Case Update (10 Dec 2025): Fuentes-Lopez v. Garcia; Child is settled in Nevada, and not returned to Mexico
The parties are parents to one 11-year-old daughter. On, or around August 1, 2022, after the Mother and Child had made their way from Tijuana, Mexico to Las Vegas, Nevada, the Mother filed a motion in the Mexican family court, seeking an “emergency move-away court order.” The date of the child’s actual physical removal from Mexico was July 2022, and the Father filed a petition under the Hague Abduction Convention in the district court in Nevada in May 2024, more than one year after the child’s removal, seeking her return to Mexico.
The two key issues that the court focused on are: whether the child’s habitual residence was the USA, not Mexico; and, whether the child was now settled.
For the habitual residence argument, the Mother argued that the child was habitually resident in the USA, not Mexico, because, while they resided in Mexico for almost four years, the child consistently traveled to California - Tijuana being a border town - for medical care, extracurricular activities, to shop, to go to parks, and to visit family. She also contended that both parents maintained employment in California. The court was not persuaded. The child attended a Montessori school located in Tijuana, had friends and classmates over to her house in Tijuana, and participated in extracurricular activities in Tijuana. Even though the Mother testified that the parties were only residing in Tijuana to save money to buy a home in California, the court concluded that for almost four years, the child went to sleep in her bed in her house in Mexico. This made the child’s habitual residence Mexico.
For the now settled argument, the Father argued that his petition was timely filed for a variety of reasons, including: that he filed a “Hague application” in a court in Mexico in May 2023, and that the Mother had been concealing the child since her removal, so the one year time limit was tolled. Again, neither argument persuaded the judge. ICARA, the U.S. implementing statute, requires that a Hague proceeding be commenced by filing a lawsuit in a court where the child is now sitting post-abduction. Further, the case of Lozano v. Alvarez resolved that the one-year is not a statute of limitations and cannot be tolled. While courts can consider a child’s concealment in determining whether the child is settled, it does not extend the one year timeframe for filing to avoid arguing this exception. Since the now settled argument could be put forth, the court looked at the various facts and determined the child was now settled in Nevada. The fact that the Mother moved a few times did not undermine this. Further, the court didn’t believe the child was actually concealed from the Father. In fact, the Mother’s fairly immediate court filing in Mexico, disclosing where she was residing, and seeking permission to remain there, was evidence enough. The court, further, in a footnote, addressed the presumptive argument that the Father may have raised his Hague return request in the Mother’s Nevada state court filing earlier - but the court reviewed those filings and didn’t find any of the assertions to constitute a Hague Convention argument to return the child.
One issue not fully fleshed out in the opinion is something that both parties referred to as the “Arriago order.” This Mexican court order, issued in October 2022, apparently restrained the Mother from “leaving the jurisdiction of the court unless respondent [Mother] provides an attorney-in-fact sufficiently informed and financially able to respond to the court orders.” The Father argued this is a clear ne exeat - it prohibits the Mother and child from leaving the jurisdiction. The Mother, however, argued that she has an attorney in fact, so the order should be read as her being permitted to leave the jurisdiction (with the child, presumably). This argument was debated when determining whether the Father had a right of custody. The court fairly quickly stated, “I find that the effect of the Arriago order has limited relevance here” and left it at that.
The court therefore concluded the child was now settled, and refused to exercise its discretion to return her to Mexico.
