MEMORANDUM OPINION AND ORDER REGARDING PLAINTIFF'S PETITION FOR RETURN OF CHILDREN PURSUANT TO THE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION (THE 1980 HAGUE CONVENTION) AND THE INTERNATIONAL CHILD ABDUCTION REMEDIES ACT (ICARA), 42 U.S.C. §§ 11601-11610
MARK W. BENNETT, District Judge.
Plaintiff Maria Guadalupe Aguilar Mendoza, a citizen of Mexico, filed this action pursuant to the Convention On Civil Aspects Of International Child Abduction (the 1980 Hague Convention or the Convention) and the International Child Abduction Remedies Act (ICARA), 42 U.S.C. §§ 11601-11610, to secure the return of her daughters, five-year-old K.G.M.A. and four-year-old M.K.M.A., whom Ms. Mendoza alleges were, without her consent or acquiescence, wrongfully retained in the Northern District of Iowa, away from their habitual residence in Mexico, by the children's father, defendant Moises Medina Silva. I previously enjoined Mr. Medina from removing the children from the jurisdiction of this court and to surrender the children's passports and travel documents to the Clerk of Court to maintain the status quo pending resolution of this case on the merits. I also set an expedited, consolidated trial on the merits and preliminary injunction hearing for November 18, 2013. Because of the amount of evidence that the parties wished to present and other circumstances, the consolidated trial and preliminary injunction hearing was not completed until after a second day of evidence on December 5, 2013. I enter this decision on the merits of Ms. Mendoza's Verified Complaint And Petition For Return Of Children (docket no. 6) following that consolidated trial on the merits and preliminary injunction hearing.
A. Procedural Background
Ms. Mendoza, who was often identified in these proceedings as "Lupita, " "Lupe, " or "Guadalupe, " initiated this action on November 7, 2013, by filing her Application To Proceed In Forma Pauperis (docket no. 2), her Motion Under The Hague Convention For Entry Of A Temporary Restraining Order And Scheduling Of An Expedited Hearing (Motion For Temporary Restraining Order) (docket no. 3), and her Motion To File Documents Under Seal (docket no. 4), pertaining to exhibits referred to in her Verified Complaint And Petition For Return Of Children (Verified Complaint) (subsequently filed as docket no. 6). By Order (docket no. 5), filed November 7, 2013, I granted Ms. Mendoza in forma pauperis status, directed that her Verified Complaint be filed without prepayment of fees, and directed that exhibits referred to in her Verified Complaint be filed under seal.
1. Ms. Mendoza's verified complaint
In her Verified Complaint, Ms. Mendoza alleges that Mr. Medina's retention of K.G.M.A. and M.K.M.A. in the United States is wrongful within the meaning of Article 3 of the 1980 Hague Convention, because it is in violation of her rights of custody under Mexican law; that, at the time of the wrongful retention in the United States, she was actually exercising her rights of custody within the meaning of Articles 3 and 5 of the Convention or that, but for Mr. Medina's retention of the children, she would have continued to exercise those rights; and that the children were habitually resident with her in Mexico within the meaning of Article 3 of the Convention just prior to their wrongful retention in the United States. She contends that K.G.M.A. and M.K.M.A. are under the age of 16, so that the Convention applies to them, and that she has filed her Verified Complaint within one year of Mr. Medina's wrongful retention of the children. In her Verified Complaint, Ms. Mendoza sought provisional remedies pursuant to 42 U.S.C. § 11604 and Article 16 of the Convention that are consistent with the remedies sought in her Motion For Temporary Restraining Order; attorney's fees and costs, including transportation costs, pursuant to 42 U.S.C. § 11607; an immediate temporary restraining order; an expedited preliminary injunction hearing, consolidated with a trial on the merits, on why the relief sought in her Verified Complaint should not be granted; a final judgment requiring the return of the children to her custody in Mexico; an order requiring Mr. Medina to pay her expenses and costs; and such further relief as may be just and appropriate under the circumstances.
