The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY January 4, 2024
2024COA2
No. 22CA1867, Marriage of Gonzalez Morales — Family Law — Uniform Child-custody Jurisdiction Enforcement Act — Warrant to Take Physical Custody of Child — Convention on the Civil Aspects of Child Abduction — Patria Potestas
This case requires a division of the court of appeals to address,
for the first time in Colorado, the doctrine of patria potestas and its
impact on a parent’s ability to seek the return of a child to their
habitual place of residence if the child was wrongly removed and
transported to another country. In addressing this issue, the
division sets forth the proper framework for determining whether a
parent has sufficient custodial rights to invoke the protections of
the Hague Convention on the Civil Aspects of International Child
Abduction. As relevant to the present dispute, because the parties’
divorce decree did not eliminate father’s patria potestas rights, the
division concludes that he retained sufficient rights of custody to pursue an order in this jurisdiction — where the child is currently
present — for the return of his daughter to Mexico. Because the
trial court reached a contrary conclusion, the division reverses and
remands the case for further proceedings. COLORADO COURT OF APPEALS 2024COA2
Court of Appeals No. 22CA1867 Garfield County District Court No. 21DR30071 Honorable Denise K. Lynch, Judge
In re the Marriage of
Juan Antonio Gonzalez Morales,
Appellant,
and
Abril Dubbe Meixueiro,
Appellee.
ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS
Division III Opinion by JUDGE SCHUTZ J. Jones and Johnson, JJ., concur
Announced January 4, 2024
The Harris Law Firm PLLP, Richard A. Harris, Katherine O. Ellis, Kady L. Tran, Denver, Colorado, for Appellant
Defiance Law Firm, Peter A. Rachesky, Glenwood Springs, Colorado, for Appellee ¶1 Juan Antonio Gonzalez Morales (father) appeals the district
court’s order granting the C.R.C.P. 41(b) motion of Abril Dubbe
Meixueiro (mother) seeking the dismissal of a proceeding initiated
by father under the provisions of the Convention on the Civil
Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No.
11,670 (Hague Abduction Convention), and its implementing
statutes, 22 U.S.C. §§ 9001-9011.
¶2 The parties’ dispute requires us to address, for the first time in
Colorado, the doctrine of patria potestas and its impact on a
parent’s ability to seek the return of a child to their habitual place
of residence if the child was wrongly removed and transported to
another country.
¶3 In addressing this issue, we set forth the proper framework for
determining whether a parent has sufficient custodial rights to
invoke the protections of the Hague Abduction Convention. As
relevant to the present dispute, because the parties’ divorce decree
did not eliminate father’s patria potestas rights, we conclude that he
retained sufficient rights of custody to pursue an order in this
jurisdiction — where the child is currently present — for the return
of his daughter to Mexico. Because the district court reached a
1 contrary conclusion, we reverse and remand the case for further
proceedings.
I. Background
¶4 The parties were married in Texas in 2014 and have one
daughter, who was born in 2015. Shortly after the child’s birth, the
parties relocated to Mexico, where they settled in the city and state
of Chihuahua. Father filed for divorce in September 2019. In
November 2020, the Family Court of the Morelos Judicial District,
Chihuahua, Mexico, entered a decree dissolving the marriage.
¶5 The decree memorialized the parties’ agreement regarding
their child. As relevant here, the decree provided that mother
would have custody of the child with father having regular
parenting time. Father’s parenting time included every other
weekend, two hours each Wednesday evening, half of the child’s
summer break, and shared holidays. In early 2021, father went to
mother’s home in Chihuahua for his scheduled parenting time and
discovered that mother and the child were missing.
¶6 Shortly thereafter, believing that mother had left the country
with the child, father applied to the Mexican authorities for the
return of the child under the Hague Abduction Convention. In
2 June 2021, after learning that the child was in Colorado, father
filed in the district court of Garfield County a petition for the
registration and expedited enforcement of a child-custody
determination pursuant to the Uniform Child-custody Jurisdiction
and Enforcement Act. See §§ 14-13-101 to -403, C.R.S. 2023.
