On March 15, 2021, in the case of de Jesus Joya Rubio v. Alvarez, the U.S. District Court for the SD of Florida denied a father’s petition to have his 12-year-old son returned to Mexico.  The father proved his prima facie case, so the court shifted its review to the 3 exceptions the respondent mother argued.  As part of the mother’s arguments, she retained the services of a psychologist to evaluate the minor child.  Ultimately the mother demonstrated that the minor child was mature, objected to returning to Mexico, and was not unduly influenced, and that the father filed his return petition more than one year past the wrongful retention and the child was now settled.  

Mature Child’s Objection

The psychologist’s evaluation of the child was key, and he focused on several very prominent issues when opining that the child had mature objections and was not unduly influenced.  Most specifically, the child was diagnosed with ADHD in Florida, and his mother had sought the treatment, along with an IEP at his Florida school.  This apparently helped him tremendously in his academics, and the child was able to articulate that the Florida school and environment provided him a better place to learn and he is happy with his ADHD treatment.  The child was also able to share that he knew that, regardless of being in the United States, he would continue seeing his father and having a relationship with him.  Further, he noted that he had a strong family bond with a younger brother and his family in the United States.  

Now Settled

The father argued that he had filed paperwork with the U.S. Department of State well before one year had passed, and cited to a Texas case from last year where the court concluded this was sufficient.  The Florida court, however, cited to ICARA and correctly stated that a case is not commenced until filing a lawsuit in the United States.  It seemed that the father had secured legal counsel in Florida, but, for some reason, the legal counsel filed paperwork in the family courts to register a Mexican custody order that was obtained ex parte, instead of pursuing a Hague Abduction return petition.  The totality of the facts in the case pointed towards the child being settled in Florida over the 15 months between retention and filing, which was probably compounded because the child had previously lived in Florida from 2010 to 2016.