Case Update (24 May 2022): Aldaba v. Marta; Respondent did not meet his burden to demonstrate grave risk; children returned under Hague Abduction Convention

The U.S. District Court for the D. of Kansas issued its written order, following an oral ruling, that the parties' four minor children are to be returned to Mexico. Their mother had sole custody of the children pursuant to a Mexican decree, but in August 2021, their father removed them from Mexico and brought them to the United States. At the evidentiary hearing in May 2022, the father conceded that the mother met her burden of proof to establish that the children were wrongfully removed. He argued one exception - that returning the children presented a grave risk to them. He argued that the children had sustained physical abuse and neglect while with their mother, that Mexican authorities ignored his complaints about it, and that Ciudad Juarez, where the mother and children reside, is a dangerous city with high crime rates.

The father claimed that he made several complaints to law enforcement that the mother was leaving the children at home, unattended. The mother, however, explained that she did leave them alone for limited times while she went to the grocery store, where children were prohibited during COVID. The father also reported certain injuries to the children (bruising on one child's legs and, later, an injured hand of another child). He said that the prosecutor took no action. The mother admitted the injuries, but had explanations for how they occurred. The father claimed he filed a lawsuit against the mother in November 2020 because of his concerns, and the authorities' inaction. He claims that he received no reply from the judge in the suit. The father showed the court several photographs of the mother's house, showing dirty conditions. The mother admitted that they reflected her house, but explained that she was a single mother who did her best, and she worked to provide food and shelter. Finally, the father argued that their older son attempted suicide while with his mother. The mother admitted it, said she called the father during the attempt, said she was scared, and then sought psychological treatment for the child afterwards.

The mother's explanations were credible, and therefore the father was unable to prove by clear and convincing evidence that his concerns rose to the level of a grave risk. While it appears that the children's living conditions in Mexico with their mother were not "ideal," the grave risk exception is not intended to litigate questions about the children's best interests, which should be left to the custody court. Further, while the father argued that the Mexican authorities did nothing with regard to his complaints, the evidence demonstrated otherwise. He presented reports from the authorities, and there was evidence that they investigated the children's injuries, even having a doctor examine the children. Finally, the father's production of a State Department travel alert to "avoid" travel to Ciudad Juarez is insufficient to show that the children's return to Ciudad Juarez, where they had lived with their mother before, was likely to expose the children to a grave risk of harm.