On March 25, 2021, in the case of Valenzuela v. Cruz, the U.S. District Court for MD of Florida granted Mr. Valenzuela’s petition to return his daughter, MVC, to Mexico.
The parties are parents to one child, who was born while they were living in Florida in 2015. A year after her birth, they moved back to their home of Juarez, Mexico. The child had healthcare, childcare, and education in Juarez. The parties married in 2017, but, after a drunken physical altercation a few months later, they separated, and ultimately divorced in 2018. In the dissolution, they executed an agreement that established a “right of coexistence” between Mr. Valenzuela and MVC, which amounted to an access schedule. It did not, however, dissolve his right to patria postetad, which is only modified, suspended or limited by judicial determination. Because the dissolution granted Mr. Valenzuela access in Juarez, it limited Ms. Cruz’s ability to unilaterally relocate the child. The Mexican Central Authority issued an Article 15 letter that interpreted the dissolution agreement as giving Mr. Valenzuela “rights of custody.”
Ms. Cruz argued that Mexican law (the law of the child’s habitual residence) permits a parent to violate a “coexistence right” if permitting Mr. Valenzuela to exercise his patria postetad rights would expose MVC to danger, and therefore, her removal was not “wrongful” under the treaty. She also argued that returning MVC to Mexico would put her in a grave risk of harm.
The court was not convinced of Ms. Cruz’s argument as to Mexican law. The letter from the Mexican Central Authority gave a clear opinion that Mr. Valenzuela had rights of custody per patria postetad.
Further, there was no grave risk. Ms. Cruz argued that the child was at threat of being abducted in Juarez, that the child’s paternal grandfather presented a threat to the child, and that Mr. Valenzuela exhibited a history of domestic violence. “But at most, Cruz harbors an amorphous and intangible suspicion of danger and fails to establish by clear and convincing evidence that M.V.C. faces a “grave risk” of harm in Juarez. Although attempting to rely on news articles (which were excluded) and State Department reports describing violence in Juarez, Cruz ‘cannot rely on evidence of general regional violence to establish a grave risk of harm.’ Instead, Cruz must present ‘evidence of [a] specific risk of harm’ to M.V.C, a risk which general regional violence cannot establish.”