Case Update (2 April 2024): Garcia v. Jasso Posada; not demanding a child’s return in parental communication and paying child support is not acquiescence to an abduction
This case was before the U.S. District Court for the Northern District of Texas (Case No. 3:24cv360). On its face, this is a fairly typical request to return a minor child to Mexico from Texas using the Hague Abduction Convention. The two contested issues were whether the Father had a right of custody and whether he acquiesced subsequent to the child’s removal from Mexico.
The first legal question was whether the Father in Mexico retained a right of custody under the Aguascalientes, Mexico Civil Code. The court concluded that he did, in fact, retain a right of custody. While the Civil Code grants one parent (here, the Mother) custody, and the other parent (here, the Father) cohabitation (or perhaps what we call visitation), both parents retain parental authority, unless a divorce decree otherwise extinguishes that right. The parties’ divorce decree did not, so the Father retained a whole host of rights, including rights over the child’s property, a duty of care over the child, a right to a personal relationship with the child, a right that the child may not leave the home of one having parental authority, a duty to provide for the child’s education, a right to discipline the child, etc. He further had a “residence” right - in other words, both parties identified their respective domiciles in the divorce decree and were required to agree to any change in domicile and notify the court of the change in advance.
The second legal question was whether the Father acquiesced to the child’s removal to Texas. The Mother argued that the Father’s “frequent communication with [Mother] without demanding return of the child and continued payment of child support in the four-month period between removal and the filing of this case constitutes acquiescence.” The court disagreed with that argument. “This Court won’t hold that a left-behind parent’s continued act of providing child support payments for the benefit of the welfare of the child and in compliance with court orders is evidence of a subjective intent to acquiescence.” Further, the Father, when sending various communications to the Mother and to the child during the child’s time in Texas, the Father failed to repeatedly demand the child’s return. The Father argued that he was afraid that doing so would sever his communication with the child. The court refused to find that this action, particularly given the Father’s fear, amounted to acquiescence.
