Case Update (18 Oct 2024): De La Torre v. Login; Respondent could not demonstrate grave risk, therefore child was ordered returned to Mexico
The parties are parents of one child, born in Mexico in 2018. The parties were never married, but lived together from the child’s birth until December 2021, at which time they separated, but lived near one another. On June 2, 2022, the Mexican courts entered a custody judgment, granting the parties joint custody of the child, and outlining a time-sharing schedule. It further ordered child support and put in place a ne exeat provision “wherein neither party is to take [the child] outside of the Country of Mexico without the written notarized consent of the other parent.” The Respondent Mother sought the Father’s permission, and the child’s passports, to take the child to Cancun in early August 2023. She apparently, instead of going to Cancun, traveled to California and took up residence with the child. The Father, in September 2023, alerted the Mexican authorities that he was unable to get in touch with the Respondent Mother, and an amber alert was issued. The Mexican authorities issued an arrest warrant for the Mother for her breach of the custody judgment, although the Prosecutor, at the Father’s request, issued a pardon on October 8, 2024. Upon arrival in California, the Respondent Mother sought a domestic violence restraining order on behalf of her and the child in the Superior Court. On September 13, 2024, the Superior Court denied her request, making a finding that the alleged domestic violence “did not occur” and further stating that the Respondent “was not forced into signing the Judgment in Mexico”, that the Petitioner Father “did not have any influence over the judiciary, the law enforcement and/or government in Mexico”, and that the Respondent “was not in fear” in Mexico.
The primary issue before the court is whether returning the minor child to Mexico would expose the child to a grave risk of harm or an intolerable situation. The federal court judge adopted the state court judge’s findings, and noted that both parties had testified in that proceeding. It also held 4 separate hearings and took evidence in this case. The Respondent’s two arguments were: (1) the child would be subject to abusive conditions in Mexico, and (2) the child would be exposed to psychological harm if separated from her mother to return to Mexico. As to the first of these two arguments, the Court concluded that the Mother did not meet her clear and convincing burden to demonstrate any abusive conditions. The court concluded that the Mother’s “allegations lack credibility”. As to the second argument, the Respondent cited to to the case of Tsarbopoulos v. Tsarbopoulos, but the court distinguished that case. In the case of Tsarbopoulos, the court had opined that the separation of the children from their mother would be an intolerable situation, but it reached that conclusion because of a concern of exacerbating a diagnosed psychological disorder and because the respondent had no resources to enable her to live in the home country, lacked language skills, and was quite likely unemployable. In this case, there is no evidence the child has been diagnosed with a long-term psychological disorder and the Respondent Mother has not demonstrated she would be unable to live in Mexico if so desired. She further did not present any evidence that the child would be subject to any type of abuse comparable to that suffered by the children in Tsarbopoulos.
