On August 19, 2020, the Ninth Circuit Court of Appeals affirmed the trial court’s refusal to return a minor child to Mexico in the case of Castro v. Hernandez Renteria on the basis that the underlying petition for return was filed more than one year after the child’s wrongful removal/retention, and the child is now settled.
This case shows some creative arguing by both sides. The key issue was the date on which Bertha, the minor child’s maternal grandmother, removed or retained the child outside of its habitual residence of Mexico. There are a few potential dates, and each level of the court chose a different one.
At the time of the child’s departure from Mexico with Bertha, the child was in its father’s primary custody, but since the child’ father was incarcerated, the child’s paternal half-sister had de facto custody. The child’s mother was missing. On August 25, 2017, the minor child boarded a flight from Mexico and arrived in Las Vegas, NV with Bertha. At this time, the minor child was in the provisional custody of Bertha for the sole purpose of being psychologically tested. On August 30, 2017, Carmen, the child’s paternal half-sister alerted the court of the child’s removal. The court issued an order and set a hearing for September 8, 2017. Oddly, September 8, 2017 was the date on which Bertha’s provisional custody order was set to expire. Bertha was ordered to appear with the child on September 8th in court, but did not. On September 13, 2017, the court received a letter from Bertha saying she would be staying indefinitely with the child in Las Vegas. So, which of these dates is the date Bertha either wrongfully removed or retained the child out of its habitual residence?
The magistrate said September 8, 2017 – when Bertha failed to appear with the child at a court hearing, after all, Bertha had provisional custody up until this date as well. The district court said August 30, 2017 – the date Carmen alerted the court that Bertha had removed the child from Mexico and the Mexican court issued an order mandating Bertha to return and bring the child to a court date. The Ninth Circuit Court of Appeals disagreed with both lower fact-finders and went with August 25, 2017 – the date on which Bertha removed the child from Mexico as evidenced by airline boarding passes. It reviewed the language in the Mexican court orders very carefully and concluded that the Mexican court found that Bertha was leaving Mexico without “authorization.” In fact, there was an arrest warrant issued in Mexico for Bertha for kidnapping.
All of these dates are, of course, pertinent because Carmen filed her return petition with the U.S. District Court on September 7, 2018. Every single court that reviewed this case concluded that the minor child was “now settled” in Nevada (even the magistrate concluded this, despite not having found Carmen to have filed her return petition beyond one year). What makes this a little more unique is that clearly Carmen wanted the Ninth Circuit to select September 8, 2017 as the date of wrongful retention, so she argued that Bertha had the absolute right to remove the minor child to Nevada on August 25 because of the provisional custody order and that Carmen gave implied consent to that removal. Because Bertha wanted the court to select any date before September 8, 2017 as the date of wrongful removal, she actually argued that she had no legal right to remove the child under the provisional custody order, and that Carmen did not consent to the removal. These arguments sound a bit contrary to what we traditionally see, but they work for the key issue – pinpointing the date of the wrongful removal. Ultimately, Carmen’s petition for return was denied – she filed it beyond one year, and the court concluded the child is now settled based on the facts elicited by the magistrate that remain un-contradicted.