Case Update (4 Jan 2024): In re. Marriage Morales & Meixueiro; custody decree that is silent on patria postestas is not a waiver of those rights of custody
This case is before the Colorado state courts, and the opinion was handed down by the Colorado Court of Appeals. A minor child’s father appealed a trial court’s decision that dismissed his request to have that child returned to Mexico pursuant to the Hague Abduction Convention. The trial court had dismissed the case mid-trial after concluding that the father had failed to demonstrate that he had a “right of custody,” which is a prerequisite to sufficiently arguing return under the Convention. The parents were subject to a court order in Chihuahua, Mexico from November 2020 that included certain custody provisions related to their child. The Mexican court order awarded mother sole physical custody and gave father a visitation schedule. On appeal, the father argued that the court order did not extinguish his right of patria postestas under the Civil Code of Chihuahua, which is a right to exercise parental authority as to the child’s physical, mental, moral, and social well-being. The mother agreed that a right of patria postestas is a right of custody under the Convention, but argued that the court order extinguished this right to the father.
The Court of Appeal reviewed 2 separate translations of the Mexican court order, found that the translations were sufficiently similar so as not to conflict, and then found that the court order was specifically silent as to the father’s patria potestas rights. Because the decree was silent, and these rights are the default under the Chihuahua civil code, the Court of Appeal concluded that the father did not surrender such rights, and therefore retained this right of custody.
The Court of Appeal therefore reversed and remanded for further proceedings, specifically to allow the mother to present her case, which was halted when the trial judge dismissed the case after father’s case-in-chief. As a note on timing, the father filed his initial petition for the return of the child in June 2021. He spent approximately one year trying to locate the mother in Colorado, and eventually served her in October 2022.
The Court of Appeal decision also noted that the father additionally requested, in June 2021, that the state trial court register and enforce the Mexican court order. He obtained a warrant to pickup the child as part of that proceeding. It is unclear from the Court of Appeal opinion, which only focused on the one insular issue of patria potestas, the posture of the UCCJEA portion of the overall proceedings.
