Mr. Ruiz Oliva’s Petition for return of his son to Mexica was denied. The court concluded that the United States, and not Mexico, was the child’s habitual residence. In making this threshold finding, the court did not opine on whether any exceptions, argued by Ms. Espinoza, were met.
On October 19, 2019, Mr. Ruiz Oliva and Ms. Espinoza brought their 3-year-old son into the United States, through San Diego, on tourist visas. The parents and child were all born and had been living in Mexico. Their relationship was tumultuous, but at some point, the parents decided that they wishes to relocate the family to the United States. They initially lived with Ms. Espinoza’s sister and brother-in-law. Mr. Ruiz Oliva apparently quickly found work as a landscaper and Ms. Espinoza found work in a bakery. They enrolled their son in school, arguably to avoid the cost of childcare while they were working. The couple continued fighting, and Mr. Ruiz Oliva made threats to return to Mexico with his son. On November 11, 2019, Mr. Ruiz Oliva moved out of Ms. Espinoza’s sister’s house. The parents entered into a written agreement for weekend access between father and son. On Christmas Day, not having a copy of their written agreement, Ms. Espinoza requested one from Mr. Ruiz Oliva. He refused to give her a copy. She also asked for the parents to enter into a legal custody agreement, but he refused, apparently concerned of losing his travel visa. This was the last day that Mr. Ruiz Oliva and his son spoke. He reported his wife and child as disappeared. The police located Ms. Espinoza, and after discussing the situation with her, advised her to seek a restraining order. Mr. Ruiz Oliva contacted ICE by email and alleged that Ms. Espinoza obtained a false green card to work in the U.S. She was detained by ICE. On January 17, 2020, she filed for a DVRO, but it was dismissed at a February 4, 2020 hearing. On February 6, 2020, she filed a petition in family court for full custody and supervised visitation. It was not granted. Mr. Ruiz Oliva returned to Mexico.
The Court concluded that, based on the Monasky totality-of-the-circumstances analysis, the facts presented at trial indicated that the child, now age 5, was a habitual resident of the United States, not Mexico. Since the Father’s request to return his son to Mexico is premised on Mexico being the child’s habitual residence, his petition must be denied.