Father also sought and obtained a warrant under section 14-13-
311, C.R.S. 2023, and the Hague Abduction Convention to take
immediate custody of the child and return her to Mexico.
¶7 In October 2022, after a year of trying to locate mother and the
child, father served mother with the district court pleadings and the
warrant. The district court promptly set a hearing on father’s
request to return the child to Mexico pursuant to the Hague
Abduction Convention.
¶8 At the hearing, the parties presented competing Spanish to
English translations of the decree.1 After father presented his case,
mother moved for a directed verdict in her favor under C.R.C.P. 50,
contending that father had not proved that he possessed rights of
1 Although there are linguistic variations between the two
translations, the parties do not point to any substantive differences.
3 custody sufficient to entitle him to relief under the Hague Abduction
Convention. The court deferred ruling on the issue and instead
allowed mother to begin presenting her case opposing the return of
the child. The district court then set the case for an additional day
of testimony but also ordered the parties to submit written briefs on
mother’s motion for a directed verdict in the interim.
¶9 After reviewing the briefs, the court construed mother’s motion
for a directed verdict as a motion for entry of judgment under
C.R.C.P. 41(b)(1). The court resolved the motion in mother’s favor,
concluding that, under the decree and Mexican law, father did not
have rights of custody that entitled him to seek the return of the
child under the Hague Abduction Convention.
II. Standards of Review Under C.R.C.P. 41(b)(1)
¶ 10 C.R.C.P. 41(b)(1) provides that, when an action is tried by the
court without a jury, after the moving party’s presentation of
evidence, “the defendant, without waiving his right to offer evidence
in the event the motion is not granted, may move for a dismissal on
the ground that upon the facts and the law the plaintiff has shown
no right to relief.” When ruling on a motion pursuant to C.R.C.P.
41(b)(1), the district court “must determine whether judgment in
4 favor of defendant is justified on the evidence presented.” Colo.
Coffee Bean, LLC v. Peaberry Coffee Inc., 251 P.3d 9, 25 (Colo. App.
2010) (quoting DSCO, Inc. v. Warren, 829 P.2d 438, 441 (Colo. App.
1991)). C.R.C.P. 41(b)(1) states that, when a court grants such a
motion, it must “make findings as provided in Rule 52.” See
C.R.C.P. 52 (titled “Findings by the Court”).
¶ 11 Our review of a judgment or order entered following a trial to
the court presents a mixed question of fact and law. State Farm
Mut. Auto. Ins. Co. v. Johnson, 2017 CO 68, ¶ 12. “We apply a
bifurcated standard to such questions, reviewing the evidentiary
factual findings for an abuse of discretion and the legal conclusions
de novo.” Id. Therefore, in reviewing the grant of a C.R.C.P.
41(b)(1) motion, we defer to the district court’s factual findings “[i]f
reasonable minds could differ over the inferences and conclusions
to be drawn from the evidence at the conclusion of a plaintiff’s
case.” Colo. Coffee Bean, 251 P.3d at 25.
III. The Hague Abduction Convention
¶ 12 The purpose of the Hague Abduction Convention is to
promptly return children who are wrongfully removed from their
place of habitual residence, unless one of the narrow exceptions to
5 return applies. See 22 U.S.C. § 9001(a)(4); In re Marriage of Jeffers,
992 P.2d 686, 690 (Colo. App. 1999). “The Convention is based on
the principle that the best interests of the child are well served
when decisions regarding custody rights are made in the country of
habitual residence.” Abbott v. Abbott, 560 U.S. 1, 20 (2010). Thus,
the Hague Abduction Convention should not be interpreted to
permit a parent to select the country to adjudicate parental
responsibilities by crossing a border. See id. at 21; see also March
v. Levine, 249 F.3d 462, 472 (6th Cir. 2001) (“The . . . Convention
. . . [was] specifically designed to discourage those who would
remove or retain children in the hopes of seeking a ‘home court
advantage’ . . . .”).
¶ 13 Under the Convention, the removal of a child is wrongful if
a. it is in breach of rights of custody attributed to a person, . . . either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
b. at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
6 Hague Abduction Convention art. 3. If the petitioner establishes
these elements, the court “shall order the return of the child
forthwith,” id. at art. 12, unless the responding party can establish
one of the exceptions under Articles 12, 13 or 20. 22 U.S.C.
