Rodriguez v. Noriega

Background

Jesus Rafael Roman Rodriguez alleged that Maria Luisa Sanchez Noriega wrongfully removed their child, R.R.S., from Mexico to the United States. Father sought R.R.S.’s return to Mexico so that custody issues could be decided by a court there. Mother opposed the petition and sought to keep custody of R.R.S. in Minnesota. Mother represented herself; Father was represented by counsel.

R.R.S. was born in Culiacan, Sinaloa, Mexico, in 2018 and lived there until Mother took her from Mexico on May 11, 2021. Father had told Mother that he did not authorize the removal. Mother and R.R.S. first went to Texas and later moved to St. Paul, Minnesota, where they had lived since the summer of 2022. R.R.S. attended school and daycare in St. Paul and received therapy and other care there. She has a disability affecting her speech, gross motor skills, and balance.

Father filed the return petition on December 29, 2023, under the Hague Convention on the Civil Aspects of International Child Abduction, the International Child Abduction Remedies Act, and Minnesota’s Uniform Child Custody Jurisdiction and Enforcement Act. After an evidentiary hearing, the court issued this opinion and order.

Legal Framework

The Hague Convention generally requires a child to be returned to the country where the child normally lived when the child was wrongfully removed or kept in another country. These proceedings decide where custody questions should be handled; they do not decide which parent should ultimately receive custody.

Father had to prove, by a preponderance of the evidence—meaning that the evidence made the point more likely true than not—that:

Mother raised two defenses. First, she argued that returning R.R.S. would create a grave risk of physical or psychological harm or place R.R.S. in an intolerable situation. Mother had to prove that defense by clear and convincing evidence, a higher standard meaning highly probable. Second, the court understood Mother’s statement that R.R.S. was well adapted in Minnesota as raising the defense that R.R.S. had become settled in her new environment. Mother had to prove that defense by a preponderance of the evidence.

Wrongful Removal

The court found that Father met his burden. The evidence showed that R.R.S. lived in Culiacan from birth until her removal, and the court found no indication that she lived elsewhere before then. The court therefore found that Mexico was her habitual residence.

The court also found that Father had custody rights under Sinaloa law. That law provides that parents exercise parental authority over their children and that, when separated, both parents continue to perform their parental duties. The court concluded that these rights qualified as custody rights under the Hague Convention.

Finally, the court found that Father was exercising his parental rights. Father testified credibly that he saw R.R.S. every day before the removal. Mother agreed that he saw R.R.S. at least once every three weeks. Father also continued communicating with R.R.S. by video call nearly every day after the removal. The court concluded that this regular contact was enough to show that Father was exercising his rights.

Grave-Risk Defense

The court rejected Mother’s grave-risk defense. Mother pointed to organized crime and violence in Sinaloa. She testified about violence affecting her family and about robberies and other dangerous events she had experienced while working at a service station. Father testified that he believed R.R.S. would be safe in Culiacan.

The court recognized that violence and organized crime in Sinaloa were serious concerns. But it found that the evidence did not show that R.R.S. had ever been directly or specifically threatened or harmed, or that any person or group would target Mother or R.R.S. if they returned. The court concluded that Mother had not shown a high probability that R.R.S. would face serious physical or psychological harm after returning.

Well-Settled Defense

The court also rejected the well-settled defense. R.R.S.’s consistent attendance at school and daycare in St. Paul, and the therapy she received through school, supported Mother’s position. But the court found that other circumstances did not establish that R.R.S. was well settled there.

The court noted that R.R.S. had lived in Texas before moving to Minnesota; the record did not show how long she had lived in her current St. Paul apartment or how long Mother intended to remain there; and R.R.S. had no church, extracurricular, or other organization-based connections in St. Paul. The record also gave limited information about her friendships, and she had no relatives in Minnesota apart from Mother and her half-brother. The court further considered Mother’s and R.R.S.’s lack of lawful immigration status as a factor weighing against the defense, although it did not treat that factor as decisive by itself.

The court concluded that the evidence favoring the well-settled defense was outweighed by the lack of broader community and family connections and by the lack of lawful immigration status. It therefore found that Mother had not proved that R.R.S. was well settled in St. Paul.

Alternative Discretionary Ruling

The court stated that even if the well-settled defense applied, it would still order R.R.S. returned to Culiacan. The court found that Father’s delay in pursuing the return was not his fault because of bureaucratic delays, the COVID-19 pandemic, and Mother’s efforts to conceal R.R.S.’s location. The court also found that R.R.S. would have a stable, supportive, family-centered reception in Culiacan. Father was capable of caring for her, had stable employment and a home, and had extended family available to help care for her.

The court distinguished the grave-risk defense: it stated that if Mother had proved that defense, it would have denied Father’s petition.

Order

Judge Tostrud granted Jesus Rafael Roman Rodriguez’s verified petition for R.R.S.’s return under the Hague Convention. The order required R.R.S. to be returned to Culiacan, Sinaloa, Mexico, no later than June 7, 2024. Unless the parties agreed otherwise, the order placed the removal expenses on Mother. The court directed that judgment be entered accordingly.