Case Update (13 June 2024): Nolla v. Vargas; petitioner did not meet burden to establish case; Abduction Convention cases are not jurisdiction cases

The district court spent the first several pages of its June 13th order articulating why the proceeding, filed under the Hague Abduction Convention, did not proceed expeditiously. The petitioner father had filed his verified petition to return the parties’ child to Mexico on October 18, 2022. Ultimately, the evidentiary hearing was held on April 29, 2024. The court outlined several status hearings, problems with discovery, extensive witness lists that needed to be pared down, the difficulty or inability to find foreign language interpreters, the parties’ lack of collaboration and stipulations on exhibits and witnesses, various motions in limine and motions to amend/correct pleadings, the failure to deposit money into the court clerk’s registry to cover the cost of interpreters, the lack of enough interpreters for the length of the proposed trial, among other things.

During the eventual evidentiary hearing, the court was concerned about the volume of exhibits handed to the court that were not “discussed at the hearing to determine whether those documents had some bearing on the issues in contention.” The judge also allotted one week only to conclude trial. By the Thursday of their one week, the respondent had not yet presented evidence on her exceptions to return, but for a few Zoom witnesses and some stipulations. Further, during the trial, there were cross-arguments on how the trial was to proceed and the evidence was to be presented. The court actually went back to the transcript, and advised everyone that “this type of miscommunication had been symptomatic of the litigation, with the parties failing to communicate with each other, talking past each other and reading into the court’s rulings statements that the court has not made.” The week ended and the respondent had not yet presented all of her evidence on her exceptions.

The actual evidence showed that the parties had divergent views on where they were going to settle: Mexico or the USA. Certain facts were un-refuted, however: the child at issue was born on September 28, 2016 in Wisconsin, the petitioner was listed as the child’s father on the birth certificate, and on July 31, 2017, the parties filed a petition for the respondent to become a U.S. permanent resident. Their child attended church and had a social network in Wisconsin, and engaged in testing for a potential autism diagnosis and placement in school. At some point, the parties began talking about a potential move south, with respondent indicating that they discussed Texas as an option. In April 2021, the family traveled to Mexico. The parties disagreed as to when they planned (if they planned) to return to Mexico. Respondent credibly testified that she thought of this trip as a vacation to Mexico. She said that they were going to stay in Mexico while the child’s Wisconsin classes were still online (due to COVID), and then she believed they would move to Texas when in-person classes resumed.

The respondent ultimately left Mexico on or around August 14, 2021, without telling the petitioner. Respondent confirmed that she was not returning by text to petitioner on August 18, 2021. On September 2, 2021, the petitioner filed a criminal complaint for kidnapping in Mexico. On September 8, 2021, the petitioner filed for divorce in Mexico. Petitioner filed his petition for return in the district court on October 18, 2022. There were also simultaneous custody cases filed in Wisconsin and Mexico, with direct judicial communication to resolve custody jurisdiction, which appears to have resulted in the case being taken up in Mexico, with no custody determination as of the date of the Hague trial.

At trial, the petitioner argued that the abduction occurred in December 2021 (as opposed to August 2021), and was, in fact a wrongful retention (not removal). However, the evidence did not support this argument. “The petitioner’s own words and actions establish that he knew that the respondent had left Mexico with [the child] in August of 2021 (as he confirmed in the August 18, 2021 text that he sent to the respondent). “ The petitioner then argued that filing his Hague Convention return application with the Mexican Central Authority in or around August 2022 commenced the proceedings and “tolled the time for filing his petition with this court.” Separate from the lack of evidence showing that an application was filed with the CA, Lozano v. Alvarez settled that there is no such tolling, and ICARA specifically indicates that commencing an action is by filing a lawsuit, not an application with a Central Authority.

Separately, the court found that petitioner did not establish his prima facie case that Mexico was the child’s habitual residence. “Most of the petitioner’s testimony and evidence focused on his insistence that he and the respondent shared an intent to relocate to Mexico.” But the court found this problematic, because (1) an actual agreement is not required to determine habitual residence, and (2) “the evidence … does not support a finding of shared or settled intent (or agreement) for the parties to permanently move to Mexico.” Separately, “… the petitioner’s attorney argued that he would show the petitioner was ‘entitled to parenting time under Mexican law.’ That prediction never came to pass.” “He presented no evidence about any custody law. He never cited a judicial or administrative decision regarding custody rights that was in place immediately before the August 2021 removal.” Therefore, the petitioner did not prove either habitual residence or rights of custody.

Separately, referring to competing custody cases in Mexico and Wisconsin, “the petitioner’s attorney argued that ‘[c]learly Mexico has already made the finding and the determination that the custody rights of parties should be determined in Mexico, and the United States court agrees.’” But, the district court noted, “[t]he Hague Convention does not resolve international custody disputes. … The Convention does not ‘contain rules for resolving competing claims of jurisdiction in international custody struggles or procedures for obtaining recognition and enforcement of foreign judgments or orders governing child custody.’” The district court further noted that the “Hague Convention is not a ‘jurisdiction allocation or full-faith and-credit treaty…”. [NB: this statement is critical - many courts conflate custody jurisdiction and the Hague Abduction Convention, arguing that the HAC fixes jurisdiction for the custody suit, which is not correct]

The petitioner did not meet his burden to prove his prima facie case. The court found that Mexico was not the habitual residence and that the petitioner presented no evidence that he had a right of custody under Mexican law (even if Mexico were the habitual residence). The court did not even analyze whether the child was now settled in Wisconsin since petitioner did not prove his prima facie case.