Sandoval Delgado v. Diaz Marquez

Background

This pretrial order concerns Sandoval Delgado’s petition seeking the return of JASD to Mexico under the Hague Convention on the Civil Aspects of International Child Abduction. Sandoval Delgado alleges that JASD was wrongfully removed from his habitual residence in Mexico in violation of his custody rights.

The parties agreed that Sandoval Delgado established the elements of his claim under Article 3. The undisputed facts were that Diaz Marquez removed JASD from Mexico on April 21, 2022; Mexico was JASD’s habitual residence; the removal violated Sandoval Delgado’s custody rights under Mexican law; and Sandoval Delgado was exercising those rights when the removal occurred.

Defenses Remaining for Trial

Diaz Marquez asserted defenses under Articles 12 and 13(b) of the Hague Convention.

For the Article 12 defense, Diaz Marquez argued that the court should not order JASD’s return because Sandoval Delgado waited too long to file and JASD is now settled in the United States. The court found as a matter of law that Sandoval Delgado filed his petition on October 6, 2023, more than one year after JASD’s removal. The parties disputed whether JASD is settled in the United States, so the court scheduled evidence on that issue for trial. Diaz Marquez must prove this defense by a preponderance of the evidence.

For the Article 13(b) defense, Diaz Marquez argued that returning JASD would expose him to a grave risk of physical or psychological harm. The court stated that the parties agreed violence or threats of violence by one parent against the other may establish such a risk, particularly if the child witnessed the conduct. The court therefore did not need expert testimony about the effects of intimate-partner abuse or violence on children. Other factual issues concerning the risk of harm remained for trial. Diaz Marquez must prove this defense by clear and convincing evidence.

Sandoval Delgado indicated that he might propose protective steps, called ameliorative measures or undertakings, if the court ultimately finds that Diaz Marquez established the Article 13(b) defense. The court ordered him to file a supplemental statement describing those proposals by January 29, 2024.

Trial Procedures

Because the Article 3 elements were established, the court ordered Diaz Marquez to present the evidence supporting her defenses first. Sandoval Delgado would then present rebuttal evidence concerning those defenses.

The court permitted Diaz Marquez to call Verania Diaz Marquez and Arturo Marquez. Shannon Seeley, LCSW, and Josephine Salgado would not testify. The court permitted Sandoval Delgado to call Wilfredo Sandoval Delgado and Juana Ibeth Marquez Garcia, along with certain additional witnesses only as needed to rebut Diaz Marquez’s evidence and without duplication. Gerard Chambers, Psy.D., Ph.D., Gabriela Escobar Ferrer, Edgar Cesar Fortuna Rodriguez, and Carlos Arturo Flores Ibarra would not testify.

The court set the bench trial for January 31 through February 2, 2024, subject to change by the court, and allotted each side up to six hours for evidence, optional openings, closing arguments, and evidentiary objections. The order also addressed exhibit lists, document translations, videoconference testing, exclusion of witnesses, courtroom recording and photography, JASD’s attendance, and advance notice concerning witnesses and exhibits.

Other Rulings

The court denied Sandoval Delgado’s request for supervised visitation with JASD. It did not order Diaz Marquez to surrender her or JASD’s passports. The court allowed Sandoval Delgado to submit a written passport-related request by January 26, 2024, describing any travel restrictions imposed by U.S. or Mexican courts and any requests made to U.S. or Mexican immigration authorities concerning JASD’s ability to travel.