§ 9003(e)(2).
¶ 14 “No wrongful removal exists without the possession of
custodial rights by the parent seeking the child’s return.”
Lieberman v. Tabachnik, 625 F. Supp. 2d 1109, 1116 (D. Colo.
2008). “[R]ights of custody” are defined to “include rights relating to
the care of the person of the child and, in particular, the right to
determine the child’s place of residence.” Hague Abduction
Convention art. 5(a). However, rights of custody are distinct from
“rights of access,” which “include the right to take a child for a
limited period of time to a place other than the child’s habitual
residence.” Id. at art. 5(b). A petitioning party that only has rights
of access does not have a specific remedy for the return of a child
under the Hague Abduction Convention. Lieberman, 625 F. Supp.
2d at 1116-17.
¶ 15 In determining whether a parent has rights of custody, courts
look to the law of the child’s habitual residence. Hague Abduction
7 Convention art. 3(a); Abbott, 560 U.S. at 10 (“This Court consults
Chilean law to determine the content of [father’s] right, while
following the Convention’s text and structure to decide whether the
right at issue is a ‘righ[t] of custody.’”). Rights of custody sufficient
to allow a petitioner to seek the removal of a child under the Hague
Abduction Convention are quite broad. See Palencia v. Perez, 921
F.3d 1333, 1339 (11th Cir. 2019) (“The Convention’s intent is for
courts to ‘invoke[] in the widest possible sense’ the law of the child’s
habitual residence.” (quoting Elisa Pérez-Vera, Hague Conf. on Priv.
Int’l L., Explanatory Report on the 1980 Hague Convention on the
Civil Aspects of International Child Abduction ¶ 67 (1982)).
[T]he violation of a single custody right suffices to make removal of a child wrongful. That is, a parent need not have “custody” of the child to be entitled to return of his child under the Convention; rather, he need only have one right of custody. Further, he need not have a sole or even primary right of custody.
Furnes v. Reeves, 362 F.3d 702, 714-15 (11th Cir. 2004), abrogated
on other grounds by Lozano v. Montoya Alvarez, 572 U.S. 1 (2014);
see also Palencia, 921 F.3d at 1338 (“The term ‘rights of custody’
does not have a fixed definition, but it is not limited to physical
custody.”).
8 IV. Discussion
¶ 16 Father contends that the district court wrongfully granted
mother’s C.R.C.P. 41(b)(1) motion and denied his petition for the
return of the child because the court erroneously concluded that
the decree did not provide him with any “rights of custody” as
defined by the Hague Abduction Convention. Specifically, father
argues that the district court erred by relying on Ibarra v.
Quintanilla Garcia, 476 F. Supp. 2d 630 (S.D. Tex. 2007), to hold
that the decree’s award of custody to mother eliminated all rights of
custody that father had under Mexican law, including rights under
the Mexican doctrine of patria potestas. We turn now to the
substance of father’s contention.
¶ 17 Parental rights in Mexico encompass more than one right of
custody. One of those rights is patria potestas, which “has its roots
in Roman law,” under which the doctrine “conveyed absolute and
despotic rights of a father over his children.” Saldivar v. Rodela,
879 F. Supp. 2d 610, 623 (W.D. Tex. 2012). The doctrine has been
significantly modified over time, and today patria potestas refers to
the reciprocal authority of mother and father (and sometimes
grandparents) to exercise parental authority that encompasses “the
9 comprehensive physical, mental, moral[,] and social protection of
the minor child.” Whallon v. Lynn, 230 F.3d 450, 457 (1st Cir.
2000); see Saldivar, 879 F. Supp. 2d at 624 (“[P]atria potesta[s]
constitutes the ‘most comprehensive’ right that a parent can
exercise over the person and property of his or her minor children.”
(quoting Stephen Zamora et al., Mexican Law 482 (2004))).
¶ 18 “In other words, patria potestas establishes the parent’s
bundle of rights over a minor child, one of which is formal custody,
but it also includes the right to care for the child and make
decisions about his or her life.” Gonzalez v. Preston, 107 F. Supp.
