United States District Court, W.D. North Carolina, Charlotte Division
J. Conrad, Jr. United States District Judge.
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).
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
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).
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
3. All parties have been correctly designated.
4. There is no question as to misjoinder or non-joinder of
5. V.S.G.M. (the “Child”) was born on January 29,
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
(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).
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.
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).
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 ...