United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
GARY FEINERMAN, District Judge.
Petitioner Carmen Marlyn Solano Vilchis and Respondent Anthoney Wayne Hall are the parents of two daughters aged five and seven. Solano currently lives in Tijuana, Baja California, Mexico, which is just across the border from the United States, and Hall currently lives in Waukegan, Illinois. In late August 2012, after a period of about twenty months during which the children were spending time with both Solano in Tijuana and Hall in San Diego, California, Hall took the children to Illinois. 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), Solano filed with the Mexican Central Authority a request for the return of the children to Mexico. The Mexican Central Authority forwarded Solano's request to the United States Central Authority. Solano then filed a counseled Hague Convention petition in this court. Doc. 1. Hall appeared, Doc. 10, and the court recruited counsel to represent him, Doc. 13.
A court held a two-day evidentiary hearing, with Solano testifying via videoconference from Mexico. Docs. 29-30; Trial Transcript ("Tr.") 1-196 (reproduced at Docs. 41-2, 41-3, 41-4, and Doc. 41-5 at 1-22). At the conclusion of the hearing, the parties agreed upon a post-hearing briefing schedule. Doc. 30. The briefs focus on two issues. Docs. 35-37, 41-42. The first is whether Solano has proved by a preponderance of the evidence that Hall wrongfully removed the children from Mexico, or wrongfully retained them in the United States, within the meaning of Article 3 of the Convention. See Redmond v. Redmond, 724 F.3d 729, 737 (7th Cir. 2013); 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 has been a wrongful retention or removal, concerns Article 13(a) of the Convention, which provides that the children need not be returned to Mexico if Hall has proved that Solano "consented to... the removal or retention." Convention, art. 13(b); see Walker v. Walker, 701 F.3d 1110, 1122-23 (7th Cir. 2012).
Having considered the evidence (including the depositions of four non-party witnesses who did not appear at the hearing) and the parties' legal arguments, the court finds that Solano has not proved by a preponderance of the evidence that Hall wrongfully removed or retained the children. Accordingly, the court denies Solano's petition.
Findings of Fact
The court finds the following facts by a preponderance of the evidence.
1. Solano was born in Mexico and is a citizen of Mexico. In 1999, when she was thirteen years old, Solano moved to the United States with her family and settled in Illinois. Tr. 67-68; Doc. 36 at 11. She resided in the United States as an undocumented immigrant until moving back to Mexico in October 2010 due to a family emergency discussed in greater detail below. Tr. 68, 76. Solano speaks English fluently. Tr. 68-69.
2. Hall was born in Waukegan, Illinois, and is a United States citizen. Tr. 88.
3. Solano and Hall met in 2005 in Illinois and moved in together shortly after beginning a romantic relationship. Tr. 55-56, 92-93; Doc. 37 at 22-26.
4. Solano gave birth to their first daughter in May 2007 and their second daughter in November 2008. Pet. Tr. Exhs. 2-3 (Doc. 41-6 at 2; Doc. 41-7 at 2-3); Tr. 89-90. The children are United States citizens. Tr. 69. The couple lived together sporadically in the Chicago area until October 2010. Tr. 56-58, 93; Doc. 37 at 55-56.
5. In October 2010, Solano told Hall that she and her family had to leave Illinois immediately, within a day or two, due to threats made against Solano's sister by the sister's husband, a man named Juan Hacha. Tr. 59, 76-77, 93-96; Doc. 36-1 at 11-15, 27-31. The court expressly finds that Solano would not have wanted to leave Illinois but for that threat. Tr. 80 (where Solano agreed that she "had made no concrete plans of any kind before the family emergency to leave Illinois").
6. Hall did not want to leave Illinois and did not want the children to leave Illinois. Tr. 95-98.
7. Hall decided to leave Illinois with Solano so that he could remain with their children. Tr. 96. At first, Solano told Hall they were going to California. Tr. 94, 96. At some point during the trip, which the entire group took in Hall's truck and two other vehicles, Solano and her family told Hall that they in fact were going to Mexico. Tr. 77, 96-97, 99.
8. Solano testified that she spoke with Hall before the trip about going to Mexico and that he agreed it would be a good opportunity. Tr. 70-71, 80-81. The court finds that particular testimony to be not credible, as Hall persuasively testified that he never wanted to move himself and the children to Mexico. Tr. 95-98, 127.
9. At the time he agreed to leave Illinois, Hall did not intend for the children to establish residence in Mexico. Tr. 95-96.
10. Solano, her family, Hall, and the children arrived in Mexico in mid-October 2010. Tr. 99. They spent about two weeks in northern Baja California and then went to Mexico City. Tr. 100; Doc. 36 at 27-28.
11. In late November 2010, Hall went to the United States Embassy in Mexico City to ask for help in getting the children back to the United States. Resp. Tr. Exh. 1 (Doc. 41-5 at 24); Tr. 101-104. The State Department closed the file in February 2011 when Hall ...