3d 1226, 1234 (M.D. Ala. 2015); cf. Whallon, 230 F.3d at 458
(“[P]atria potestas, like physical custody, plainly means something
‘independent’ from mere visitation rights.”).
¶ 19 The doctrine of patria potestas is codified in the Civil Code of
Chihuahua, which, according to the translation furnished to the
district court, provides that “[p]arental authority is exercised over
the person and property of the children” and that “[m]inor children
not emancipated, are under parental authority as long as there is
one of the ancestors who must exercise it according to law.” Código
Civil del Estado de Chihuahua, arts. 389, 390 (hereinafter Chih.
10 Civ. Code);2 see also Saldivar, 879 F. Supp. 2d at 624 (articles 388
to 402 of the Chihuahua Civil Code recognize patria potestad3 as “a
bundle of correlative rights over a minor child” that are “equally
shared by the mother and the father”); Gonzalez, 107 F. Supp. 3d at
1234.
¶ 20 Mother does not dispute that the rights encompassed by patria
potestas are sufficient rights of custody to allow a party to
prosecute an action for the return of a child under the Hague
Abduction Convention. See Whallon, 230 F.3d at 459 (holding that
patria potestas rights under Mexican law constituted rights of
custody under the Convention); Lieberman, 625 F. Supp. 2d at
1124 (concluding that “patria potestas rights are not mere access
2 The Chihuahua Civil Code was not introduced as an exhibit at the
hearing, but father provided a translated version of the relevant portions as an attachment to his legal brief submitted in response to mother’s motion for a directed verdict. The district court quoted father’s translation in its order. Mother does not appear to object to father’s inclusion of or reliance on the translated code, and both parties reference the code provided by father in their appellate briefs. 3 Though commonly referred to as patria potestas, the doctrine is
also sometimes referred to as patria potestad.
11 rights to the minor children” but also include the rights of custody
under the Convention).
¶ 21 Instead, citing article 393 of the Chihuahua Civil Code, which
provides that, “[i]n case of separation of those who exercise parental
authority, they may agree to the terms of their exercise,” mother
contends that the parties’ custody agreement, as incorporated into
the decree, supersedes father’s patria potestas rights. See Chih.
Civ. Code, art. 393. We disagree because nothing in the decree
specifically provides that father surrendered his patria potestas
rights.
¶ 22 Like the district court, we conclude that the minor differences
in the parties’ translations of the decree do not impact our analysis.
Using father’s translation, the fourth clause of the decree gave
“definitive custody” to mother; whereas under mother’s translation,
she received “full care and custody.” Either way, the decree placed
the child in the care of mother, with father receiving regular visits
under the fifth clause. See Patricia Begné, Parental Authority and
Child Custody in Mexico, 39 Fam. L.Q. 527, 534 (2005)
(“Consequently, although Mexican law refers to care and custody
12 (cuidado y custodia), it suffices to use the term custody on its own,
which means to ‘look after with care.’”).
¶ 23 Mother is correct that a custody agreement, in some
circumstances, may override the doctrine of patria potestas. See
Altamiranda Vale v. Avila, 538 F.3d 581, 587 (7th Cir. 2008)
(“[P]atria potestas is a default doctrine and hence does not override
rights conferred by a valid custody agreement between the
parents.”); Gonzalez, 107 F. Supp. 3d at 1234 (“In the case of
parental separation, the civil code provides that patria potestas
rights and obligations continue, though parents mutually may alter
these terms by agreement.”). But while the decree provides that
mother has primary physical custody of the child, it is silent as to
the parties’ exercise of parental authority or patria potestas over the
child, including the right to make decisions for the child and to
provide the “physical, mental, moral[,] and social protection” of the
child. Whallon, 230 F.3d at 457; Gonzalez, 107 F. Supp. 3d at
¶ 24 The decree’s silence leaves us to resolve the difficult question
of whether, as mother contends, the decree extinguished father’s
patria potestas rights. In many cases involving foreign divorce
13 decrees or custody agreements, the unambiguous text of the decree
or agreement provides the reviewing court with a clear answer. See
Lieberman, 625 F. Supp. 2d at 1117 (where the parties’ agreement
in the decree provided that “[b]oth parties shall have the paternal
authority of their minor children,” father maintained patria potestas
rights even though mother had custody of the children); Gatica v.