2. The temporary restraining order
On November 7, 2013, I granted Ms. Mendoza's Motion For Temporary Restraining Order. Specifically, in a Temporary Restraining Order (docket no. 8), issued ex parte, at 2:08 p.m. on November 7, 2013, I enjoined Mr. Medina from removing K.G.M.A. and M.K.M.A. from the jurisdiction of this court pending final disposition of the Verified Complaint and further order of the court, and I also enjoined him to surrender the minor children's passports and all other travel documents to the Clerk of Court not later than 4:30 p.m. on the third business day after service of the Temporary Restraining Order. In the Temporary Restraining Order, I also set a consolidated trial on the merits and hearing on Ms. Mendoza's request for a preliminary injunction for Monday, November 18, 2013, at which Mr. Medina was directed to show cause why the children should not be returned to Mexico, accompanied by Ms. Mendoza or her designee, and why the other relief requested in the Verified Complaint should not be granted. I also directed Mr. Medina to provide for and ensure the personal appearance at the consolidated trial and preliminary injunction hearing of the minor children K.G.M.A. and M.K.M.A.
The United States Marshals Service personally served Mr. Medina with Ms. Mendoza's Verified Complaint and my Temporary Restraining Order on November 8, 2013. See Return of Service (Executed) (docket no. 10). Mr. Medina surrendered the children's passports and travel documents to the Clerk of Court, as directed, shortly before 4:00 p.m. on Wednesday, November 13, 2013.
3. The motion to continue
Counsel for Mr. Medina attempted to file an Appearance (docket no. 13) and a Motion To Continue (docket no. 14) after regular business hours on November 14, 2013, but a problem with the electronic filing system prevented those filings, so counsel forwarded courtesy copies to my chambers by e-mail. Ms. Mendoza's counsel encountered the same problem with her attempt to file her Resistance To Defendant's Motion To Continue (docket no. 15) after regular business hours on November 14, 2013, so counsel for Ms. Mendoza also forwarded a courtesy copy of her Resistance to my chambers by e-mail. All three documents were electronically filed on November 15, 2013. By Text Order (docket no. 16), I set telephonic oral arguments on Mr. Medina's Motion To Continue for November 15, 2013.
Mr. Medina's counsel sought a continuance on the ground that she could not adequately prepare for the hearing on November 18, 2013, when she had not been retained and had not had an opportunity to meet with Mr. Medina until November 14, 2013. At the oral arguments, however, Mr. Medina's counsel had difficulty identifying any relevant evidence that she might be prevented from presenting on Mr. Medina's behalf, if the hearing went ahead as scheduled.
Whether to grant or deny a motion to continue is reviewed for abuse of discretion. See Vasquez v. Colores, 648 F.3d 648, 652 (8th Cir. 2011). In a case pursuant to the 1980 Hague Convention and ICARA, the district court does not abuse its discretion in denying a motion to continue in light of "the underlying circumstances, " including the prejudice that a petitioning parent will suffer from continued delay, and "the professed goal of expediency in Convention proceedings." Vasquez, 648 F.3d at 652. Mr. Medina was served with the Verified Complaint and Temporary Restraining Order setting the consolidated trial and preliminary injunction hearing ten days before the hearing date and, although that is a relatively short time, I found that it was not unduly short in light of "the professed goal of expediency in Convention Proceedings." Id. On the other hand, I found that there was little risk of flight or evasion of this action for return of the children, where Mr. Medina had promptly responded to the Temporary Restraining Order by surrendering the children's passports and travel documents to the Clerk of Court, he and the children were living with his parents, he is employed in this District, and the children are attending preschool and school, respectively, in this District. Ms. Mendoza's counsel also represented that mitigation of concerns about evasion of the proceedings reduced the potential prejudice to Ms. Mendoza of a delay of the proceedings, particularly if arrangements could be made for her to have telephone contact with her children while these proceedings were pending. Therefore, while I denied a continuance of the November 18, 2013, consolidated trial and preliminary injunction hearing, I did leave open the possibility that, if Mr. Medina made an adequate offer of proof that there was relevant evidence that he would be able to offer in further proceedings, a second "episode" of the consolidated trial and preliminary injunction hearing would be scheduled for November 26, 2013.
Also, because any concerns that Mr. Medina might flee from the District with the children had been substantially mitigated, and because I found it appropriate to avoid any unnecessary disruption to the children's current routine while this matter is pending, I concluded that Mr. Medina would not be required to provide for the presence of the children at the consolidated trial and preliminary injunction hearing, although I did encourage the parties to work out arrangements for Ms. Mendoza to have telephone contacts with the children. Similarly, where Ms. Mendoza's counsel represented that Ms. Mendoza's designee would not be able to return the children to Mexico immediately, if I ordered such relief, I also excused Ms. Mendoza's designee from attending the consolidated trial and preliminary injunction hearing.
