Case Update (20 Dec 2024): Aguirre v. Villatoro; child who had lived most of his life in Virginia was now settled and not returned to Honduras

This case is a fairly straight-forward Hague Abduction Convention case. The parties’ child was born in Honduras in December 2015. In November/December 2018, the child’s Father took the child from Honduras, traveled through Guatemala and Mexico and crossed on foot into the United States. The child was 3-years-old at the time. The Father and child made their way to Virginia where the Father had family. It was clear that the Father did not have the Mother’s permission to take the child. The Mother first spoke to the child in March 2019, where she begged for the child’s return, but the Respondent Father refused. In June 2019, the Mother attempted to cross into the United States to reunite with the child, but she was intercepted at the border. In Summer 2019, the Father began a romantic relationship with another woman, with whom he ultimately lived, intends to marry, and who, for all intents and purposes, helped parent the subject child, alongside her child from a prior relationship and her other child with the Respondent Father. The child was in school, doing well, engaged in extracurriculars, and had a stable life in Virginia. In 2020, the Father filed a petition for custody in the Juvenile & Domestic Relations Court in Prince William County Virginia. On June 8, 2020, the Petitioner Mother filed an application for the child’s return with the Central Authority, filing a petition in the District Court in January 2022. It was now over 3 years after the child’s removal from Honduras. About two months later, in March 2022, the Mother filed a Stipulation of Dismissal of her Hague petition, ultimately refiling about one year later, on March 7, 2023. The court noted that during the pendency of the case, it issued two separate show cause orders due to the Petitioner Mother’s delays and failure to prosecute the case.

The court concluded that the Mother demonstrated, by a preponderance of the evidence, that the child was wrongfully removed from Honduras in or about November/December 2018. However, the court also concluded that the child was now settled in the United States. The court found the evidence of settlement overwhelming. The child had, after all, lived most of his life in Virginia. The court penned a few specific comments about the Father’s and Child’s immigration status. Neither the Father nor child are U.S. citizens or green card holders, and, when questioned about his immigration status, “Respondent testified that he ‘doesn’t have any orders’ and ‘doesn’t have any problems’ and that he and [the child] have social security numbers and Respondent has work authorization.” The court noted that it found this to be cause for concern, but, “a lack of immigration status” is not “a bar to finding that a child is settled.” The child has significant connections that demonstrate his “security, stability, and permanency” in the United States. He is, in fact, thriving and is part of a close-knit family/household.

Finally, the court did address its discretion to return a child, nonetheless. The court noted its concern with the fact that the Father had not told the child of the Mother’s existence, letting the child believe his new fiance’ was the child’s mother. The court was also troubled by the Mother’s failure to consistently seek the return of the child four-and-a-half years since his removal. Overall, the court concluded it would deny the Mother’s request to return the child. It would be too harmful or disruptive to the child otherwise.

The Mother has also requested access to the child as alternative relief, under the Hague Abduction Convention. The court, in citing Cantor v. Cohen (442 F.3d 196 (2006)), noted that federal courts have no jurisdiction over access claims. In other words, the Mother would need to seek relief in the J&DR court action that the Father had started, and presumably concluded, in Prince William County.