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Date: 05-01-2023
Case Style:
Case Number: 5:22-CV-1069
Judge:
Court: United States District Court for the Western District of Texas (Bexar County)
Plaintiff's Attorney:
Defendant's Attorney:
Description: San Antonio, Texas family law lawyers represented Petition and Respondent in a matter involving an application for an order returning a child to Mexico pursuant to the Hague Convention.
This case arises under the Convention on the Civil Aspects of International Child Abduction (the “Hague Convention” or “Convention”), Oct. 24, 1980, T.I.A.S. No. 11670, S. Treaty Doc. No. 99-11, and its implementing legislation, the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. § 9001 et seq. The Hague Conference on Private International Law adopted the Convention in 1980 to address the problem of international child abductions during domestic disputes, such as the one at issue in this case.
Petitioner Luis Ortiz Hernandez (“Ortiz”) initiated this action to secure the return of his son, M.S.O. (the “Child”), who was allegedly removed from Mexico without Petitioner's consent or acquiescence by the Child's mother, Respondent Ruth Sarai Erazo (“Erazo”), on October 9, 2021. ECF No. 5.
Ortiz commenced this action on September 29, 2022, seeking leave to proceed in forma pauperis. ECF No. 1. After his IFP motion was granted (ECF No. 4), Ortiz's Original Petition and Request for Return of Minor Child to Petitioner (“Petition”) was filed on October 19, 2022 (ECF No. 5). On the same day, the Court entered an order granting Petitioner's ex parte motion for a temporary restraining order (“TRO”) prohibiting Erazo, her agents, and all persons acting in concert with her from removing the Child from the geographic jurisdiction of this Court pending further order of this Court or another United States court or agency. ECF No. 6. The Court set Ortiz's request for a preliminary injunction for a hearing on October 31, 2022, and ordered Erazo to appear, with M.S.O., and show cause why the TRO should not be extended beyond its November 2, 2022 expiration date and why M.S.O. should not be returned to Mexico. Id. at 9. The Court extended the TRO twice-first, to allow additional time for service on Erazo and then, to allow Erazo additional time in which to respond to the Petition and prepare for the preliminary injunction hearing. See ECF No. 14; Text Order dated Nov. 11, 2022.
Erazo filed an answer to the Petition on December 27, 2022, asserting that the Child was not wrongfully removed because Petitioner had consented to-and even helped organize- M.S.O.'s removal to the United States. See ECF No. 19 ¶¶ 14-15. According to Erazo, she and Ortiz had arranged to move their family to the United States, with Erazo and M.S.O. crossing into the United States first, to be followed by Ortiz. Erazo's answer further asserts that the Child should not be returned to Mexico because the Petition was not filed in this case until over a year after M.S.O.'s removal and the Child is now well settled in his new environment. Id. ¶ 25.
On January 5, 2023, the Court held a consolidated injunction and merits hearing at which Ortiz and Erazo appeared and presented arguments concerning the propriety of M.S.O.'s return to Mexico. See ECF No. 22; see also FED. R. CIV. P. 65(a); John v. State of La. (Bd. of Trs. for State Colleges & Univs.), 757 F.2d 698, 704 (5th Cir. 1985).
Petitioner appeared remotely at the hearing by videoconference. Erazo appeared in-person, along with one supporting witness: Erazo's aunt, Telma Marilu Chinchilla Reyes (“Reyes”), with whom Erazo and the Child have been living since their arrival in the United States. The parties subsequently filed letter briefs in support of their respective positions. See ECF Nos. 23, 25, and 27.
On February 28, the Court issued an order granting the Petition and ordering that M.S.O. be promptly and safely returned to Ortiz's custody in Mexico. Hernandez v. Erazo, No. SA-22-CV-01069-XR, 2023 WL 2317792, at *9 (W.D. Tex. Feb. 28, 2023). Thereafter, Erazo moved to amend the Court's judgment by merely ordering that the M.S.O. be returned to Mexico without requiring that he be returned to Ortiz's custody, reasoning that neither the Hague Convention nor ICARA authorizes the Court to make custody determinations. See ECF No. 33 at 2-3 (citing England v. England, 234 F.3d 268, 271 (5th Cir. 2000) (“Any debate on the merits of the question, i.e. of custody rights, should take place before the competent authorities in the State where the child had its habitual residence prior to its removal.”) and Abbott v. Abbott, 560 U.S. 1 (2010) (custodial decisions are to be left to the courts of the country of habitual residence)). The Court granted in part and denied in part the motion by issuing an amended and restated order clarifying that nothing in the order should be read to constitute a final or permanent award of physical or legal custody over M.S.O., a determination that must be made in Mexico after M.S.O.'s return. See ECF No. 35 at 16-17.
Erazo now seeks a stay pending appeal, arguing that she is likely to succeed-or has at least presented a substantial case-on the merits of her appeal, that she and M.S.O. would be irreparably harmed by the Child's return to Mexico while Ortiz would not, and that a stay would serve the public interest. ECF No. 34.
Hernandez v. Erazo (W.D. Tex. 2023)
"The Hague Convention on the Civil Aspects of International Child Abduction is an international treaty that aims to protect children from the harmful effects of international child abduction. The Convention was adopted on October 25, 1980, by the Hague Conference on Private International Law (HCCH). As of March 2023, there are 101 Contracting States to the Convention.
The Convention applies to children who have been wrongfully removed or retained in a Contracting State. A child is wrongfully removed if he or she is taken to a Contracting State without the consent of the person who has the right to custody of the child under the law of the State of the child's habitual residence. A child is wrongfully retained if he or she is kept in a Contracting State after the end of the period of time authorized by the person who has the right to custody of the child under the law of the State of the child's habitual residence.
The Convention sets out a procedure for the prompt return of wrongfully removed or retained children to their country of habitual residence. The procedure is initiated by the Central Authority of the State where the child was wrongfully removed or retained. The Central Authority of the State where the child is located will then take all necessary steps to secure the prompt return of the child.
The Convention also provides for a number of exceptions to the general rule of return. These exceptions include cases where the child's return would be contrary to the child's best interests, or where the child has been in the country of refuge for more than one year and has become integrated into that country.
The Hague Convention on the Civil Aspects of International Child Abduction is an important tool for protecting children from the harmful effects of international child abduction. The Convention has been very successful in securing the prompt return of wrongfully removed or retained children."
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Outcome: "For the foregoing reasons, Respondent Ruth Sarai Erazo's Motion to Stay Enforcement of Judgment and Suspend Injunctive Relief Pending Consideration of Respondent's Post-Judgment Motions and Appeal (ECF No. 34) is DENIED." Hernandez v. Erazo (W.D. Tex. 2023)
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