Petitioner Father and Respondent Mother are parents to one child, born in Ecuador. The parents were in a civil union until August 29, 2019, at which time they ended their relationship. At the same time, they entered into a custody agreement that gave Respondent custody with open visitation rights for Petitioner. The child would spend weekends with her father, until around December 2020, at which time Respondent began traveling, and the child would then spend “all of her time” with him. In August 2021, Father consented in a notarized agreement for Mother and child to travel to Cancun, Mexico for vacation from August 25, 2021 to September 2, 2021. Evidence at trial demonstrated that on August 27, 2021, Mother and daughter crossed into the United States through a “hole in the fence” in Arizona, were arrested by U.S. Border Patrol, and then released into the United States, where they traveled to the Western District of Louisiana. On August 31, 2021, Father asked Mother if he could pick up the child, but the Mother indicated that their passports were lost, and they would be requesting asylum in the U.S. On May 26, 2022, Father filed this lawsuit requesting the return of his daughter to Ecuador under the Hague Abduction Convention. The Mother was appointed counsel, and, in her Answer, filed on July 14, 2022, argued that Father had no “right of custody” and a return would expose the child to a grave risk of physical and psychological harm.
On August 5, 2022, the Court received a Joint Statement of Ecuadorian law, filed by the parties which said, “that a ‘ne exeat‘ right of a parent to consent to their child leaving the country is a ‘right of custody’ as defined by the Convention and that under Ecuadorian law both biological parents, regardless of the custodial arrangement, must consent before a Judge or Notary Public before their child may leave Ecuador. The parties further agreed that Ecuadorian law proscribes one parent from keeping a child in a foreign country beyond the scope of the other parent’s consent and that it is unlawful for one parent to impair the other parent’s visitation rights.” Therefore, the parties stipulated that Father had a right of custody.
As for Mother’s remaining argument of a grave risk if the child were returned, the court indicated, “there is no evidence of any abuse, neglect, or violence either towards or in the presence of P.A.V.C. by Petitioner.” The Mother presented “limited” evidence of Father’s drinking, driving while intoxicated, and “minor domestic altercations” between Mother and Father. Therefore, she did not meet her burden by clear and convincing evidence.
The court concluded that the child must be returned to Ecuador. It ordered, among other things, “that the United States Department of Homeland Security and the United States Department of State shall within two (2) business days, produce to the Court all documents necessary for P.A.V.C.’s return to Ecuador. This Order shall be served immediately on the United States Attorney for the Western District of Louisiana on behalf of the United States Department of Homeland Security and the United States Department of State.” [Note: no party or child is a U.S. citizen, but presumably Border Patrol confiscated any travel documents at the time Mother and Child crossed into the United States]