Case Update (29 July 2024): Toth v. Toth-Ledesma; grandparents ordered to return child to parents in Mexico under Abduction Convention
Two parents are seeking the return of their child to Mexico using the Hague Abduction Convention. The child was born in Mexico in 2020, and is currently residing with their paternal grandparents in Pennsylvania. The grandparents oppose the return, and argue that it would expose the child to a grave risk of harm, if returned. In September 2021, the paternal grandparents visited the family in Mexico, and testified that, “during that trip, [paternal grandmother] observed ‘constant drug use [and] paraphernalia all over the place[,]’ including use by Father, Mother and [the child’s] uncle”. The child was age 11 months at the time of this trip, and there is no evidence that the grandparents contacted authorities or otherwise intervened after observing drugs. In February 2022, the Father was apparently in an altercation with a security guard at a store in Mexico, which resulted in his arrest, and for which he ultimately resolved by agreeing to pay the guard reparations.
The grandmother offered to bring the child at issue (but not the younger sibling) to the USA, and, the Mother and Father executed a September 2, 2022 document that permitted the child at issue to travel from Mexico to the USA to reside with the paternal grandmother in Pennsylvania and be under her care for one year. The parties exchanged the child in Mexico on September 15, 2022 at a hotel. Upon arriving in Pennsylvania, the grandmother testified that the child required hospital treatment, was sick, was covered in cuts, bruises, and scars. Despite a verbal agreement that the child would maintain video calls with the parties in Mexico while in PA, the Father had not been permitted to communicate with the child. The parties exchanged certain text messages while the child was in PA. In October 2022, there was a text message, which father alleged is fabricated, threatening to kill the paternal grandmother if the child were not returned. The Mother claimed she began frequently requesting the child’s return at the end of October 2022. This apparently resulted in the grandmother calling the Mother less often and “behaving strangely”. In January 2023, the Mother opened an investigation in Mexico related to child abduction. On November 13, 2023, a Mexican judge entered an order for the location and presentation of the child by Mexican authorities.
At trial, the Grandmother accused the Father of physical abusing the Mother in Mexico after the child was in Pennsylvania. The grandparents sought a protection from abuse order in Pennsylvania from the Father, and also filed a custody complaint on January 9, 2023. Around this time, Father traveled to Pennsylvania to retrieve the child, and ultimately went to the grandparents’ lawyers’ office looking for them. He kicked a glass door at the office, which shattered, charges were brought against him, and he ended up in jail in Pennsylvania from about February 2023 until September 2023, at which time he then returned to Mexico. He failed to appear at a criminal hearing in November 2023 in Pennsylvania, and a bench warrant was issued. His recent U.S. passport application was therefore denied.
During trial, the court appeared to give little weight to the parties’ testimony, but took the text messages between them at face value, which seemed to indicate some drug use by the parents, some potential for violent behavior, and certain behaviors by the grandparents keeping the Mother from maintaining contact with the child. The court also noted that the grandparents did not intervene while they were in Mexico in 2021 or 2022, and did not bring the younger child to the USA. The court noted that there was no photographic evidence of the child’s condition, no expert testimony about the alleged abuse of the child, no CPS reports, and only text messages that indicate physical discipline as a possible explanation.
The court found that the grandparents did not demonstrate, through clear and convincing evidence, that the child would be exposed to a grave risk of harm if returned to Mexico. The Father had bragged about physical discipline in text message, but there is no evidence that this actually occurred on a regular basis. The grandmother’s testimony alone in this case is insufficient. The parents denied any domestic violence between them. The paternal grandparents contacted no authorities to intervene when the child was residing with the parents, and they left the younger sibling in the parents’ care. While there were text messages about the Father’s drug use in the past, those texts stopped in September 2022, and there was no evidence of any drug use since that date. While the Father had two criminal charges - one in Mexico and one in Pennsylvania - neither of the acts that lead to these charges were directed at the child. There was further no evidence that supported a conclusion that Mexican authorities would not intervene to protect the children if circumstances warranted such intervention. The child was therefore ordered returned to Mexico.
The court, in trying to craft its order to return the child was hindered by the various legal proceedings. The Father could not enter the USA due to criminal charges and no passport. The Mother requires a visa or humanitarian parole. The grandparents would apparently be incarcerated if they entered Mexico based on criminal charges. The court therefore ordered that the status quo of the child with the paternal grandparents be maintained until a return order could be crafted. The parents were required to submit a proposed return order within 24 hours.
