Sandoval Delgado v. Diaz Marquez

Background

Wilfrido Sandoval Delgado filed a petition under the Hague Convention on the Civil Aspects of International Child Abduction, as implemented in the United States by the International Child Abduction Remedies Act. He sought the return of his son, JASD, to Mexico, asserting that Verania Diaz Marquez wrongfully removed JASD from his habitual residence in Mexico.

Before trial, the parties agreed that Sandoval Delgado had established the elements of a wrongful removal under Article 3: Diaz Marquez removed JASD from Mexico on April 21, 2022; Mexico was JASD’s habitual residence at that time; the removal violated Sandoval Delgado’s custody rights under Mexican law; and Sandoval Delgado was exercising those rights.

Diaz Marquez raised defenses under Articles 12 and 13(b). The Article 12 defense applies when return proceedings begin more than one year after removal and the child is settled in the new environment. The Article 13(b) defense applies when return would create a grave risk of physical or psychological harm or otherwise place the child in an intolerable situation.

The court held a three-day bench trial from January 31 through February 2, 2024, and heard testimony from Diaz Marquez, members of her family, and Sandoval Delgado.

Article 12: Settlement in the United States

The court found that Sandoval Delgado filed the petition on October 6, 2023, more than one year after JASD’s removal. It then considered factors bearing on whether JASD was settled in the United States, including his age, the length and stability of his residence, school attendance, friends and relatives, community activities, and Diaz Marquez’s employment and financial stability.

JASD had lived continuously in Watsonville, California, for about 21 months by the date of the order. He attended Head Start and then kindergarten, had nearly perfect attendance, was doing well academically, had friends in the community, participated in swim lessons, and had a large extended family in the area. Diaz Marquez had also been employed full-time since June 2022 and was able to support herself and JASD. The court found that all but one factor supported settlement and that the community-activity factor was neutral.

The court concluded that JASD was settled in the United States. It also found no evidence that Diaz Marquez concealed JASD from Sandoval Delgado and concluded that her refusal to return to Mexico for custody proceedings did not justify ordering the return of a child who was settled in a new environment.

Article 13(b): Grave Risk of Psychological Harm

The court found that Diaz Marquez established this defense by clear and convincing evidence. It found that Sandoval Delgado had physically and emotionally abused Diaz Marquez on several occasions, including incidents in which JASD was present. The court also found that Sandoval Delgado threatened Diaz Marquez and members of her family and repeatedly threatened to take JASD away from his mother.

The court did not find clear and convincing evidence that returning JASD to Mexico would expose him to physical harm by Sandoval Delgado. It did find clear and convincing evidence of a grave risk of psychological harm. JASD had witnessed Sandoval Delgado beat Diaz Marquez, heard Sandoval Delgado say that he would never see his mother again, and was present when Sandoval Delgado threatened suicide. The court concluded that these events reflected a pattern of abuse and that JASD would likely face the risk of psychological harm again if returned to Mexico.

Discretion and Disposition

Even after finding a defense, the court had discretion under the Hague Convention to order JASD’s return. The court concluded that JASD’s interest in contact with Sandoval Delgado and family members in Mexico did not outweigh the factors supporting the Article 12 defense. The court also declined to impose proposed protective measures under Article 13(b), because Sandoval Delgado’s proposal did not address the risk of psychological harm and the parties had not proposed measures addressing that concern.

The court concluded that Diaz Marquez established both defenses: JASD was settled in California under Article 12, and returning him to Mexico would create a grave risk of psychological harm under Article 13(b). The court therefore denied Sandoval Delgado’s petition.