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Hernandez v. Cardoso

United States Court of Appeals, Seventh Circuit

December 22, 2016

John Erickson Coahuila Hernandez, Plaintiff-Appellant,
v.
Irma Benuez Cardoso, Defendant-Appellee.

          Argued December 7, 2016

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. l:15-cv-11460 - Sharon Johnson Coleman, Judge.

          Before Bauer and Flaum, Circuit Judges, and Shadid, Chief District Court Judge [*]

          Shadid, Chief District Court Judge.

         Plain tiff-Appellant John Erickson Coahuila Hernandez ("Hernandez") and Defendant-Appellee Irma Benitez Cardoso ("Cardoso") are both citizens of Mexico. They met sometime in 2001 and began cohabitating sometime later that year. They resided in Mexico until December 15, 2014. They are the biological parents of two children: A.E., born in 2008, and M.S., born in 2002.

         Cardoso claims to have left Mexico with A.E. and M.S. in December of 2014 to escape abuse from Hernandez and protect the children. Subsequently, Hernandez learned of Cardoso's location in Chicago, Illinois, and on July 17, 2015, filed an application with the Mexican Central Authority for the return of A.E. pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (hereinafter, "the Convention"). The Mexican Central Authority transmitted Hernandez's Application to the United States.

         In August of 2015, Cardoso agreed to return M.S. to Hernandez. Hernandez also requested the return of A.E. but Cardoso refused.

         On December 18, 2015, Hernandez filed a Verified Petition for Return of Minor Child to Mexico and Issuance of a Show Cause Order. On February 29, 2016, the District Court held an evidentiary hearing, at which Hernandez, Cardoso and Alma Cardoso, Cardoso's sister, testified. Following the testimony of all witnesses, the Court sua sponte, and without objection from either party, took testimony from the child, in chambers, and outside the presence of counsel or the parties. After questioning of the child, the District Court allowed both parties until March 14, 2016, to file objections to any questions posed to the child. Neither party filed any such objections.

         Following the evidentiary hearing, the District Court allowed briefing and then entered its Order on July 13, 2016. In its Order, the District Court found that Cardoso testified credibly that Hernandez would hit her in the presence of A.E. with the intention of having A.E. witness the abuse of his mother. The District Court also specifically noted it observed a significant change in the demeanor of A.E. when the child discussed Hernandez, the domestic violence and the possible return to Hernandez's custody. The District Court found that Cardoso and AE's testimony about the domestic violence, taken as true, provides clear and convincing evidence that there is a grave risk of physical or psychological harm to A.E. if he is returned to Hernandez's custody. This appeal followed.

         The Hague Convention "was adopted in 1980 in response to the problem of international child abduction during domestic disputes." Abbott v. Abbott, 560 U.S. 1, 8 (2010). "The United States is a contracting state to the Convention, and Congress has implemented its provisions through the International Child Abduction Remedies Act (ICARA) ... 42 U.S.C. § 11601 et seq." 560 U.S. at 5. As the Court noted in Abbott, "[t]he Convention provides that a child abducted in violation of 'rights of custody' must be returned to the child's country of habitual residence, unless certain exceptions apply. Art. 1 S. Treaty Doc. No. 99-11, at 7." 560 U.S. at 5. The intention of the Hague Convention is "to secure the prompt return of children wrongfully removed to or retained in any Contracting State ... to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States. Art. 1, Treaty Doc. at 7." Abbott, 560 U.S. at 7.

         ICARA instructs a person who seeks a child's return to file a petition in state or federal court and further instructs the court hearing the case to decide it in accordance with the Hague Convention. See 42 U.S.C. §§ 11603(a), (b), (d). The elements to the prima facie cause of action for return are: the child was wrongfully removed or retained; the child was removed from his or her habitual residence; there was a breach of the rights of custody under the law of the child's habitual residence; the left-behind parent was exercising those custody rights; and the child is under the age of sixteen. If the child in question has been wrongfully removed or retained within the meaning of the Convention, the child shall be promptly returned unless an exception is applicable. See 42 U.S.C. § 11601(a)(4).

         The Hague Convention sets forth several affirmative defenses. The affirmative defense relevant to this proceeding is a grave risk of exposure to serious physical or psychological harm. Article 13(b) provides that "when there is a grave risk that the child's return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation, the automatic return required by the Convention should not go forward." Norinder v. Fuentes, 657 F.3d 526, 533 (7th Cir. 2011). Here, Cardoso admits that Hernandez did not agree that she could permanently relocate the United States with the children.

         Because Cardoso did not dispute that Hernandez established a prima facie case for wrongful removal, the District Court correctly limited its findings to the "grave risk of harm" exception raised by Cardoso.

         This Court reviews the District Court's findings of fact for clear error. Norinder, 657 F.3d at 533. Rule 52(a)(1) of the Federal Rules of Civil Procedure requires the judge to "find the facts specially and state ...


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