Martinez, No. 10-21750-CIV, 2010 WL 6744790, at *2-3 (S.D. Fla.
Oct. 13, 2010) (unpublished report and recommendation) (decree
did not extinguish father’s patria potestas rights despite mother
having custody because the decree provided that “[b]oth parties
agree to retain parental authority”), adopted, 2011 WL 2110291
(S.D. Fla. May 25, 2011) (unpublished order); cf. Takeshi Ogawa v.
Kyong Kang, 946 F.3d 1176, 1178, 1180 (10th Cir. 2020) (father
lacked rights of custody because the decree explicitly awarded only
mother parental authority, which, under Japanese law, included
the right to determine the child’s place of residence).
¶ 25 Here, the decree’s silence on the issue of and the existence of
default patria potestas rights under the law of Chihuahua leads us
to conclude that father did not surrender such rights. Therefore,
we hold that father maintained rights of custody sufficient to
14 pursue an action for the return of the child under the Hague
¶ 26 Our decision is informed by Garcia v. Pinelo, 125 F. Supp. 3d
794, 799 (N.D. Ill.), aff’d, 808 F.3d 1158 (7th Cir. 2015). In Garcia,
as in this case, the parties’ custody agreement, which was adopted
as an order of the Mexican court, did not expressly address patria
potestas or parental authority. See id. at 806. And, as here, the
agreement in Garcia awarded the mother custody and established a
fixed parenting time schedule for the father. Id. Likewise, when the
father in Garcia petitioned in a United States court for the return of
the child under the Hague Abduction Convention, the mother
asserted that he lacked sufficient rights of custody because the
agreement and resulting custody order extinguished his patria
potestas rights. Id. at 805.
¶ 27 In rejecting the mother’s contentions, the court in Garcia
examined the civil code of the state of Nuevo León, Mexico, which —
like Chihuahua’s civil code — affords both parents patria potestas
rights by default. See id.; Chih. Civ. Code, art. 394. The Garcia
court acknowledged that patria potestas rights may be superseded
by rights delineated in a valid custody agreement. See 125 F. Supp.
15 3d at 805 (citing Altamiranda, 538 F.3d at 587). But Garcia
reasoned that the father retained his patria potestas rights because
the custody agreement was silent on the issue, nothing in the
Nuevo León civil code provided that patria potestas rights were
automatically terminated in a custody agreement, and the Mexican
court that adopted the parties’ custody agreement did not explicitly
reject father’s patria potestas rights. Id. at 807.
¶ 28 As in Garcia, we look to the local civil code, which provides
that “[o]nly by court order may [a parent] . . . lose the right to
coexistence . . . as well as in cases of suspension or loss of parental
authority.” Chih. Civ. Code, art. 394. As previously noted, there is
no express or implied provision in the decree that suspends father’s
parental authority. Mother argues that article 393 of the
Chihuahua Civil Code allowed the parties to agree on the terms of
their custody arrangement in the decree. See Chih. Civ. Code, art.
393. That is true, as far as it goes. But nothing in the decree
suggests that the parties, in fact, reached an agreement contrary to
the default position that father retains patria potestas rights.
¶ 29 Mother tries to distinguish Garcia based on that court’s
finding that the parties had “no settled mutual intent” for the child
16 to leave Mexico. See Garcia, 125 F. Supp. 3d at 802. But mother
has failed to explain how this finding was relevant to Garcia’s
holding that the father maintained his patria potestas rights, or how
it is relevant to the present dispute.
¶ 30 Mother also directs our attention to Gonzalez v. Gutierrez, 311
F.3d 942 (9th Cir. 2002), abrogated by Abbott, 560 U.S. 1. But all
that case holds (besides the since-overruled holding that the
doctrine of ne exeat4 does not by itself create a right of custody, see
Abbott, 560 U.S. at 10) is that patria potestas is a default doctrine
and hence does not override those rights actually addressed by a
valid custody agreement between the parents. Gonzalez, 311 F.3d
at 954. Indeed, Gonzalez is supportive of father’s position because,
as we mentioned previously, we must defer to the Chihuahua Civil
Code because the parties’ decree failed to address patria potestas.
