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Enrique Estrada v. Sofia Salas-Perez

September 28, 2012

ENRIQUE ESTRADA, PETITIONER,
v.
SOFIA SALAS-PEREZ, RESPONDENT.



The opinion of the court was delivered by: Judge Feinerman

MEMORANDUM OPINION AND ORDER

Petitioner Enrique Estrada and Respondent Sofia Salas-Perez are the parents of a seven year-old child. Estrada lives in Mexico and Salas-Perez lives in Illinois. Pursuant to a custody agreement signed by Estrada and Salas-Perez and entered by a Mexican family court in March 2010, the child resided with Estrada in Mexico during the school year and traveled to Illinois during school vacations to visit Salas-Perez. In August 2011, Salas-Perez refused to send the child back to Mexico at what was supposed to be the end of her summer vacation in Illinois. In September 2011, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89 (Oct. 25, 1980), Estrada filed with the Mexican Central Authority a request for the child's return to Mexico. The Mexican Central Authority forwarded the request for return to the United States Central Authority.

On February 13, 2012, Estrada filed a counseled Hague Convention petition in this court. Doc. 1. Days later, the court issued a temporary restraining order enjoining Salas-Perez from removing the child from the Northern District of Illinois. Doc. 9. Salas-Perez appeared through counsel, moved to dismiss the petition, and filed an answer. Docs. 14-16. The parties agreed to extend the temporary restraining order through the date of the evidentiary hearing, which ultimately was scheduled (with the parties' agreement) for September 18, 2012. Docs. 18, 27, 33-35. In the meantime, on the parties' joint motion, the court appointed Dr. Hector Machabanski, Ph.D., a clinical psychologist, as an expert under Federal Rule of Evidence 706; the court directed Dr. Machabanski to examine the child and to submit a report regarding, among other things, whether the child was abused in Mexico and whether she would face a grave risk of harm if returned to Mexico. Doc. 29. The parties agreed at the pretrial conference (Doc. 36) that the court could consider Dr. Machabanski's report without having to call him to testify; they also agreed that neither party would call the child to testify.

This case presents two principal issues. The first is whether Estrada has proved by a preponderance of the evidence that Salas-Perez wrongfully retained the child in Illinois within the meaning of Article 3 of the Convention. See Kijowska v. Haines, 463 F.3d 583, 586 (7th Cir. 2006); Koch v. Koch, 450 F.3d 703, 715 (7th Cir. 2006). The second issue, which becomes relevant only if there was a wrongful retention, concerns Article 13(b) of the Convention, which provides that a wrongfully retained child should not be returned to her habitual residence if the retaining parent proves by clear and convincing evidence that "there is a grave risk that . her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." Convention, art. 13(b); see Khan v. Fatima, 680 F.3d 781, 784 (7th Cir. 2012); Altamiranda Vale v. Avila, 538 F.3d 581, 587 (7th Cir. 2008); Fabri v. PritikinFabri, 221 F. Supp. 2d 859, 863-64 (N.D. Ill. 2001).

Both sides presented testimony at the evidentiary hearing; Estrada called himself, while Salas-Perez called herself and Jennifer Lara, a licensed clinical professional counselor who examined the child in 2011. Both sides offered exhibits into evidence without objection.

Having considered the evidence and the parties' legal arguments, the court finds that (1) Estrada has proved by a preponderance of the evidence that Salas-Perez's retention of the child in Illinois was wrongful within the meaning of Article 3, and (2) Salas-Perez has not proved by clear and convincing evidence that the child's return to Mexico would place her at grave risk of harm within the meaning of Article 13(b). Accordingly, the court grants Estrada's petition and orders the child's return to Mexico.

Findings of Fact

A. The Parties

1. Estrada was born in Mexico and moved to the United States in or around 1996. He is a Mexican national. Estrada moved from Illinois back to Mexico in May 2007.

2. Salas-Perez was born in Mexico and moved to the United States in or around 2001 with her son Rigoberto. She is a Mexican national and currently resides in Illinois.

B. Facts Pertaining to the Wrongful Retention Issue

3. Estrada and Salas-Perez met in Mexico as children. When Salas-Perez first moved to Chicago, Estrada helped her get situated. They began a romantic relationship in or around 2003.

4. On October 5, 2004, in Chicago, Salas-Perez gave birth to the child. Pet. Exh. 1.

5. Estrada's and Salas-Perez's romantic relationship ended in or around May 2006.

6. On July 17, 2006, Estrada filed in the Circuit Court of Cook County, Illinois, a petition to establish his paternity of the child. Pet. Exh. 2. On August 25, 2006, the Illinois court entered an agreed order awarding Estrada the "sole care, custody, control and education" of the child. Pet. Exh. 3. Salas-Perez was given weekend visitation rights and was required to pay child support. Ibid.

7. After losing his job, Estrada decided in 2007 that he wanted to move back to Mexico with the child. Without obtaining Salas-Perez's consent or the Illinois court's permission, Estrada moved with the child to Mexico on May 27, 2007. Salas-Perez did not have advance notice of the move and did not learn that Estrada had left for Mexico with their child until days later.

8. On July 17, 2007, on Salas-Perez's motion, the Illinois court entered an emergency order of protection requiring Estrada to return the child to Illinois, in compliance with the court's August 2006 custody order. Resp. Exhs. 3, 4.

9. On July 26, 2007, Salas-Perez submitted a Hague Convention petition to the United States Department of State, claiming that Estrada's removal of the child to Mexico was wrongful because it violated her custody rights under the Illinois court's August 2006 and July 2007 orders. Resp. Exh. 5. Salas-Perez's petition eventually was registered as Case Number 1242/2007 in the Family Court of Cuautitlan Izcalli, Mexico. Pet. Exh. 9.

10. In August 2007, Salas-Perez's son Rigoberto, who was seventeen or eighteen at the time, moved to Mexico to live with Estrada. Salas-Perez took Rigoberto to the airport knowing that he planned to live with Estrada. Rigoberto stayed with Estrada for less than one year. Salas-Perez lost contact with Estrada and the child after Rigoberto moved out of Estrada's home.

11. Estrada enrolled the child in kindergarten and elementary school in Mexico.

12. On May 16, 2009, Estrada married a woman named Janet, who moved in with Estrada and the child.

13. Estrada did not learn of Salas-Perez's Hague Convention petition until June 2009, when he was served with process by a Mexican court officer.

14. In January 2010, Salas-Perez, through her attorney at the Legal Assistance Foundation's Chicago office, filed a Motion for Modification of Parenting Agreement in the Illinois court. Pet. Exh. 7. The motion asked the state court to modify the ...


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