4. The consolidated trial and preliminary injunction hearing
At the consolidated trial on the merits and preliminary injunction hearing, Ms. Mendoza appeared by videoconference and was represented by Jessica Jo Taylor of Iowa Legal Aid in Des Moines, Iowa. Mr. Medina appeared personally and was represented by Elizabeth Rosenbaum from Sioux City, Iowa. I was very impressed with both attorneys' ability to marshal the evidence and to make a thorough and effective presentation of that evidence in the limited time frame these expedited proceedings required.
At the first day of the consolidated trial and preliminary injunction hearing on November 18, 2013, Ms. Mendoza reoffered, and I admitted by agreement (or, in the case of Exhibit G, over Mr. Medina's objections), Exhibits A through V attached to Ms. Mendoza's Verified Complaint. She also offered the testimony, via videoconference from Mexico and through an interpreter, of Ms. Mendoza herself; Dr. Juan Jose Garcia Nuche, who testified that he was one of the children's physicians in Mexico; Reyna Colecio Pantoja, the director of the preschool in Mexico attended by one of the children; and Maria del Rosario Pantoja Cantera, the director of the daycare in Mexico attended by the other child.
When it became clear, at the conclusion of the first day of the consolidated trial and preliminary injunction hearing on November 18, 2013, that the parties had more evidence to present, I set a second day of the consolidated trial and preliminary injunction hearing for November 26, 2013. On November 22, 2013, however, with the agreement of the parties, I entered an Order (docket no. 23) resetting the second day of the consolidated trial and preliminary injunction hearing for December 5, 2013, in order to accommodate a personal matter of considerable importance to counsel for one of the parties.
On November 27, 2013, I entered an Order (docket no. 24) regarding possible disposition after the second day of the consolidated trial and preliminary injunction hearing. Specifically, I indicated in that Order that, contrary to my initial indications, I would not rule from the bench, but would file a written ruling within days of the conclusion of the consolidated trial and preliminary injunction hearing. I also explained that, if I ordered the return of the children to Mexico, as requested by Ms. Mendoza, I would not order their return immediately, but neither would I stay such an order pending appeal. Rather, I would stay any order for return long enough for Mr. Medina to file an appeal and to attempt to obtain a stay pending appeal from the Eighth Circuit Courts of Appeals. I also explained that, even if I decided to grant Ms. Mendoza the requested relief of return of the children to Mexico, I would not order the immediate transfer of the children to the custody of Ms. Mendoza or her designee, nor was it necessary for the children to be personally present at the conclusion of the consolidated trial and preliminary injunction hearing or for Ms. Mendoza or her designee to be personally present to take immediate custody of the children. I indicated that I would continue the injunction on removal of the children from the jurisdiction of the court and retention of their travel documents by the Clerk of Court and would also enjoin Mr. Medina to permit reasonable telephone contact by Ms. Mendoza with the children during the period of any stay or until this court or an appellate court ordered otherwise.
On the second day of the consolidated trial and preliminary injunction hearing on December 5, 2013, Ms. Mendoza presented, again via videoconference from Mexico and through an interpreter, the testimony of her mother, Silvia Aguilar Mendoza. Mr. Medina offered, and I admitted with the agreement of the parties, his Exhibits 1 through 31 (some of which had been amended), and Ms. Mendoza offered, and I admitted, supplemental Exhibits W, X, and Z. Mr. Medina offered the testimony of his mother, Lucina Medina, in person, but through an interpreter, and his own testimony in English. Ms. Mendoza then testified in rebuttal, again by videoconference from Mexico and through an interpreter.
B. Initial Findings Of Fact
In these proceedings, I was not going to determine who was the better parent, the custody of the children, or the best interests of the children, so that the most important evidence here was not necessarily the same as the most important evidence in more common domestic relations litigation. Rather, as explained in more detail, below, proceedings under the 1980 Hague Convention and the ICARA are "not designed to resolve underlying custody disputes, but rather to ensure that such disputes are adjudicated in the appropriate jurisdiction." Acosta v. Acosta, 725 F.3d 868, 875 (8th Cir. 2013) (internal citations omitted). Consequently, I set forth here only the facts that I find are most relevant to the determination of issues properly before me or necessary to put those issues in context.
