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Recherche de décisions
Nouvelle rechercheAFFAIRE
Nom de l'affaire
Sotelo De Avila v. Gutierrez, Case No. 3:2025cv03163
Référence INCADAT
HC/E/US 1753
Juridiction
États-Unis d'Amérique
Première instance
États concernés
Mexique
États-Unis d'Amérique
Décision
24 March 2026
Définitif
Résidence habituelle - art. 3 | Droit de garde - art. 3 | Acquiescement - art. 13(1)(a) | Risque grave - art. 13(1)(b) | Opposition de l'enfant au retour - art. 13(2)
Retour ordonné
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SYNOPSIS
Synopsis disponible en
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1 child wrongfully retained at age 6 – National of Mexico – divorced parents – Father national of Mexico – Mother national of Mexico – Joint custody, the child lived with the mother and the father had weekend visitation rights – Child lived in Mexico until May 2022 – Application for return filed with the Mexican Central Authority in June 2025 – Return ordered – Main issues: Though the mother had sole custody of the child, the father retained parental rights which were equivalent to rights of custody under the 1980 Convention. The father's actions did not amount to acquiescence as he had agreed for the child to travel to the US only until May 2025.
RÉSUMÉ
Résumé disponible en
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Facts
The parents were Mexican citizens and had a child born in Mexico in 2019 (age 7 at the time of the hearing). The child was a Mexican citizen without a US Green Card.
The parents separated in early 2021. The mother remarried and, in May 2022, asked the father if she could take the child to the USA for three years as her new husband had a temporary secondment there. The father agreed on the basis that the child would return to Mexico in May 2025.
In March 2025 the mother informed the father that she would not be returning to Mexico in May 2025. The father refused to sign a renewal of the travel authorization.
In June 2025 the father filed an application under the 1980 Hague Abduction Convention for the return of the child.
Ruling
Return ordered. The mother failed to provide clear a convincing evidence to support any of the exceptions to return.
Grounds
Habitual Residence - Art. 3
The father never agreed for the child to move to the USA permanently. The child’s residence in the USA was transitory and Mexico remained the place of habitual residence. This finding was supported by the mother and child’s immigration status. The child had also maintained family ties to Mexico including regular visits and video contact.
Rights of Custody - Art. 3
Though the mother had sole custody of the child, the father retained parental rights which were equivalent to rights of custody under the 1980 Convention. The father had maintained contact with the child, contributed to his educational fund and made regular child support payments.
Acquiescence - Art. 13(1)(a)
The mother argued that the father had acquiesced to the situation by allowing the child to travel to the US. The court was quite clear that the father's actions did not amount to acquiescence as he had agreed for the child to travel to the US only until May 2025. There was no evidence that the father had failed to keep in contact with the child or if any other manner that could constitute abandonment.
Grave Risk - Art. 13(1)(b)
The mother argued that the father's medical condition affected his ability to property care for the child and to work and take care of himself. She also argued that his condition caused violent outburst that could lead to physical or psychological harm. However, the mother presented no evidence to support this and her allegations fell well short of what was required to establish a grave risk under Article 13(1)(b).
Objections of the Child to a Return - Art. 13(2)
The mother further argued that the child wished to remain in the US and objected to returning to Mexico, however she had no evidence for this assertion and the child expressed no such view in an interview with a representative of the Court (the guardian ad litem).