Gonzalez did not need to reach the issue we do because the
doctrine of patria potestas cannot supplant the express provisions
4 Ne exeat refers to an “equitable writ restraining a person from
leaving, or removing a child or property from, the jurisdiction.” Lieberman v. Tabachnik, 625 F. Supp. 2d 1109, 1120 (D. Colo. 2008) (quoting Black’s Law Dictionary 1060 (8th ed. 2004)).
17 of a custody agreement. See id.; see also Hague Abduction
Convention art. 3(a) (requiring courts to look to the law of the
child’s habitual residence). Thus, we do not find Gonzalez to be
instructive.
¶ 31 We likewise reject mother’s and the district court’s reliance on
Ibarra, 476 F. Supp. 2d at 633-34. In Ibarra, even though the
decree at issue expressly preserved the father’s “parental authority”
over the child, the court concluded that his patria potestas rights
had been extinguished. Id. In reaching this conclusion, the court
leaned heavily on the testimony of the father, who was a Mexican
attorney, that the “right of custody that I had with the minor, I left
that to the mother.” Id. at 635. Father made no similar concession.
¶ 32 To the extent that mother suggests that the district court did
not err because the decree extinguished father’s rights of custody
by allowing her to remove the child from the country, we disagree.
Nothing in the text of the decree allows mother to permanently
relocate from Mexico, and the sixth clause of the decree, cited by
mother, only references “temporary travel” and requires the
travelling party to provide “dates for the planned travel to the other
parent.”
18 ¶ 33 Moreover, the sixth clause grants both parents the right of
temporary travel with the child — including trips out of the country
— on one week’s prior notice to the other. In addition, the decree
required the parents to surrender the child’s passport to the court
for a period of six months. These reciprocal grants of travel rights,
together with the associated notice requirements and the temporary
surrender of the child’s passport, are inconsistent with mother’s
claim that she possessed the unfettered right to permanently move
the child to another country two months after the dissolution of
marriage became final.
¶ 34 Moreover, other cases interpreting the civil code of Chihuahua
have concluded that, within the codified doctrine of patria potestas
is a right to determine a child’s place of residence. See Saldivar,
879 F. Supp. 2d at 625 (quoting article 398 of the Chihuahua Civil
Code, which provides that “[t]he abduction or retention of the minor
away from his habitual residence, without the permission of those
who are exercising patria potesta[s] or [who] have custody, will give
rise to the right of procedure of restitution established in the Code
of Civil Procedure,” and discussing how this provision was
specifically amended in response to Mexico’s adoption of the Hague
19 Abduction Convention); Gonzalez, 107 F. Supp. 3d at 1234 (“Patria
potestas also confers the right to live with the child and determine
the child’s location.”).
¶ 35 In sum, we conclude that because father had sufficient rights
of custody under the doctrine of patria potestas to maintain a
wrongful removal action under the Hague Abduction Convention,
the district court erred by granting mother’s C.R.C.P. 41(b) motion.
We accordingly reverse the district court’s order granting that
motion and remand the case for further proceedings consistent with
C.R.C.P. 41(b)(1), which provides that a denial of a motion under
that rule does not constitute a waiver of a defendant’s “right to offer
evidence in the event the motion is not granted.”
V. Wrongful Retention Under the Hague Abduction Convention
¶ 36 Because we conclude that the district court erred by holding
that father did not have sufficient rights of custody to maintain a
wrongful removal proceeding under the Hague Abduction
Convention, we decline to address father’s alternative contention
that the district court failed to consider the wrongful retention of
the child under the Convention.
20 VI. Disposition
¶ 37 The district court’s order is reversed, and the case is
remanded for further proceedings, including the completion of
mother’s presentation of her case in opposition to father’s request to
return the child to Mexico, and issuance of an order that includes
conclusions of law consistent with this opinion.
JUDGE J. JONES and JUDGE JOHNSON concur.