1. The parties' marriage and the births of their children
I find that the parties were married on September 15, 2006, in Celaya, Guanajuato, Mexico. At the time, Ms. Mendoza was a Mexican citizen, but Mr. Medina had been living in the United States since he was about five years old, he had been a naturalized United States citizen since September 17, 2004, and he had met Ms. Mendoza while on vacation in Mexico. Mr. Medina has lived in Storm Lake, Iowa, with his parents, for most of the last 25 years, his father has been employed there that entire time, and Mr. Medina has also been employed there for several years.
Ms. Mendoza gave birth to the parties' first child, K.G.M.A., a daughter, in 2007, and their second child, M.K.M.A., also a daughter, in 2009, both in Celaya, Guanajuato, Mexico. The parties have a third daughter, K.V.M.A., who was born in 2011, but who has remained in the custody of Ms. Mendoza in Mexico. The parties' two older children are United States citizens, because their parents obtained a Consular Report of Birth Abroad for each of them from the United States Consulate in Mexico, but the parties did not obtain a Consular Report of Birth Abroad for their youngest child, K.V.M.A., and that child has remained in Mexico at all times. Mr. Medina never attempted to obtain papers for Ms. Mendoza to enter the United States as his wife. Mr. Medina explained that he had not done so, because he thought he should not be hasty about doing so, where he had heard rumors that his wife was a golddigger- notwithstanding that he had three children with her over five years. Ms. Mendoza testified that Mr. Medina had not done so in order to control her and to make it difficult for her to keep or contest custody of the children if they ever visited him in the United States.
2. Living arrangements and visits to the United States
After the parties married in 2006, Mr. Medina lived primarily in the United States. More specifically, he would live in the United States for about six months at a time, he would visit Ms. Mendoza and the children in Mexico for about two months, then he would return to the United States alone for another lengthy period. During Mr. Medina's visits to and absences from Mexico, the children consistently lived with Ms. Mendoza in Mexico. During almost the entire time after of the parties' marriage, Ms. Mendoza lived with Ms. Mendoza's mother in her mother's house, although Ms. Mendoza paid rent to her mother. After the parties' children were born, they also lived with Ms. Mendoza and her mother when they were in Mexico. After M.K.M.A. was born, both of the older children attended daycare and preschool in Mexico and received regular medical care there. K.G.M.A. was also registered for and assigned to an elementary school in Celaya.
Ms. Mendoza alleged in her Verified Complaint that, until their allegedly wrongful retention in the United States, K.G.M.A. and M.K.M.A. had lived in the familial residence in San Juan de la Vega, Guanajuato, Mexico, and had left Mexico only once, for a pre-arranged visit with their father in the United States in 2011, shortly after the parties' third child was born. At the consolidated trial and preliminary injunction hearing, however, Ms. Mendoza admitted that she had visited Mr. Medina in Storm Lake, Iowa, from April 2009 through July 2009, with the parties' oldest daughter and while pregnant with their second daughter. She testified, and Mr. Medina did not dispute, that Mr. Medina arranged for Ms. Mendoza and K.G.M.A. to cross into the United States illegally. I also find that, in July 2009, Ms. Mendoza told Mr. Medina that she was going for a walk with K.G.M.A., but she actually returned to Mexico without his knowledge. Ms. Mendoza explained that she had left the United States because she was uncomfortable with Mr. Medina and his mother and had argued with them.
Although K.G.M.A. had visited the United States illegally in 2009, her only other visit to the United States prior to December 2012, and M.K.M.A.'s only visit to the United States prior to December 2012, had been for a pre-arranged visit with their father in the United States in 2011, shortly after the parties' third child was born. Ms. Mendoza alleges that, on that occasion, although the parties had agreed that K.G.M.A. and M.K.M.A. would only stay with Mr. Medina for two months, Mr. Medina kept the children in the United States, over Ms. Mendoza's objections, for eleven months. Mr. Medina disputes that he kept the children longer than the parties had agreed.
3. Separation of the parties
The parties separated permanently in July 2012. Ms. Mendoza testified that the separation came after Mr. Medina assaulted her. Ms. Mendoza and her mother, with whom Ms. Mendoza and the children were still living, told Mr. Medina that he had to leave because of the domestic abuse. Indeed, Ms. Mendoza testified that, prior to their separation, Mr. Medina assaulted her on a regular basis. Mr. Medina did not dispute the separation, but asserted that Ms. Mendoza's definition of "assault" was simply raising his voice. On August 22, 2012, Ms. Mendoza's mother reported to the Office of the Public Prosecutor of Guanajuato that Mr. Medina had assaulted her. See Verified Complaint, Exhibit Q (identifying Silvia Aguilar Mendoza as the "injured party, " and the date as August 22, 2012, notwithstanding that the Verified Complaint, ¶ 14, suggests that the report by the mother was in July 2012). Mr. Medina left the familial home in July 2012, but initially stayed in Mexico, prior to returning to the United States in September 2012.
