Case Update (12 Nov 2024): Moreno v. Escamilla; GALs interviews of 3 children and credibility determinations aid court in finding a grave risk of harm if they were returned to Mexico
The parties are parents to three children, who during the trial were ages 13, 11, and 8. The Petitioner Father sought the children’s return to Mexico pursuant to the Hague Abduction Convention. The Mother had previously abducted the children to the United States, and applied for asylum. As part of this case, and with the agreement of the parties, the Court appointed a Guardian Ad Litem, and tasked this person with interviewing all three children and providing a detailed report, including as to their credibility. The GAL, for all three children, reported that they witnessed, and/or overheard, violence between their parents, and all three referred to threats that they understood to mean that their Father was going to have a drug cartel hurt or kill their Mother. The GAL found the oldest child’s narrative credible, and found it difficult to judge the credibility of the two younger children, although the court credited their statements because they were corroborated by the eldest child’s statements. Separate from the report by the GAL, which the parties agreed would be admitted without restriction, including the children’s statements for the truth of the matter asserted, both parties testified. The Respondent Mother testified over 13 hours about numerous incidents of abuse, in “exacting detail” and it was “challenging for her to speak.” The court concluded that her “demeanor suggested honesty.” Furthermore, her testimony was “corroborated by specific memories of the children.” The Petitioner Father testified, by and large, that none of the incidents of abuse ever occurred and that the parties “did not fight in front of the children” and “would ‘hardly fight’”.
Petitioner Father challenged the Mother’s credibility because her asylum application, her affidavit before the court, and her live testimony had minor inconsistencies (the date she claimed she was taken to the drug cartel’s “pigpen”, the name of the man at the “pigpen”). The court, however, stated “[i]t is unrealistic to expect perfect consistency between the asylum application, affidavit, and testimony especially when [Mother] does not speak English, and the application, affidavit, and testimony were all conveyed through different translators.” The Petitioner also submitted 94 pages of Facebook messages that purport to be from the Mother seeking forgiveness and approval. The court responded with the statement that “[s]pousal abuse is pernicious, harmful, and complex. As a victim of abuse, [Mother] may harbor confused feelings towards [Father] consistent with these Facebook messages.” The court found that the Father’s testimony was not credible. “Most significantly, his testimony regarding the spousal abuse was inconsistent with the children’s statements.” The Petitioner put forth 2 neighbors as witnesses, who said they never observed abuse or fighting, but the court concluded that they had limited ability to observe what might have actually transpired in another couple’s house.
On the above basis, and with a lot of credit given to the three children’s interviews by the GAL, the court concluded that the Mother had established that returning the children would expose them to a grave risk of physical or psychological harm “because the evidence showed that the children observed repeated instances of spousal abuse that was severe enough to cause lasting distress and fear of [Father].” Separately, a pediatrician met with each child once, and diagnosed each with issues ranging from post-traumatic stress disorder to separation anxiety disorder, all that the pediatrician concluded would be compounded if returned to Mexico. Separately, the Court also noted that the eldest child was often in the middle of his parents’ physical altercations “defending” his Mother, and because the Mother has stated that she would not remain in the USA if the children were returned, the court concluded this would then lead to additional interaction between the parents and additional instances where the children would be placed in the middle.
The Father put forth a Mexican legal expert to testify about the legal system and laws in place in Mexico to protect women and children. The court credited this testimony but found that “Mexico’s legal protections do not mitigate the grave risk of harm to the children.” It further stated “[t]here is a difference between the law on the books and the law as it is actually applied, and nowhere is the difference as great as in domestic relations [due to] the privacy of the family.”
