Case Update (15 July 2026): Mariduena v. Jativa; children would be exposed to psychological harm if returned to Ecuador

The parties are the unmarried parents of two children, ages 8 and 5. Both parties have other children, not of this relationship. The parties met and had a relationship in Ecuador, and all children were born in and lived in Ecuador. Their relationship was punctuated by significant conflict. In May 2021 - May 2022, the Respondent Mother left the children in Ecuador, in the care of her Mother (“Grandmother”) and the Petitioner Father while she went to Spain and then the United States to look for work. In April 2022, the Petitioner Father filed a request for protective measures in Ecuador, and requested custody of the children on a provisional basis. This request was granted in June 2022, and when Respondent Mother appealed to a different tribunal, they denied her appeal and deferred her back to the original tribunal, in part because the original protective measures were temporary and could be “replaced, modified or revoked by the authority that imposed it…” After one month back in Ecuador, the Mother returned to Spain and then to the United States. In November 2023, the parents made plans for Father and the children to join the Mother in the United States. The Mother sent funds for the trip and set up transportation with coyotes. The Petitioner Father understood this to be to re-establish their family. However, after the Father and children arrived in South Carolina, the conflict persisted. A few days after their arrival, and after what was a physical altercation between the parties, Mother and children fled the home through a bedroom window, filed a police report (but no arrest was made after determining “she was not being truthful”), and then relocated to North Carolina. Several months later, after looking for the Mother and children, Father went to New York, but, in July 2024, suffered a stroke. When he was discharged from the hospital, he returned to Ecuador. He filed a petition with the U.S. District Court for the Western District of North Carolina to seek the children’s return to Ecuador using the Hague Abduction Convention. Also, between March and April 2026, the Mother was picked up by federal immigration authorities, detained in Georgia, but released. She and the children remain in immigration proceedings.

The two legal issues addressed by the court were whether Ecuador was the children’s habitual residence and whether returning the children to Ecuador would expose them to a grave risk of harm. The court concluded that on or about February 2024, a few days after he arrived to the United States with the children, when the Mother fled with them out a bedroom window, she had abducted them. Given the very short timeframe in which the children were in the United States, the court found they could not have acclimatized to the United States, and that Ecuador was still their habitual residence. The District Court cited to Monasky but once, and therefore didn’t focus on a more holistic view of habitual residence. In other words, the court didn’t look at the parents’ intentions for where the children would reside. Of course, if the court had looked at this, they may have discussed whether the children’s presence in the United States was conditioned on the family residing together, or whether the alleged domestic violence had an impact on this issue. Regardless, the court addressed grave risk, and did conclude that while the children would not be exposed to physical harm if returned, they would be exposed to psychological harm. Based on the testimony, which the court noted was less than credible from both parties, the children had apparently observed significant violence between their parents, including physical violence, sexual violence, and threats of harm and/or death. The Mother presented a medical professional who had interviewed the children and made an evaluation of their mental health, believing they would be at “significant risk” of psychological harm due to the “severity and chronicity of the abuse” they witnessed.

The legal opinion does reference an existing temporary custody order in Ecuador that apparently places the children in the Father’s custody. There was no mention, however, of any other court case filed in North Carolina in that regard.