Case Update (8 May 2024): Brito Guevara & Guevara Flores v. Francisco Castro; five-year-old was now settled in Dallas, Texas area
Petitioners, a Father and Paternal Grandmother, petitioned for the return of a minor child, five-years-old at the time of trial, from Texas to Venezuela pursuant to the Hague Abduction Convention. The parties, through counsel, stipulated to a list of facts, the most salient of which are that, in August 2021, the Father moved from Venezuela to Spain and has not been back to Venezuela since that move, and that on November 27, 2021, the Mother and child left Venezuela, presenting themselves to the U.S. Border Patrol in San Luis, Arizona several days later. The parties also stipulated that from the date of the child’s birth until July 19, 2019, the Father, Mother, and child resided with Petitioner Grandmother in her home in Venezuela. Since relocating the minor child to Texas in late 2021, the child, Mother, and Mother’s significant other resided at an address in Lewisville and then in Dallas. These are the only two addresses at which they resided over the course of over two years of being in the USA.
The parties stipulated to enough facts that demonstrated that Father met his burden to prove a prima facie case of return under the Abduction Convention. As to the Paternal Grandmother, the Court concluded that she could not prove that she had a right of custody under the law of Venezuela. No party “put forth evidence of a formal custody agreement” and “[u]nder Venezuelan law, grandparents are not given rights of custody, nor has Petitioner [Father] or [Mother] relinquished their custody rights. Therefore, in order for Petitioner [Grandmother] to have rights of custody over [the child], one of the special circumstances awarding a third-party custody would have to apply.” Grandmother pointed to “a few different judicial rulings to support” her argument that she had a right of custody over the child, including the “Protective Measure of Family Placement” granted to her a month after the child’s removal from Venezuela and a power of attorney signed by the Father to make decisions on behalf of the child, including travel authorizations (unfortunately, which was only submitted to the court in Spanish, with no English translation). She also presented a “Certificate from the Council for Protection of Children and Adolescents in Venezuela” that stated that the Mother had no authority to “undertake any journey inside or outside of "[Venezuela]”. The court noted the salient point in time to find a right of custody was on the date of the child’s removal (or immediately before) - November 27, 2021. It found that no evidence submitted to the court demonstrated that the Grandmother had a right of custody.
With regard to the remaining Petitioner - Father - the Respondent argued three exceptions to the child’s return: that the Father consented to the removal, that returning the child to a place (Venezuela) where no one with a right of custody resided would place the child in an “intolerable situation”, and that the child is now settled with the Father having filed his petition for return more than a year after the child’s removal from Venezuela. The court found that Respondent Mother proved the final of these three exceptions. Respondent was unable to demonstrate consent and did not submit sufficient evidence to demonstrate a clear and convincing threshold for an intolerable situation. But, it was clear that the Petitioner Father filed this proceeding more than one year after the child’s removal, and the balance of the various factors overwhelmingly weighed in favor of the child now being settled in Texas.
