Case Update (10 Feb 2025): Ontiveros v. Pinion, child’s habitual residence did not shift to USA when child resided in USA to obtain LPR status and nothing more
The parties are parents to one 11-year-old child. The Petitioner Mother was the sole custodian of the child, but both parents had parental rights, pursuant to a Mexican divorce decree. The child resided with Petitioner, and spent time with Respondent Father. In or around 2021, the Respondent Father became engaged to a woman who resided in Washington State in the USA. The parties discussed adding the child as a derivative to his visa application so that he could bring the child into the USA and ultimately seek Lawful Permanent Resident status for the child. During these discussions, the Petitioner Mother apparently agreed to let the child seek LPR status, but did not agree to the child remaining in the USA after the child was granted such status. She did not, in any way, cede custody of the child to the Respondent. She did, however, sign a power of attorney to permit the Respondent’s fiance’ to seek LPR status for the child.
The child was granted a visa to enter the USA in 2023, and traveled to the USA to reside with Respondent and his fiance’ on August 24, 2023. The agreement was that the child would have liberal access with Petitioner during the child’s time in the USA. In or around November 2023, Petitioner was experiencing communication difficulties with the child. This, in turn, led to Petitioner revoking the power of attorney on February 9, 2024. The following day, she arrived in Washington State, and attempted to retrieve the child to return to Mexico, but she was prevented from leaving with the child, and ultimately returned to Mexico alone. On February 24, 2024, the Petitioner Mother filed a formal application to seek the child’s return with the Mexican Central Autority. She filed the petition in this lawsuit on August 26, 2024.
The court concluded that, on February 10, 2024 - the day that Petitioner attempted to retrieve the child to return her to Mexico - the child was habitually resident in Mexico. The child had previously lived her entire life in Mexico, had been in the USA for less than six months, was in the USA temporarily with the permission of Petitioner, and was to return to Mexico once the child obtained LPR status. While the child was in school, and becoming acclimated to her surroundings, she was living with Respondent in temporary housing and the application for LPR status was only initiated the day before the ‘wrongful’ retention. Further, the court found that the Petitioner did not consent to the child’s permanent relocation or indefinite stay in the USA. The agreement was that the child was traveling for a limited duration - until she received her LPR status, which the parties had concluded could be within 1 to 2 years. Once the agreed-upon virtual access stopped, the Petitioner began to actively seek the child’s return to Mexico.
