JULIO C. ORTIZ, Plaintiff-Appellant,
ZULIMA J. MARTINEZ, Defendant-Appellee
Argued April 21, 2015.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:12-cv-03634 -- Virginia M. Kendall, Judge.
For Julio C. Ortiz, Plaintiff - Appellant: Phillip Brigham, Attorney, Law Office of Phillip Brigham LLC, Chicago, IL.
For Zulima J. Martinez, Defendant - Appellee: Daniel W. Thomann, Attorney, Chicago, IL.
Before EASTERBROOK and RIPPLE, Circuit Judges, and REAGAN, District Judge.[*]
Ripple, Circuit Judge.
Julio C. Ortiz filed a petition under the Hague Convention on the Civil Aspects of International Child Abduction (" Hague Convention" or " Convention" ), seeking the return of his two minor children, L.O. and A.O., to Mexico City. The children are currently residing in Chicago with Zulima J. Martinez, their mother and the defendant in this action. At trial, the district court denied Mr. Ortiz's petition. Although it found that Ms. Martinez had wrongfully removed the children from Mexico, the court nonetheless determined that an exception to the Convention's mandatory-return rule applied with respect to each child. Mr. Ortiz timely appealed. For the reasons set forth in this opinion, we affirm the judgment of the district court.
Mr. Ortiz and Ms. Martinez are the parents of two minor children, A.O., a seven-year-old girl, and L.O, a sixteen-year-old boy. Prior to August 2011, Mr. Ortiz and Ms. Martinez lived together with their two children in Mexico City. In August 2011, the couple and their two children travelled to Chicago to visit Ms. Martinez's parents and siblings, all of whom lived in the Chicago area. The couple purchased round-trip tickets, with Mr. Ortiz scheduled to return to Mexico on August 13 and Ms. Martinez and the children scheduled to return on August 20.
Mr. Ortiz returned to Mexico on his scheduled departure date. Ms. Martinez and the children, however, did not. When contacted by Mr. Ortiz, Ms. Martinez informed him that she and the children would not be returning to Mexico. She accused Mr. Ortiz of sexually molesting A.O. and told him that she was keeping the children in the United States for A.O.'s safety.
After attempting, unsuccessfully, to convince Ms. Martinez to return to Mexico with their children, Mr. Ortiz filed this action in the district court in May 2012, under the Hague Convention, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89, seeking the return of their two children to Mexico City for a determination of his custody rights. Ms. Martinez answered the petition, submitting that Mr. Ortiz had failed to establish that the children had been wrongfully removed. She also asserted three affirmative defenses. First,
she asserted that Mr. Ortiz had acquiesced to her retention of the children in the United States, thereby permitting the district court to deny return of their children pursuant to Article 13(a) of the Convention. Second, invoking Article 13(b) of the Convention, she submitted that the children faced a grave risk of harm if returned to Mexico based on Mr. Ortiz's prior sexual abuse of A.O. and prior emotional abuse of L.O. Finally, invoking Article 20 of the Convention, she asserted that return of the children to Mexico was improper " because it would contravene the laws of the State of Illinois, the United States Constitution, and fundamental principles of human rights to return the children to their abusing father." 
Because the case involved allegations of sexual abuse, attorneys for both parties agreed that the court should appoint a psychologist to evaluate the children. At the parties' joint suggestion, the court appointed Dr. Hector S. Machabanski, a psychologist with experience in working with children, as an expert in the case. The district court defined Dr. Machabanski's role as follows:
The role of the Rule 706 Expert shall be to evaluate the minor children in this case and to review any related materials; to prepare a report on the allegations raised in Respondent's Second and Third Affirmative Defenses; and prepare any further reports or assistance as the Court may direct.
In February 2013, Ms. Martinez filed a motion to amend her answer in order to add a fourth affirmative defense. Invoking Article 13's so-called " wishes of the child" exception, Ms. Martinez asserted that L.O. had expressed a desire to remain in the United States and that, given his age and maturity, the court should consider his wishes.
Mr. Ortiz opposed the motion. He submitted that Ms. Martinez's attempt to raise the defense was untimely and that to allow it would prejudice his ability to prepare for trial, which at that point was less than one month away. Further, he noted that Dr. Machabanski had just completed his last session with the children and that his evaluation had not included a specific assessment of L.O.'s ability to make mature decisions about where to live.
In May 2013, the district court held a three-day hearing on Mr. Ortiz's petition. It heard testimony from Ms. Martinez, Mr. Ortiz, and members of their extended family. The court also conducted in camera interviews with L.O. and A.O. ...