In the case of Colon v. Mejia Montufar, the U.S. District Court denied the Father’s request to return his minor child to Guatemala. The parties had stipulated that the Father met his burden of presenting a prima facie case of wrongful removal, but the Mother presented two exceptions to returning the child: that returning the child would expose the child to a grave risk of harm, and that the child was mature and objected to being returned. The Court concluded that the Mother did not meet her burden to prove a grave risk, but did meet her burden that the child is of sufficient age and maturity and that the court should consider his objection to being returned to Guatemala.
The Mother first argued that the minor child would be recruited into a gang in Guatemala, or harmed if he refused to join a gang, creating a grave risk of harm if returned. She hired Dr. Miguel Firpi to testify on both exceptions she argued. Dr. Firpi opined that the minor child “may experience significant emotional distress or even trauma by the return to Guatemala” because the child was in fear of being harmed by gang members. The court examined whether there was a specific risk to this particular child (and not just a general regional risk of violence). The Mother relied on the fact that Leo, a person who lived with the Mother and child in Guatemala, was forcibly recruited into the MS-13 gang. Leo’s recruitment alone is insufficient because it does not draw the necessary nexus between Leo and this child’s potential recruitment. Furthermore, there was no evidence that Leo’s involvement with gangs put this child in a “zone of danger” that might expose him to a higher risk. While the child had been previously threatened by gangs, it was over a year since that threat, and there is no ongoing threat.
Dr. Firpi also opined that the minor child was “mature enough to independently form and state an opinion as to whether he objects to a return to Guatemala” and the child’s “opinion does not appear to have been the product of coercion, coaching or parental alienation.” Petitioner Father attempted to present evidence that the Mother had put up significant impediments to him and the child’s half-sister communicating with the child post-abduction, but the court did not find Father’s or his witnesses’ testimony to be credible, and concluded that the Mother did not impede the child’s communication with the Father. Ultimately, the child objected to returning because he feared reprisals from gang members, preferred to remain with Respondent over Petitioner, and he perceived better opportunities for himself in the United States over Guatemala.
The Father presented no evidence that contradicted Dr. Firpi’s findings.