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Ortiz v. Martinez

United States District Court, N.D. Illinois, Eastern Division

April 11, 2014

JULIO CESAR ORTIZ, Petitioner,
v.
ZULIMA JUAREZ MARTINEZ Respondent.

MEMORANDUM OPINION AND ORDER

VIRGINIA M. KENDALL, District Judge.

Petitioner Julio Cesar Ortiz ("Ortiz") brings this Motion for a New Trial pursuant to Fed.R.Civ.P. 59, after his petition for the return of his minor children, L.O. and A.O., filed under the Hague Convention of the Civil Aspects of International Child Abduction, T.I.A.S. No. 11670 (July 1, 1988), was denied. (Dkt. No. 72 at 2, 24). For the following reasons, Ortiz's Motion for a New Trial is denied.

BACKGROUND

The International Child Abduction Remedies Act (the "Act"), 42 U.S.C. § 11601 et seq. implements the Convention and allows a person to petition a United States federal court to order the return of their child if the child has been wrongfully removed or abducted to the United States. 42 U.S.C. § 11603(b). Ortiz brought a petition under the Hague Convention of the Civil Aspects of International Child Abduction, T.I.A.S. No. 11670 (July 1, 1988), available at 1988 WL 411501 (the "Convention"), for the return of his two minor children, L.O. and A.O., who both currently reside in the United States with their mother Zulima Juarez Martinez ("Juarez"). (Dkt. No. 15 at 2.) Respondent mother raised a defense under article 13 of the Convention, claiming that the children faced grave risk of harm because Ortiz had previously sexually abused his five-year-old daughter. (Dkt. No. 18 at 12.) Additionally, Juarez claimed the children desired to remain in the United States with her instead of being returned to Mexico with their father.

In order to seek return of children abducted to the United States, a Petitioner must show by a preponderance of the evidence that the child was wrongfully removed. 42 U.S.C. § 11603(e)(1)(A).

A removal is considered wrongful where the Petitioner can show:

a. A breach of rights of custody attributed to a person... under the law of the State where the child was habitually resident immediately before removal.
b. At the time of removal or retention those rights were actually exercised... or would have been so exercised but for the removal or retention. Art. 3, Convention.

However, "while a parent... has a right of custody and may seek a return remedy, a return order is not automatic. Return is not required if the abducting parent can establish that a Convention exception applies." See Art. 13(a), Convention; Abbott v. Abbott, 560 U.S. 1, 22 (2010). If the Petitioner successfully demonstrates removal is in order, then the burden shifts to the Respondent to prove, by clear and convincing evidence, that the child should not be removed subject to one of the four defenses under the Convention. See Arts. 12, 13, 20; 42 U.S.C. § 11603(e)(2)(A)-(B). The four defenses include:

(1) Temporal qualifications. Under Article 12, the Court is not obligated to return a child when Convention proceedings commenced a year or more after the alleged removal or retention and it is demonstrated that the child has settled into his new environment.

(2) Non exercise of custody rights. Under Article 13, the Court may deny an application for return of the child if the person having the care of the child was no actually exercising the custody rights at the time of removal.

(3) Grave risk of harm/intolerable. Under Article 13, a Court in its discretion need not order a child returned if there is a grave risk that return would expose the child to physical harm or otherwise place the child in an intolerable situation.

(4) Protection of human rights. Under Article 20, the Court may refuse the return of a child if it would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.

Finally, there is one exception that the Respondent need not assert as a defense, but can be invoked at the discretion of the Court; child's preference. Under the third unlettered paragraph of Article 13, the Court may decline to order the child returned if the child objects to being returned and has attained an age and ...


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