visitation rights.’” Abbott, 560 U.S. at 14 10 (citation omitted). Patria potestas is more than the right to visit the child or “take [the] 11 child for a limited period of time.” It is the right to raise one’s child, which includes the 12 ability to make decisions for the child. 13 Finally, Mother’s reliance on article 183 of the Code is unavailing. Although 14 Mother’s expert opined that “a mother who has sole custody of the child does not require 15 permission or authorization of the non-custodial parent to change her residence, be it to a 16 different city or country” and that “[t]he rights of the non-custodial parent consist only of 17 having oversight over the child and spending parenting time with him” (Doc. 27-1 at 59- 18 60), this interpretation of patria potestas rights for a non-custodial parent is difficult to 19 reconcile with the text of the Code and is far narrower than the interpretations of patria 20 potestas found in secondary sources and the cases cited above. Moreover, there is a 21 legitimate question whether Mother’s expert cited inapplicable and/or overruled law in 22 reaching some of his opinions. (Doc. 26-1 at 26-27 [Father’s expert’s opinion that “[t]he 23 statutory law produced by [Mother’s] counsel (again, specifically. Article 4.228) is 24 controlling only in the State of Mexico. Regardless, the Supreme Court for Mexico 25 declared in 2017 that laws that provide a preference for women with regard to the raising 26 or children, such as Article 4.228, are unconstitutional because men and women are viewed 27 equally under Mexico’s Constitution”].) 28 … Accordingly, IT IS ORDERED that: 2 (1) Father’s petition (Doc. 1) is granted; 3 (2) Mother shall return with Son V to Mexico within 14 days of this order;'* 4 (3) | The Clerk of Court shall enter judgment accordingly and terminate this case; 5|| and 6 (4) Father may file a motion for expenses, as requested in the Petition (Doc. | at 6) and as authorized by Article 26 of the Convention and 22 U.S.C. § 9007(b)(3), within || 14 days of entry of this order. 9 Dated this 13th day of September, 2019. 10 11 Po
13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 In her brief, Mother stated that “if the Court ultimately holds that Son V must return to Mexico, Mother will quit her job in Phoenix, Arizona, and return to live in Sonora with 27|| SonV.... Infact, Mother would request that any holding that orders the return of Son V include maintaining Mother’s physical custody of Son V.” (Doc. 27 at 8.) The requirement 98 || that Mother “return with Son V to Mexico within 14 days of this order” is intended to be consistent with this request.
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