Case Update (19 May 2025): Dominguez v. Ramirez; the impact of a pleading on a habitual residence determination

The parties in this case - Petitioner Father and Respondent Mother - were the parents of a child, born in Mexico in April 2018. In September 2020, the entire family traveled to Guatemala. The parents dispute whether that trip was short term (Father’s position) or long-term (Mother’s position). They did sell their belongings, including a refrigerator, in advance of leaving for Guatemala. The Father, upon the trip to Guatemala, began working in (or operating) a convenience store that was owned by the Mother’s parents. At some point, after expressing concerns over the conditions in Guatemala, the Father requested they return to Mexico. He testified that the Mother refused. In April 2021, the Father returned alone to Mexico. In July 2021, he filed an application under the Hague Abduction Convention with the Mexican Central Authority, seeking the child’s return from Guatemala to Mexico. In May 2022, the Guatemalan Office of the Attorney General conducted an unannounced visit to the Mother’s home in Guatemala, to investigate the Father’s claims of no clean drinking water, electricity, vaccinations, and proper clothing for the child. The Attorney General ultimately “recommended that the child ‘remain under the care and protection of her mother.’” The Father took no further legal action in the Hague matter, nor did he file a custody case. In December 2023, the Mother and Child moved from Guatemala to Tennessee. In January 2024, the Father filed an application for the return of the child to Mexico with the Mexican Central Authority again. He then filed this instant lawsuit on September 24, 2024.

In the Father’s pleading, he alleged that the Mother “wrongfully removed [the child] from Mexico”, that "[t]he Child was a habitual resident of Mexico” immediately prior to her wrongful removal and retention, and referenced the child’s wrongful retention in Guatemala as of 2021. In other words, the Father argued that the date of the wrongful retention was in 2021, first in Guatemala and now in the USA, and that the child’s habitual residence at the time of 2021, was in Mexico. The court concluded that the Father did not meet his burden to demonstrate that the child was habitually resident in Mexico at the time of the alleged wrongful retention/removal (2021), and therefore the Father could not make out his prima facie case. The court denied the child’s return to Mexico.

The court did state, in FN 4, that “Petitioner could have requested the child be returned to her state of habitual residence, which would leave open the possibility of return to a country other than Mexico if the requirements of the Hague Convention are satisfied. Petitioner’s request, however, is specifically that the court order the child returned to Mexico. Accordingly, the Court limits its review of the Petition to whether Mexico is the child’s habitual residence.” This ancillary comment seems to imply that the Court believed the father had an alternative argument - that the child was habitually resident in Guatemala as of the date of the child’s wrongful removal to Tennessee in 2023, and that the Father could seek the return of the child, not to the child’s habitual residence of Guatemala, but to a third country where the Father was now living, i.e., Mexico. It is unseen as to whether this might have been a more fruitful argument - the court stuck to the plain language of the pleading, where the Father plead Mexico as the habitual residence and a return to Mexico.