Case Update (27 Aug 2026): Zavaleta v. Superior Court of San Diego; reliance on child’s undocumented status in habitual residence analysis
Petitioner sought the return of her daughter to Mexico using the Hague Abduction Convention. * The trial court declined to return the child, and Petitioner appealed to the Court of Appeal. Upon review, the Court of Appeal, in an unpublished opinion, agreed with Petitioner that the trial court erred in not returning the child.
The parties are parents to a daughter, born in Tijuana in 2018. The parties lived with the child in Tijuana, although they never married. The child was educated in Tijuana, received medical treatment there, and had a Mexican passport. Her Father obtained a Mexican permanent residency visa. He was a U.S. citizen, but did not seek to document the child as a U.S. citizen (although at trial, he seemingly testified to having consulted immigration counsel). He maintained his home in San Diego, but spent several days each week in Tijuana. He moved out of the family home in Tijuana in October 2023, after an argument, and began solely residing in San Diego. In November/December 2023, the Mother filed a custody and child support suit in the family court in Tijuana. The Father appeared in person, and filed an answer. The court provisionally ordered child support. On March 10, 2024, the Mother was arrested by California Border Patrol after illegal narcotics were found hidden in her vehicle. The child was turned over to her Father. Father requested legal custody from the Mother, who then mailed him a notarized document giving him “temporary custody” for “medical, dental and educational reasons … while I am in detention.” On May 28, 2024, the drug charges were dismissed, she was sentenced to time served for making a false statement to federal agents, and she was deported, with her tourist visa revoked, and being prohibited from entering the U.S. for 10 years.
Mother testified she begged the Father to return the child to Mexico, but there were delays because the Father was, allegedly, seeking U.S. citizenship and a U.S. passport for the child, which was taking significant time. She ultimately believed that the child would be returned to Mexico “at the latest when the school year ended in June 2025”. In June 2025, the child video called the Mother and told her that her bags were packed. On June 17, 2025, the Father told Mother that the child would not return to Tijuana. The Father testified, in court, to a much different story - claiming the Mother felt the child was better off in the United States and that there was no agreement the child would ever return to Tijuana. The court found that, as of June 17, 2025, the Father “had not taken any steps to establish” the child’s U.S. citizenship, and she remained undocumented.
At trial, the court pinpointed the date of retention as June 2025, and concluded that after 14 months of residing in the U.S., the U.S. had become the child’s habitual residence. The Mother appealed, arguing that the date of wrongful retention was August 2024, and the court’s habitual residence finding was wrong. The Court of Appeals agreed with the Mother on her second argument, finding that the facts were not supported by substantial evidence sufficient to conclude that the child’s residence in California was “sufficiently enduring to be deemed ‘habitual’”. The Court of Appeals questioned whether it should apply the clear error standard of review espoused in U.S. Supreme Court decision of Monasky v. Taglieri, or whether it should apply a California standard of review - a disputed factual issue must be affirmed if supported by substantial evidence. The CofA ultimately said it would reach the same conclusion regardless of the standard, so it never resolved that question. The CofA opined that one of the relevant factors, not given any weight, was the intentions of the parents, and, here, the parents entered “into a ‘clear’ agreement that [the Child’s] stay in the United States would be temporary, not definite or permanent. The contemplated stay was until June 2025 and even less time if [Father] obtained [the Child’s] U.S. citizenship.” This case is also unique in that Tijuana and San Diego are within commuting distance of each other, and the Father had already been going back and forth. Finally, the child remained undocumented, and her status was “decidedly unsettled, and indeed, precarious.” The CofA found this last issue to be an overriding consideration.
*This case was filed by the prosecutor’s office in the state court in San Diego County, California. California is the only state in the United States that has its own state Central Authority, separate from the U.S. Central Authority. It offers, as one of its services, the choice for a Left Behind Parent to avail themselves of the state prosecutor’s office to seek the return of their child in the state court where their child sits after an alleged abduction. No other U.S. state offers this. Furthermore, even in California, parties can hire private counsel, and pursue a private lawsuit, including in federal court, for the return of their children. Parents have also been successful in removing a case filed in state court to federal court, where the California Office of Attorney General and prosecutors’ office would not play a role.
