United States District Court, M.D. Tennessee, Nashville Division
MEMORANDUM AND ORDER I.
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. 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.
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.
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.
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.
FINDINGS OF FACT
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
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
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.
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
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.
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.
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.
CONCLUSIONS OF LAW
The Hague ...