Dominguez Ochoa v. Ochoa Perez

Background

Idalia Dominguez Ochoa and Marco Antonio Aragon Leon, identified in the opinion as the children’s mother and father, petitioned for the return of their two daughters, J.A.D. and W.Y.A.D., to Mexico. They brought the case under the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act.

The petition alleged that the children were born in Morelos, Mexico, and had spent their entire lives there before being retained in New York. The parents alleged that they retained parental and custody rights under Mexican law and were exercising those rights when the children were retained. The family had planned to move to New York together, but the father was detained for two months in a facility in Tucson, Arizona. The children were taken to the respondents, and the father later returned to Morelos, Mexico. The respondents allegedly refused the parents’ requests to return the children and cut off communication between the parents and children in or around July 2023.

The respondents moved to dismiss the amended verified petition, arguing that the parents had not adequately alleged a wrongful retention under the Hague Convention.

Legal standard

The Hague Convention generally seeks the prompt return of a child wrongfully removed from or retained outside the child’s usual home. To state an initial case for wrongful retention, a petitioner must adequately show that: the child’s usual home was one country and the child was retained in another; the retention violated the petitioner’s custody rights under the law of the child’s usual home; and the petitioner was exercising those rights, or would have been exercising them but for the retention.

At the motion-to-dismiss stage, the court treated the petition’s factual allegations as true and interpreted them in the parents’ favor.

Court’s analysis

The court applied a two-part test for determining the children’s habitual residence, meaning the place that was their usual home. First, it considered the parents’ shared intent. The allegations stated that the parents intended to move to the United States only as a family unit and that the children would return to Mexico if the family could not move together. Relying on that alleged intent, the court concluded that the petition supported finding that Mexico remained the children’s habitual residence.

Second, the court considered whether the children had become so acclimated to New York that they acquired a new habitual residence. The court stated that the allegations did not show that the children had become acclimated to New York in a way that overcame the parents’ shared intent. It also noted that courts should be cautious about allowing a child’s time in a new location to override the parents’ shared intent.

The court then considered whether the alleged retention violated the parents’ custody rights and whether the parents were exercising those rights. Based on the petition’s allegations about parental authority under Mexican law—including physical custody, care, and the choice of the children’s place of residence—the court concluded that the parents had adequately alleged a violation of their custody rights. The court also concluded that the allegations that the parents sought the children’s return so they could continue caring for them adequately alleged that the parents were exercising, or would have been exercising, their parental rights.

Disposition

The court held that the allegations, if proven, established an initial case for wrongful retention under the Hague Convention. It denied the respondents Wendi Ochoa Perez, Elias Sanchez Corona, Isaias Sanchez Ochoa, and Irene Trujilo Ascenio’s motion to dismiss the parents’ amended verified petition. Judge Nelson S. Roman directed the parties to appear for a teleconference on April 10, 2025, and stated that an evidentiary hearing might be needed in the future. The opinion did not order the children’s return at this stage.