February 01, 2014

Hague Convention on Child Abduction Not Violated

Scott Trowbridge

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Valenzuela v. Michel, 2013 WL 6038240 (9th Cir.).

Father did not violate the Hague Convention on International Aspects of Child Abduction by keeping children in the U.S. after the mother made violent threats. Parents had previously agreed that children would primarily reside in U.S. to take advantage of schools and medical care and court properly credited the credibility of father over mother where she coached witnesses and contradicted her prior statements to a social worker.

Mother and father had twins in 2008 while living in Nogales, Mexico. The parents remained together through 2010 when the father moved to Arizona for work. The twins split their time between the parents, staying with the father during the week and with the mother on weekends. 

In late 2010, mother and father’s relationship fell apart. The mother threatened to have the father beaten or killed. He made reports to child welfare officials in Arizona and Mexico and refused to return the children on a visit. 

The mother filed a claim under the Hague Convention on International Aspects of Child Abduction in U.S. District Court for Arizona.

The district court heard testimony from the father, mother, a Mexican social worker and others. Based on the testimony, the court found the parents had planned, before their relationship deteriorated, to have the twins living primarily in the U.S. to take advantage of what they thought were better schools and medical care. The district court ruled for the father, finding he had not violated the Convention. 

The mother appealed to the Ninth Circuit Court of Appeals. 

First the Ninth Circuit reviewed the Hague Convention. The Convention’s focus is avoiding forum shopping and determining where a custody case should be held, not adjudicating an underlying custody dispute. 

Under the Convention, removal or retention of a child is considered wrongful where it is a breach of custodial rights under the laws of the jurisdiction where the child is habitually a resident at removal or retention. 

In the trial court, the question of the children’s habitual residence rested on credibility determinations. The court found three things. First, the father’s account of the time in the U.S. and plan for the U.S. being their primary residence was credible. Second, the mother’s version was less credible since it was contradicted by statements she made to the social worker. Third, some of mother’s witnesses were not credible because they lacked independent firsthand information or the mother coached them during their testimony. 

The Ninth Circuit found the district court did not err in finding the U.S. was the twins’ habitual residence since the parents intended to live there long-term and the children had spent significant time in the U.S. 

The Ninth Circuit affirmed the district court’s holding that the Convention had not been violated when the father retained the twins in the U.S.