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Garcia Flores v. Morales Alvarado

United States District Court, W.D. North Carolina, Charlotte Division

August 3, 2018



          Robert J. Conrad, Jr. United States District Judge.

         THIS MATTER comes before the Court on Rafael Flores' Complaint Petitioning for the Return of a Minor Child Under the Hague Convention, (Doc. No. 1). The Court held an Evidentiary Hearing on April 12, 2018. At that hearing, the Court found that Petitioner established by preponderance of the evidence a prima facie case warranting the return of V.S.G.M., a minor (“the Child”), to El Salvador pursuant to the Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act. Respondent failed to establish by clear and convincing evidence an affirmative defense proving a grave risk of harm to V.S.G.M. The Court ordered both parties to confer with each other and attempt to resolve the details of V.S.G.M.'s return to El Salvador. In the meantime, Respondent was prohibited from removing V.S.G.M. from the jurisdiction of this Court. The parties have since presented the Court with a status report detailing the Child's travel arrangements. (Doc. No. 28).

         I. BACKGROUND

         A. Procedural Background

         On August 25, 2017, Rafael Antonio Garcia Flores (“Petitioner”) filed his Complaint Petitioning for the Return of a Minor Child Under The Convention on the Civil Aspects of International Child Abduction (“Hague Convention”). (Doc. No. 1). On October 23, 2018, Yoselin Yessenia Morales Alvarado filed a Motion to Dismiss for Failure to State a Claim, (Doc. No. 8), which the Magistrate Judge recommended this Court deny in his Memorandum and Recommendation (“M&R”), (Doc. No. 10). In his M&R, the Magistrate Judge recognized a narrow exception to the Hague Convention under Article 13(b), which “allows a court to deny return of a child to the habitual residence if ‘there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.'” (Id. at 4). The Magistrate Judge then concluded that “Petitioner has properly pled a claim under the Hague Convention” and that “Respondent's affirmative defense that the Child is in ‘grave risk' must be resolved at an evidentiary hearing to determine the rights of the parties under the Hague Convention.” (Id.). The Court adopted the Magistrate Judge's recommendation, (Doc. No. 21), having previously set an evidentiary hearing for April 12, 2017. At the hearing, Respondent testified in person while Petitioner testified remotely via video conference.[1]

         B. Factual Background

         Petitioner and Respondent married in El Salvador in December of 2012. (Doc. No. 1 ¶ 14). In 2013, Respondent gave birth to a child in San Salvador, El Salvador. (Id. ¶ 15). As Petitioner tells it, he lived with Respondent and Child in a familial residence in El Salvador until Respondent left with the Child in January of 2017. (Id. ¶16). When Respondent left, she originally told Petitioner that she and the Child were going to stay with her aunts for a week in La Union, El Salvador. (Id. ¶ 18). The truth, however, was that Respondent took the Child to the United States after disconnecting her cell phone. (Id. ¶¶ 19-20). Petitioner found out Respondent's location after receiving a video showing her crossing the United States border with the Child. (Id. ¶ 20). Petitioner promptly filed an abduction report to the local authorities. (Id. ¶ 21). Petition has spoken to Respondent approximately four time before she broke off communication. (Id. ¶ 23). Petitioner and Respondent remain married today and no court in either El Salvador or the United States has entered an order regarding custody. (Id. ¶ 23-25).

         Respondent, in her Motion to Dismiss, emphasized the fact that no custody order awarded Petitioner custody over the minor child. (Doc. No. 8 at 1). Therefore, Respondent argues that Petitioner cannot prove a “breach of rights of custody” under the Hague Convention. (Id. at 2). Respondent also alludes to a claim in North Carolina State Court where she seeks custody over her child. (Id. at 3). In that case, Respondent alleges Petitioner uses illegal drugs and engaged in abusive behavior. (Id.). It is this behavior, Respondent argues, that creates a grave risk of harm warranting this Court to find in her favor and keep her child in the United States. Prior to the hearing, the Parties have stipulated to the following facts:

1. All parties are properly before the court.
2. The Court has jurisdiction of the parties and of the subject matter.
3. All parties have been correctly designated.
4. There is no question as to misjoinder or non-joinder of parties.
5. V.S.G.M. (the “Child”) was born on January 29, 2013.
6. Petitioner Rafael Antonio Garcia Flores is the Child's father as is noted on the Child's birth certificate.
7. The Child is under sixteen years of age.
8. The Child was removed from El Salvador to the United States on or about on or about January 8, 2017.
9. The Petitioner filed this petition on August 25, 2017, which is within one year of the Child's removal from El Salvador.

(Doc. No. 18). At the hearing, the parties also stipulated that the Minor's habitual residence is in El Salvador. (Transcript of Evidentiary Hearing (“T.”) at 9).


         The Hague Convention aims to “protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.” Hague Convention, Art. 1. Accordingly, the Convention secures the prompt return of children wrongfully removed to or retained in another Contracting State. Id. The United States has signed the Convention as a Contracting State and subsequently codified its obligations in the International Child Abduction Remedies Act, 22 U.S.C. §§ 9001, et seq.[2]

         The Court's duties do not involve the substantive underlying custody battle between Petitioner and Respondent. Rather, the Court is simply charged with the jurisdictional inquiry of what country should determine the custody over a minor. The general rule is that a child must be returned to the country of their habitual residence. Accordingly, the issue can be reframed as, “whether the child has been wrongfully removed or retained from his or her habitual residence.” Salguero v. Argueta, 256 F.Supp.3d 630, 635 (E.D. N.C. 2017).

         The Hague Convention does not define “habitual residence.” Id. However, the parties have stipulated that the Child's habitual residence is in El Salvador. (T. 9). Even so, determining the venue of the Child's custody determination takes the form of a two-step process. First, Petitioner ...

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