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Francisco Javier Montes v. Patricia Buyauskas

February 24, 2012

FRANCISCO JAVIER MONTES
RAMIREZ, PLAINTIFF,
v.
PATRICIA BUYAUSKAS, DEFENDANT.



The opinion of the court was delivered by: DuBOIS, J.

MEMORANDUM

Table of Contents

I. INTRODUCTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

II. PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

III. FINDINGS OF FACT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

A. The Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

B. The Family's Life in Mexico. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

C. Departure from Mexico and Events of July and August 2010.. . . . . . . . . . . . . . . . . . 8

D. Petitioner's Efforts to Regain Custody. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

E. Life of Respondent and Children in the United States.. . . . . . . . . . . . . . . . . . . . . . . 12

F. Communications Among Petitioner, Respondent, and Children After Departure. 14

G. Views of Paquito and Katie.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

IV. CONCLUSIONS OF LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

A. The Case Is Within the Scope of the Hague Convention, and Abstention Is Not Appropriate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

1. The Hague Convention Applies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

2. The Case Poses No Abstention Problems.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

B. Petitioner Has Established a Prima Facie Case for Return of Children. . . . . . . . . 19

1. First Prong of Prima Facie Case: The Retention Took Place No Later Than July 25, 2010. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

2. Second Prong of Prima Facie Case: The Children's Habitual Residence Immediately Prior to Wrongful Retention Was Mexico. . . . . . . . . . . . . . . . . . . 22

3. Third Prong of Prima Facie Case: The Wrongful Retention Breached Petitioner's Custody Rights Under Mexican Law. . . . . . . . . . . . . . . . . . . . . . . . 23

i. Legal Standard Under the Hague Convention. . . . . . . . . . . . . . . . . . . . . . . . 23

ii. Custody Law in the State of Jalisco, Mexico. . . . . . . . . . . . . . . . . . . . . . . . . . 24

iii. Application of Jalisco, Mexico, Custody Law. . . . . . . . . . . . . . . . . . . . . . . . . 25

4. Fourth Prong of Prima Facie Case: Petitioner Was Exercising Custody Rights at the Time of Retention. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

5. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

C. Respondent Has Established Affirmative Defenses to Return of Children. . . . . . . 28

1. The Article 12 Well-Settled Affirmative Defense Is Established.. . . . . . . . . . . . 29

i. The Well-Settled Affirmative Defense Is Available to Respondent.. . . . . . . 30

ii. The Well-Settled Affirmative Defense Applies. . . . . . . . . . . . . . . . . . . . . . . . 32

2. The Article 13 Mature-Child-Objecting Affirmative Defense is Established. . 35

D. A Discretionary Order of Return of Children Is Not Appropriate.. . . . . . . . . . . . . 37

E. Petitioner Is Not Entitled to Fees and Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

V. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

I. INTRODUCTION

This case arises under the Convention on the Civil Aspects of International Child Abduction (referred to as "the Hague Convention" or "the Convention"). Petitioner Francisco Javier Montes Ramirez, a Mexican citizen, alleges that his children's mother, respondent Patricia Buyauskas, wrongfully moved their three minor children, Paquito, Katie, and Chelsey, to the United States in July 2010 without his permission. Presently before the Court is the Petition for Return of Children to Petitioner ("the Petition"), in which petitioner seeks the return of his three children to Mexico. After considering the testimony of the witnesses, the exhibits received in evidence, and the arguments of counsel, the Court makes the Findings of Fact and Conclusions of Law set forth below and denies the Petition.

II. PROCEDURAL HISTORY

Petitioner filed the Petition on October 13, 2011, and filed a Petition for Immediate Issuance of Show Cause Order to Respondent on November 29, 2011. On November 30, 2011, the Court granted petitioner provisional relief pending a hearing pursuant to 42 U.S.C. § 11604(a), which authorizes "measures under Federal or State law, as appropriate, to protect the well-being of the child involved or to prevent the child's further removal or concealment before the final disposition of [a Hague Convention] petition." The provisional relief included, inter alia, scheduling a hearing at which respondent was required to appear and to show cause as to why the three children should not be returned to Mexico. (Nov. 30, 2011, Order Granting Petition for Immediate Issuance of Show Cause Order to Respondent.)

The Court held an evidentiary hearing on December 22, 2011, and January 18, 2012.*fn1

Petitioner attended the first day of the hearing and testified in person with the assistance of a Spanish-language interpreter. He participated in the second day of the hearing by telephone from Mexico with the assistance of Spanish-language interpreters who were present in the courtroom. On each hearing date, the Court also conducted in camera interviews of the two oldest children in the presence of both parties' counsel but without the parties present.

III. FINDINGS OF FACT*fn2

The Court makes the following Findings of Fact pursuant to Federal Rule of Civil Procedure 52(a).

A. The Parties

1. Petitioner is a Mexican national who presently resides in the city of Zapopan, which is located near Guadalajara in the Mexican state of Jalisco. (Application for Assistance Regarding Francisco Javier Montes Jr. ("Hague Application"), Pet'r's Ex. 4, at 1; Tr. Dec. 22, 2011 Hrg. ("12/22/11 Tr.") 11.) He has always lived in Mexico. (12/22/11 Tr. 11.)

2. Around 1992, while visiting his sister in Philadelphia, petitioner met respondent at a party. (Id. at 11--12.) Respondent, a United States citizen, moved to Mexico to live with petitioner approximately three months after they met. (Id. at 12.)

3. Petitioner and respondent married in West Chester, Pennsylvania, on August 23, 1997. (Id.; Marriage Certificate, Exhibit to Hague Application Regarding Kate Alexis Montes, Pet'r's Ex. 4, at 1.)