There is no divorce decree or separation decree in the record, nor is there any written or judicially endorsed child custody agreement or decree. Rather, the only divorce proceeding initiated by either party was one filed by Mr. Medina in the Iowa District Court for Buena Vista County. Mr. Medina's Petition For Dissolution Of Marriage was filed on November 15, 2013, notwithstanding that Mr. Medina's counsel had sought a continuance of the November 18, 2013, consolidated trial and preliminary injunction hearing in this matter, based on her representation that she did not have enough time to prepare for the consolidated trial and preliminary injunction hearing. Mr. Medina's counsel admitted at the first day of the consolidated trial and preliminary injunction hearing that she had "felt that it was important to have another piece of evidence to show that it was [her] client's position that Iowa was the home state and thus establishing jurisdiction in Buena Vista County." Real Time Transcript from November 18, 2013, at 9:03 a.m.
4. The allegedly wrongful retention of the children
The factual matters that are really the crux of this case relate to Mr. Medina's allegedly wrongful retention of K.G.M.A. and M.K.M.A. in the United States after they came here to visit him in December 2012. Mr. Medina asserted that Ms. Mendoza had contacted him and demanded that he take the children, because she no longer loved them or wished to care for them. The only circumstantial evidence that Mr. Medina offered in support of this position were some text messages that the parties do not dispute that Ms. Mendoza sent to Mr. Medina on May 12, 2012, although the parties do dispute both the significance and the translation of these text messages. These text messages are shown below, with Mr. Medina's own translation, as offered in his Exhibit 13, on the left, and a translation for Ms. Mendoza, as offered in her Exhibit X, on the right:
Date/Time Sender Translation by Mr. Medina Translation for Ms. Mendoza 5/12/12, Ms. Mendoza: "Did you call me?" "Did you call me?" 11:48 a.m. Ms. Mendoza: "I don't love your daughters "I don't want your girls when you can come get them you want to come and get them 5/12/12, whenever you want here they here they are I am fed up with 3:00 p.m. are I am fed up with them this shit and I am tired." and sick of them." 5/12/12, Ms. Mendoza: "Hey love I am going inside "Hey love I am going inside in 9:36 p.m. in 20 min" 20...." [cuts off]
Mr. Medina testified that he and Ms. Mendoza thereafter arranged for the two older girls to come to the United States permanently, beginning in December 2012. In contrast, Ms. Mendoza describes the text messages as a momentary venting of frustration, but that she never agreed nor wanted the children to go to the United States permanently. I do not find that these text messages, by themselves, constitute consent by Ms. Mendoza to a permanent transfer of the two older children to the United States, nor is there sufficient other evidence for me to conclude that Ms. Mendoza ever consented to the permanent transfer of the children to Mr. Medina's custody in the United States.
What I do find is that the parties agreed that K.G.M.A. and M.K.M.A. would visit Mr. Mendoza, starting in December 2012. The parties arranged to meet at the border in Neuvo Laredo, Mexico, on December 18, 2012, and Mr. Medina sent Ms. Mendoza money for bus fare for her and the two older children to make the approximately twelve-hour bus trip to the border. Prior to the children's visit, Ms. Mendoza arranged for their absences of approximately six weeks from daycare and preschool, respectively, which I find demonstrates Ms. Mendoza's intent and understanding that the children were going for a visit of six weeks to two months, not for a permanent transfer.
The parties vehemently dispute precisely what happened at the border on December 18, 2012, and in the two days following. Ms. Mendoza contends that, when Mr. Medina and his mother, Lucina Medina, arrived, they told Ms. Mendoza that Mr. Medina planned to keep the children for at least six months, instead of returning the children in six or eight weeks, as previously agreed, and that Ms. Mendoza objected. Mr. Medina and his mother testified that there had been no prior agreement for a short visit by the children; rather, the agreement was for the permanent transfer of the two older children to the United States. They testified that Ms. Mendoza suddenly reiterated her prior demands that Mr. Medina again take ...