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Flores Castro v. Hernandez Renteria

Facts

Z.F.M.Z. was born in Las Vegas and lived primarily with her grandmother, Bertha, after her mother disappeared. Following custody proceedings initiated by Z.F.M.Z.'s father, Raul, Bertha obtained provisional custody to take Z.F.M.Z. for a psychological evaluation. However, Bertha left Mexico with Z.F.M.Z. on August 25, 2017, without proper authorization, leading to the dispute over custody and the petition for return filed by Carmen, Z.F.M.Z.'s half-sister, in September 2018.

Z.F.M.Z. was born in Las Vegas in 2009, the daughter of Rusia Michel Zamora and Raul Flores Hernandez. Rusia and Raul thereafter moved to Mexico, where they lived separately. Z.F.M.Z. lived primarily with Rusia and Bertha. In 2014, Rusia disappeared under unknown circumstances. Raul was in prison at the time, and Bertha became Z.F.M.Z.'s primary caregiver.

Issue

The main legal issues were whether Bertha wrongfully removed Z.F.M.Z. from Mexico and whether Carmen's petition for return was timely filed under the Hague Convention.

The parties' dispute concerns the precise date on which Bertha either wrongfully removed or wrongfully retained Z.F.M.Z. within the meaning of the Convention, which dictates whether Carmen's petition was timely filed.

Rule

Under the Hague Convention, a child is considered wrongfully removed if taken in breach of the rights of custody attributed to any guardian under the law of the child's habitual residence. A petition for return must be filed within one year of the wrongful removal.

The Hague Convention generally provides that when a child has been 'wrongfully removed or retained' across international borders, the judicial authority of the State 'where the child is . . . shall order the return of the child' if an eligible parent or guardian petitions for return within one year.

Analysis

The court determined that Bertha's removal of Z.F.M.Z. was wrongful as it breached the rights of custody held by Carmen and the Jalisco court. The court found that the date of wrongful removal was August 30, 2017, when Carmen notified the Jalisco court of Bertha's actions, making Carmen's petition filed in September 2018 untimely. The court also considered the child's current settled status in Las Vegas, which influenced its decision not to order the return.

The district court concluded that Bertha wrongfully removed Z.F.M.Z. from Mexico no later than August 30, 2017. Carmen argues that Bertha's removal of Z.F.M.Z. was not wrongful at all, and that Bertha's retention of Z.F.M.Z. outside of Mexico did not become wrongful until at least September 8, 2017, when Bertha failed to appear with Z.F.M.Z. at the custody hearing.

Conclusion

The court affirmed the district court's denial of Carmen's petition for the return of Z.F.M.Z. to Mexico, concluding that the petition was untimely and that Z.F.M.Z. was settled in her current environment.

The court then declined to exercise its discretion to nevertheless order return. See In re B. Del C.S.B., 559 F.3d 999, 1015-16 (9th Cir. 2009).

Who won?

Bertha Hernandez Renteria prevailed in the case because the court found that the petition for return was untimely and that Z.F.M.Z. was settled in Las Vegas, which outweighed the wrongful removal.

The court highlighted the magistrate's uncontested findings on the now-settled defense, including that Z.F.M.Z. had made 'significant improvement in English,' achieved 'several school awards,' made 'three best-friends' in her new environment, and has family in the United States that 'supports her academic and recreational interests.'

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