Case Update (12 April 2022): Munoz v. Diaz; clear and convincing evidence burden was not met to prove a grave risk of harm

The parties are parents to two children. Both parents and both children are Mexican nationals, and had been residing in Mexico until the Mother removed the children from Mexico and settled them in Georgia with her new husband. The parties were previously divorced, and had signed an agreement that gave the Father three weekends every month with the children, although he routinely took more time with the children, and had spent over a month with them in early 2020 while Mother traveled to the USA to marry her new husband.

At trial, the Mother alleged an Article 13(b) exception to the children's return, arguing domestic violence. Her testimony was, however, unclear. Her witnesses didn't corroborate any violence first hand, and some of the violence seemed to indicate the Mother either started the violence or was a participant in it. Past litigation related to allegations of domestic violence did not result in any limitations on the Father spending time with the children, and subsequent to the Mother's claims that Father was abusive, the parents reached an agreement where he undertook parenting duties, routine access to the children, and co-parenting with the Mother. Mother further called a clinical social worker as an expert. The expert diagnosed the children with PTSD, but had only had three 30-minute sessions with the children, through interpreters. Further, the children had not disclosed any violence against them from their Father, and much of her testimony seemed to relate to the expert's own personal biases against Mexico. The Court overall found Mother un-credible. She made no allegation that the Father was violent against the Children, and she only recently, after being served with this Hague Abduction petition, filed a domestic violence action against the Father and sought counseling for the children. Her timing indicated to the court that she was trying to support a grave risk argument or exert leverage over the Father to withdraw his petition.

The Court concluded that the Mother was unable to establish, by clear and convincing evidence, that returning the children would expose them to a grave risk of harm. It was clear she left Mexico for the USA because her new husband got a job in the USA. There was no testimony that the Father had ever harmed the children. Further, the family brawl to which the Mother testified at trial, was admittedly started by her. Her use of a recent report of uncorroborated threats was timed just after she was served with process in this case, making those claims suspect.