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Gutierrez v. Quintino Sandoval

United States District Court, M.D. Tennessee, Nashville Division

July 18, 2019

GABRIEL ALFARO GUTIERREZ, Petitioner,
v.
BRENDA JANETH QUINTINO SANDOVAL, Respondent.

          MEMORANDUM AND ORDER I. INTRODUCTION

         This matter arose upon a Petition for Return of Child pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”), and the implementing legislation in the United States, the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. § 9001, et seq.[1] Petitioner Gabriel Alfaro Gutierrez requests that this Court enter an Order directing that the Parties' minor child, G.A.A.Q., be returned to Mexico. He alleges that the child's mother, Brenda Janeth Quintino Sandoval, wrongfully removed the child from the sovereign nation of Mexico sometime between October 27, 2017 and early November 2017. Docket No. 1. Mr. Gutierrez claims that he has rights of custody of the child under the laws of Mexico in that he is the child's natural father and was married to Ms. Sandoval, and that he was actually exercising these rights within the meaning of the Hague Convention at the time of the child's wrongful removal. Id. at 3-8.

         Ms. Sandoval, proceeding pro se, contends that Mr. Gutierrez was not exercising his custodial rights at the time that she left Mexico with G.A.A.Q., and that she previously consulted her attorney in Mexico, who told her that “there would not be any problem.” Docket No. 20-1, p. 1. She further contends that G.A.A.Q. does not want to be with his father, because his father bullies him about his weight and appearance and interrogates him about his mother's personal life. Id. She asserts that G.A.A.Q. is now present in a stable family that includes his stepfather and baby brother, and that he “can continue with his education, has more opportunities, and is in a safer environment here.” Id. at 1-2. In an initial hearing before the Court, Ms. Sandoval stated that her son did not want to return to Mexico.

         The Court held a bench trial in this matter on May 14, 2019. During the course of the trial, the Court took testimony from G.A.A.Q. in chambers, out of the presence of his parents and their attorneys. After the trial, the Parties were instructed to file proposed findings of fact and conclusions of law. Only Mr. Gutierrez did so, on June 18, 2019.

         Having reviewed Mr. Gutierrez's proposed findings of fact and conclusions of law, the record, the exhibits received into evidence, and the testimony of the witnesses, including their interests and demeanor, the Court enters the following Findings of Fact and Conclusions of Law. Except where the Court discusses different testimony on a specific issue, any contrary testimony on a specific matter has been rejected in favor of the specific fact found. Further, the Court omits from its recitation facts which it deems to be immaterial to the issues presented.

         II. FINDINGS OF FACT[2]

         Mr. Gutierrez and Ms. Sandoval married in 2003, and lived in Monterrey, Mexico. Their son, G.A.A.Q., was born in November 2003, and will be sixteen in November 2019. He is the only child of their marriage. He is a Mexican citizen with no other citizenship.

         The Parties separated in 2004 and never lived together again. They were legally divorced in 2012. G.A.A.Q. has always lived with Ms. Sandoval. Following the Parties' separation, by agreement, Mr. Gutierrez had visitation with G.A.A.Q. consisting of every Saturday for eight hours, plus additional time in 2012 and 2013; however, Mr. Gutierrez spent more time with G.A.A.Q. than was actually set forth in the Parties' agreement. Father and son had regular contact. Mr. Gutierrez also took his son on vacations and spent some holidays with him.

         In August 2017, G.A.A.Q. told his father that he did not want to have any more visitation with him. G.A.A.Q. did not like the way that his father asked him questions about Ms. Sandoval's personal life. Mr. Gutierrez and Mr. Gutierrez's mother (G.A.A.Q.'s grandmother) also made G.A.A.Q. feel uncomfortable with comments about his weight and the food that he was eating.

         Ms. Sandoval brought G.A.A.Q. to the United States in November 2017, to live with her, her new husband, and G.A.A.Q.'s half-sibling. After consulting with her Mexican lawyer, Ms. Sandoval was under the impression that she could legally bring G.A.A.Q. to the United States. She did not make any effort to contact Mr. Gutierrez to let him know that she was moving G.A.A.Q. out of the country or to seek his input on the decision.

         Mr. Gutierrez had no idea where his child was, and went through an extended period, lasting until December 2018, of trying to find G.A.A.Q. He repeatedly visited the house where G.A.A.Q. had been living with Ms. Sandoval and her parents and called all of the phone numbers he had for G.A.A.Q., Ms. Sandoval, and her parents. No. one answered, and no one ever contacted him to let him know his son's whereabouts, despite the fact that he has had the same phone number the entire time in question. Eventually, Mr. Gutierrez was notified by G.A.A.Q.'s school that his son had been withdrawn from the school. A letter from the school shows the date of withdrawal as October 27, 2017. Mr. Gutierrez desperately searched for G.A.A.Q., going to the extent of visiting hospitals and even the morgue.

         Mr. Gutierrez continued to investigate, using social networking and research, and eventually concluded that G.A.A.Q. was in Nashville, Tennessee. He filed his Petition for Return of Minor Child to Petitioner on October 10, 2018. It was not until the first scheduled court hearing in this case in December 2018 that he finally obtained a valid phone number from Ms. Sandoval. He had neither seen nor spoken to his son from August 2017 until that time.

         G.A.A.Q. will be sixteen in November 2019. He attends a local Nashville high school, and recently completed ninth grade with all A's. He has many friends at school. He gets along well with his mother, stepfather, and half-brother, with whom he lives. He does not keep in touch with anyone in Mexico and does not want to return to Mexico.

         III. CONCLUSIONS OF LAW

         A. The Hague ...


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