4. Petitioner and respondent have three children together: Francisco Javier, Junior, born January 7, 2000, age twelve ("Paco" or "Paquito") (referred to as "Paquito")*fn3 ; Kate Alexis, born August 14, 2003, age eight ("Katie"); and Chelsey Megan, born March 3, 2009, age two. (Hague Application Regarding Francisco Javier Montes Jr. 1; Hague Application Regarding Kate Alexis Montes 1; Hague Application Regarding Chelsey Megan Montes, Pet'r's Ex. 4, at 1.)

5. All three children were born in the United States and are United States citizens, but, with the exception of some visits to relatives in the greater Philadelphia area, they never resided in the United States before August 2010. (12/22/11 Tr. 12, 15--16.)

A. The Family's Life in Mexico

1. Petitioner works as a "systems engineer," repairing computers. He also holds a taxi cab permit from the Mexican government and earns some income by leasing the permit, although he also drives a cab on a "part-time" basis when the lessees do not wish to drive. (Id. at 30.) Petitioner earns the equivalent of 450--500 United States dollars per month. (Id. at 30, 44.)

2. Petitioner's home in Mexico, where he lived with respondent and their children, is a three-bedroom apartment owned by petitioner's sister, Lourdes Rankin. (Id. at 45--46, 99.) Petitioner pays his sister rent by doing work for her, including "painting and maintenance." (Id.)

3. In Mexico, Paquito was most recently enrolled in fifth grade, and Katie was in second grade; Chelsey was too young for school. (Id. at 13.) The children attended a large public school at which the school day lasted four hours. (Id. at 61; Tr. Jan. 18, 2012 Hrg. ("1/18/12 Tr.") 30.)

4. The children had friends in Mexico and participated in activities like "karate and soccer," and the family was active in the local Catholic church. (12/22/11 Tr. 13.)

5. The children received inadequate medical care in Mexico because the family lacked medical insurance. (1/18/12 Tr. 38, 45--46.) In Mexico, the children did not have regular doctors or dentists, and they only were able to see a doctor when they were sick. (Id.) After Paquito arrived in the United States, respondent learned that Paquito had contracted a latent form of tuberculosis in Mexico that required nine months of antibiotic treatment. (Id. at 58--59.)

6. Petitioner was responsible for at least some childcare, including taking the children to school and activities, spending time with them after school and on the weekends, and eating meals with them. (12/22/11 Tr. 14.) Petitioner's testimony that he was solely responsible for taking care of the children in Mexico while respondent "would paint her fingernails at home" lacks credibility and is rejected. (Id. at 63.)

7. As to the relationship between petitioner and respondent in Mexico, the Court finds that both parties' testimony was at times hyperbolic and does not credit the testimony of either petitioner or respondent in full.

8. According to petitioner's sister, in public, petitioner and respondent looked like a "normal couple . . . they [had] no problems, they look[ed] great." (Id. at 103.)

9. The Court does not credit petitioner's testimony that he and his wife had a perfect marriage in which they never disagreed or fought. (Id. at 41--42, 52.) Notwithstanding their public facade, petitioner and respondent experienced marital difficulties and sometimes had heated disagreements about whether the family should eventually relocate to the United States and other matters. (1/18/12 Tr. 15, 55--56.) Respondent wished to move to the United States with the children, but petitioner did not. (12/22/11 Tr. 20; 1/18/12 Tr. 43 ("[Respondent]: Discussions about me moving to the United States have always been, have always been present. It was never from the very beginning when I went to Mexico from the first time I met him[,] it was never my intention to stay in Mexico.").)

10. The parties presented starkly conflicting testimony as to incidents of domestic violence and allegedly disproportionate physical discipline of Paquito. Respondent testified that petitioner hit her and the children but that she never hit the children. (1/18/12 Tr. 31--32, 56.) Paquito testified that "[m]ore than once," his father "would hit [him] with a belt." (Id. at 83.) Petitioner testified that he never hit respondent or the children but that respondent sometimes hit the children. (12/22/11 Tr 64--65.) Because the Court's Conclusions of Law are not contingent on express findings as to intrafamily violence, the Court need not resolve the factual disputes and declines to make detailed findings of fact as to the extent or nature of such violence or whether corporal discipline the parents imposed on the children was appropriate.

11. Respondent was unhappy with the marriage and with the manner in which petitioner treated the children, and her desire to move to the United States increased in June and July 2010. (See 1/18/12 Tr. 15 ("I was tired of the abuse, I was tired of him treating me the way he was treating me and the kids and I told him that I no longer wanted to live in Mexico.").) She tried to leave the marriage on two occasions before the incident that gave rise to this action. (Id. at 55--56.)

12. Respondent never filed for divorce or for custody of the children in Mexico. (Id. at 50--51.)

A. Departure from Mexico and Events of July and August 2010

1. As of June 2010, respondent had recently reconnected with her biological father, Richard Buyauskas, who lived in Houston, Texas, after an extensive period during which they did not communicate. (Id. at 44.)

2. On about June 11, 2010, Richard Buyauskas purchased airline tickets for respondent, Paquito, Katie, and Chelsey. (Id. at 14; Continental Airlines Ticket Record, Pet'r's Ex. 1, at 1.) The airline tickets were for round-trip travel between Guadalajara, Mexico, and Houston, Texas. (Continental Airlines Ticket Record 1.) Respondent and the children were to leave Mexico on July 12, 2010, and to return to Mexico on Continental Airlines Flight Number 2910 on September 3, 2010. (Id.)

3. Petitioner believed that respondent was planning to travel to the United States with the children in July 2010 "[t]o visit her father, her new father, to travel here to Philadelphia to visit her mother, and to return to Mexico" ...


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