Case Update (27 June 2024): Staggers v. Timmerman; ne exeat provision in a consent protective order was acquiescence to the child remaining in Iowa under the Abduction Convention

This Abduction Convention case involves another highly mobile child, who the Respondent Mother refers to as a “nomad.” The child was born in Georgia in 2017, then moved to Florida, Mexico, Iowa, a different city in Florida, Louisiana, and then back to Florida in August 2022. In March 2023, the family moved into a condo in Mexico City, Mexico. They left in June 2023, and signed a 3-year lease for an apartment in Mexico City. In November 2023, Respondent and child left Mexico for Iowa. Later that month, the parties entered into a consent domestic violence protective order in Iowa. Among the terms of their consent order was a statement that “[t]he parties’ minor child shall remain in the State of Iowa pending further order from a court concerning the ongoing custody dispute.”

At trial, the Petitioner testified to a volatile relationship where both parties became physical with the other. He also testified that the Respondent had an alcohol problem. During a work trip in 2023, when he could not reach the child for a bedtime call, he turned on security cameras in the home and testified that he overheard a conversation between Respondent and her stepmother that caused concern. He went to travel back to Mexico, when he learned that the Respondent and child were in the United States. He hired counsel in Iowa after learning of the emergency protective order, and he filed his request to return the child using the Abduction Convention the day after consenting to the protective order in Iowa. Petitioner testified that the family had all applied for 1-year residency permits, and after that one year, they could apply for 3-year residency, which he has done, and all had intended to do. Otherwise, his financial institutions, PO Box, and work are in the United States. He files U.S. taxes, and he owns no car in Mexico because he does not need one. Respondent testified that neither she nor the child speak Spanish, she only pays taxes in the U.S., and her drivers license is in Iowa. She testified that they signed a 3-year lease in Mexico because it was “the best value” and she anticipated that they would break it if they wanted to move. She testified that nowhere the family has ever lived has been “permanent” based on their 8-year relationship, and she did not believe they were staying in Mexico long term. Respondent testified about the physical altercations, and that she did not feel safe. Respondent testified that she is not an alcoholic, has used recreational marijuana in the past, and does not use cocaine “to the extent” that the Petitioner does. She testified that he does cocaine, marijuana, and drank large amounts of alcohol.

A clinical psychologist conducted an evaluation and concluded that the relationship between the parties contained “coercive controlling domestic violence” with the Petitioner as the perpetrator and the Respondent and child as the victims of the violence. As part of the opinion, the expert concluded that the child was present when the violence against Respondent occurred and saw the Respondent injured. The expert also concluded that the child was a victim of the Petitioner’s domestic violence, referring to admissions by Petitioner to hitting the child, and using words like “she deserved it” or “he was going to teach her a lesson”. The expert concluded that either “physical abuse or psychological abuse would be promulgated on [the child] in the future, and consequently, [the child] would be subject to grave risk if she were returned to Mexico.” Respondent also had a retired Iowa Judge testify, who analyzed the domestic violence protective order matter filed in Iowa, and concluded that the consent order “constituted a showing that both [parties] agreed that any future child custody proceedings would be continued in the state of Iowa.”

The District Court concluded that the Petitioner did not prove, by a preponderance of the evidence, that Mexico was the child’s habitual residence. The child had lived most of her life in the United States, not Mexico; was fluent in English and not Spanish; had all of her extended family in the United States including siblings; the Petitioner’s business, which is the sole source of income for the family, is in the United States; and Petitioner travels to the U.S. for significant periods of time while the child had been in Mexico City. The parties maintained their bank accounts and lines of credit in the U.S., and paid taxes in the U.S. Neither party applied for or obtained employment in Mexico. The Petitioner maintains a PO Box in the U.S., and uses that address for credit cards. While the parties had a 3-year lease on their Mexican apartment, the family moved frequently, and that supports the Respondent’s belief that the family would not be staying in Mexico for an extended period of time.

The District Court also concluded that Respondent proved, by a preponderance of the evidence, that Petitioner acquiesced to the child’s retention in the United States by knowingly, voluntarily, and willingly agreeing to the entry of the Iowa state protective order that provides for the minor child to remain in the State of Iowa. The court discounted the Petitioner’s argument that the protective order was merely a provisional measure, much like those permitted under the Abduction Convention to preclude the further removal of the child from the jurisdiction pending the proceedings.

Finally, the District Court concluded that returning the minor child to Mexico would expose the child to a grave risk of harm. The court found that Petitioner was physically abusive of Respondent in the presence of the child, and the grave risk was supported by the testimony of the expert psychologist.

The Magistrate recommended not returning the minor child to Mexico.