Petitioner Father seeks the return of the parties’ 2-year-old child by filing a petition for return under the Hague Abduction Convention in the Western District of Texas on October 19, 2022. He alleged that the child was removed from its habitual residence of Mexico on or about October 9, 2021. The Respondent Mother argued that Petitioner consented to the removal (and, in fact, helped organize it) and that the child is now settled in Texas. The couple was engaged, and living in Mexico City, with the child. When they originally met, Father knew that Mother’s ultimate goal was to live in the United States, something he was unable to do, as he had previously been deported from the USA. The couple’s testimony differed at trial, with Father depicting a happy life in Mexico City, with a large house and within walking distance to a school. He said that Mother had abandoned her desire to move to the USA because of their engagement and his inability to live there. Mother depicted an unsafe/dangerous life in Mexico City, and new urgency to move to the USA to give their child a better life. She stated that the parents agreed, approximately two months before her removal of the child from Mexico, for her and the child to cross into the USA first, to be followed by the Father once Mother and child had an apartment.

The family obtained a Mexican birth certificate for their child, and then took a bus to Monterrey, Mexico. Two days later, Father returned to Mexico City for work. Mother testified that a day after the family had arrived in Monterrey, she and the child met with a Honduran coyote, and paid the coyote $2,000 (borrowed from her aunt). Mother claimed that Father helped her and the child into the car before they boarded a boat to cross into the USA, and even bought her a cell phone for the trip. She says she remained in daily contact with him throughout the trip. On October 11, 2022, she surrendered to Border Patrol, was held in custody for 2 days, and was then released to her aunt in San Antonio. At this point, the Mother and Father’s relationship deteriorated beyond repair. Mother claimed that the Father began drinking again, and would call her drunk, saying offensive things. On the evening of October 31, 2022, she confirmed he was being unfaithful.

As to the Mother’s consent argument, the court noted that “it is important to consider what the petitioner actually contemplated and agreed to in allowing the child to travel outside its home country.” The court found that Father did consent to the child’s removal from Mexico “but that removal was conditioned on [Father’s] ability to rejoin his family in the United States or, at the very least, on his continued relationship with [Mother].” Since the Mother failed to establish that Father “clearly and unequivocally” intended for the child to remain in the USA “regardless of his relationship” with her or his ability to join her and the child in Texas, she did not meet her burden to succeed on the consent exception.

Since the Father did file his return petition more than one year from the date of the wrongful removal, the court also examined the Mother’s argument that the child is now settled in Texas. It examined the variety of factors commonly examined, ranging from the child’s age, environment, school, friends, community, stability, to immigration status. The court concluded that this 2-year-old was not sufficiently old to establish the connections envisioned under this exception. The child is not engaged in activities, the Mother had not filed a petition for asylum, and the child had been in San Antonio for less than a year. To the court, is was not clear that the child would be in the USA long-term or permanently. Therefore, the child was ordered returned to Mexico.

UPDATE: On April 4, 2023, the court amended and restated its return order.