Case Update (2020): Guerra v. Rodas; 1980 Hague Abduction Convention, Consent & Grave Risk not found; Return Stayed because of COVID-19
In the case of Guerra v. Rodas, (Case No. CIV-20-96-SLP), Plaintiff Mother sought the return of her minor child to Guatemala. The child was removed from Guatemala in March 2019 by the child’s biological Father. In May 2019, Plaintiff Mother reported the child’s removal to law enforcement and submitted a formal complaint. She followed this with an application to the Central Authority using the Hague Abduction Convention, and, then, in February 2020, filed the appropriate lawsuit in the U.S. District Court for the Western District of Oklahoma. The court hearing itself was continued several times, including for Defendant to find counsel, to appoint a Guardian Ad Litem for the child, and because of COVID-19. The trial was ultimately heard on June 1, 2020, with the Mother appearing remotely.
The judge found that the Plaintiff Mother met her burden to have the child returned to Guatemala, and then addressed two exceptions argued by the Father.
Father argued that the Mother consented to the minor child being relocated for a period of 3 years. The mother argued that she only consented to the child traveling to the United States for approximately 2 months (until the child’s May 2019 birthday). The Mother’s steps to initiate the Hague proceedings in May 2019, as well as the fact that the Father entered the United States illegally, coupled with the Father’s lack of detail or evidence to support his version, lead the court to believe that the Mother did not consent to anything more than a few month trip, at most.
The Father also argued that returning the child to Guatemala presented a grave risk of harm to the child because the Mother drank and was aggressive, had friends in gangs, and that leprosy and pneumonia were present in the area where they lived in Guatemala. His testimony and evidence did not meet the clear and convincing evidence burden that there was an actual grave risk of harm. These underlying issues can be addressed in an appropriate custody suit.
The court ultimately ordered the minor child returned to Guatemala, but further addressed the fact that travel into Guatemala is banned at this time because of COVID-19. The parties consented to staying the return order until the travel ban was lifted and international travel was “no longer deemed unsafe due to the pandemic.”
Plaintiff’s counsel was ordered to notify the court immediately upon the lifting of the travel ban and the parties were ordered to provide joint status updates on the 3rd day of each month. The court kept in place a restraining order keeping the minor child within the district until he is returned.
