Case Update (24 March 2026): Sotela de Avila v. Arriaga Gutierrez; Parent moved child to USA for 3-year agreed term, and then retained child; habitual residence did not shift

Before summarizing this recent Hague Abduction Convention case, this blog wants to note the Court’s reference to the “Hague Convention” to ensure clarity to those who are reading this blog. The court’s opinion refers to this international treaty as the “United Nations Hague Convention on the Civil Aspects of International Child Abduction” and this is categorically incorrect. The United Nations did not have any part in this treaty. The Hague Conference on Private International Law is the organization whose Members States adopted this treaty in 1980. This incorrect reference does not impact the legal analysis of the Court.

This case is about a 7-year-old Mexican citizen child, born in Mexico to two Mexican citizen parents. When the child was about two years old, their parents separated, but the child continued residing in Mexico. When the parents divorced, they agreed to “various custody terms.” Specifically, the Respondent Parent was granted physical custody, and the Petitioner Parent had visitation. Both parties retained patria postestas (parental rights). In May 2022, the Respondent requested to temporarily relocate the child to the USA for three years, which corresponded to her new Husband’s temporary secondment. The Petitioner agreed to this temporary relocation based on: (1) it being only three years, and the child would permanently return in May 2025, (2) that he be allowed video calls with the child, and (3) the Respondent would return home to Mexico with the child once every three months. On May 18, 2022, the parties signed an authorization for the child to temporarily relocate for May 2022-May 2025. In March 2025, the Respondent informed Petitioner that they would not be returning to Mexico as planned. In June 2025, the Petitioner filed an application for the child’s return with the Mexican Central Authority. Since May 2025, the parties have engaged in legal proceedings in the Mexican Family Courts.

At trial, one of the key debates was whether, in May 2025, the child’s retention in the USA was wrongful. In other words, did the USA become the child’s habitual residence so that in May 2025, retaining the child in the USA could not be considered wrongful. The court focused heavily on the temporary nature of the child’s relocation to the USA, that the child had been back to Mexico five times during that “temporary” relocation, and that there was no further discussion that would unravel the temporary nature of the child’s stay in the USA until March 2025. It was in March 2025, that the Respondent notified Petitioner of her intention to remain in the USA, and requested that he renew the child’s travel authorization. He refused to do so. He also would not agree to amend the temporary relocation agreement. The Court, following its Fifth Circuit precedent, focused a bit on the child’s temporary visa status - the child is a dependent on their step-father’s short-term (3-year) visa. The child further has “established family ties” in Mexico that they “maintained” during the temporary relocation. The fact that the Respondent “and her family have applied for Lawful Permanent Residence status does not alter the habitual residence analysis where the unilateral filing of an LPR application well after May 2025 (especially one that has yet to be approved) does not retroactively justify a retention that is otherwise wrongful”. The Respondent further argued that because custody proceedings are ongoing in Mexico, there is “no international legal void that requires the Convention’s intervention”, presumably because the court with jurisdiction is proceeding to resolve the parents’ custody dispute. The court was not persuaded by this argument however, because the Hague Abduction return petition in the U.S. District Court and the Mexican child custody proceedings are distinct proceedings with different purposes.

The court, finding that the Respondent did not meet her burden to demonstrate any exception, ordered the child returned to Mexico.