United States District Court, M.D. Alabama, Eastern Division
MYRON H. THOMPSON, District Judge.
This is a case about a father's alleged abduction of his children from their mother and home in Mexico to his home in Alabama. Petitioner María Magdalena Martinez González asserts in a petition to this court that her estranged husband, respondent Thomas David Preston, wrongfully removed their children from Mexico to the United States in violation of the Hague Convention on the Civil Aspects of International Child Abduction as well as the federal legislation implementing the Convention, the International Child Abduction Remedies Act, 22 U.S.C. §§ 9001-9011 (formerly 42 U.S.C. §§ 11601-11610). This court has original jurisdiction over her petition pursuant to 22 U.S.C. § 9003(a) and 28 U.S.C. § 1331.
The court previously issued a temporary restraining order and preliminary injunction prohibiting Preston and anyone cooperating with him from removing the children from Alabama while the court decides the case.
Martinez's petition is now before the court for a final decision on the merits. She seeks the return of her children to her home in Ciudad Juárez so that a Mexican court can determine custody under Mexican law. Based on the evidence presented at a hearing, in which Martinez (by live video), Preston, and others testified, the court finds in favor of Martinez.
Petitioner Martinez is married to respondent Preston. They have two children together, a four-year-old son and a two-year-old daughter. Both children were born in Ciudad Juárez, in the state of Chihuahua, Mexico. Martinez is a Mexican citizen, and Preston is an American citizen.
Preston and Martinez were married in 2010, and their first child together, a son, was born in early 2011. They separated a few months later, and Preston took their son with him to Alabama. Preston contends that he left with Martinez's goodwill, but Martinez maintains that she never gave him permission to take away their son. Shortly after they left, Martinez filed a criminal complaint against Preston for abducting their son, but Preston refused to return to Mexico or to allow Martinez to see their son for six months. He finally returned to Juárez with their son when he learned that Martinez was pregnant with their daughter. After their daughter was born in 2012, the family lived together in Juárez again, though Preston frequently traveled away from home for his job as a truck driver.
When they lived together in Juárez, they shared custody of the children. Martinez sometimes worked at restaurants, bars, and factories, though she was not always employed outside the home; Preston worked for several trucking companies. As a result, the children were sometimes in the care of a local daycare or were at home under the supervision of one of Martinez's older children.
At the hearing, Preston testified that, while he was living in Mexico, he inquired with local authorities about initiating judicial proceedings to gain sole custody of the children. However, he contends that he was told that, because he did not have resident status in Mexico, he was not able to initiate family-court proceedings. Additionally, he testified that he was dissuaded from complaining to Mexican officials for fear of the children being taken into Mexican custody. So, Preston testified, he took matters into his own hands.
In mid-April 2014, Preston convinced Martinez to sign two purported legal documents that he drafted on his home computer, both written in English. The parties dispute the extent of Martinez's English-language skills and whether she understood these documents.
The two documents Preston presented to Martinez were titled "Termination of Parental Rights Form" and "Travel Consent Form." Martinez testified that Preston told her that the documents were necessary for the family to immigrate to the United States. According to Preston, the purpose of the documents was to memorialize Martinez's consent - which he contends that she had given him verbally - to her forfeiture of all her custody rights over the children and to his taking the children to the United States. Though he has a firm grasp of the Spanish language, Preston testified that he drafted the documents in English so that they would be recognized and understood in the United States.
The "Travel Consent Form" stated that Martinez allowed her two children "to travel and relocate with their father" to the United States "for a indefinite period of time." Travel Consent Form (doc. no. 4-3), at 2. The "Termination of Parental Rights Form" stated that Martinez "wish[ed] to terminate all parental rights" to her children because she was "unfit and unable to care for them, due to [her] alcoholism and continued drug use." Termination of Parental Rights Form (doc. no. 4-2), at 2. The form also states that Martinez agreed not to have any contact with the children until they turned 18 and that Preston would have sole custody. Id . Each forms bears both Martinez's and Preston's signatures.
Martinez testified that she signed both of these documents at their home in Juárez and that no notary was present. Preston testified that these documents were signed in the presence of a notary on an international bridge' dividing Ciudad Juárez, Mexico and El Paso, Texas. The "Travel Consent Form, " though not the "Notice of Termination of Parental Rights Form, " bears the notary stamp of a Texas-based notary. Preston contends the notary refused to notarize the "Termination" form because it was a legal document that needed to be authorized by a court.
On April 29, 2014, two weeks after signing these documents, Martinez came home from work to discover that Preston had left with the two children and their belongings. Martinez immediately called Preston's cell phone to find them, but he did not answer. She continued to call, and she also reached out to Preston's mother. The next day, she learned by phone that Preston had taken the children to his mother's home in Lanett, Alabama. Martinez contends that Preston and his mother refused to allow Martinez to speak with the children.
Three days later, Martinez filed a criminal charge in Mexico against Preston for abduction of the children. Shortly thereafter, Martinez went to the Mexican Ministry of Foreign Affairs to report the abduction, and she began to assemble her Hague Convention petition. She submitted her statement to the Mexican Ministry on May 12, 2014; after its own internal investigation, the Mexican government forwarded her case to the United States Department of State, which helped Martinez find local Alabama counsel to initiate these proceedings.
A few weeks after he left with the children, Martinez spotted Preston back in Ciudad Juárez and alerted police. He was arrested, but he produced the purported travel and parental-termination documents for police, and he was released on bail. The authorities later showed Martinez the documents, which is when she learned what they really meant. In early June 2014, Martinez successfully petitioned for provisional custody of the children under Mexican law in the Bravos District family court of Chihuahua; Preston did not respond to these proceedings.
When Preston and the children arrived in Alabama, they moved in with Preston's mother in Lanett. After a few months, Preston rented a separate home on the same block as his mother's, and the children now reside there with Preston, unless he is traveling for work, in which case they stay with Preston's mother or a babysitter.
The Hague Convention on the Civil Aspects of International Child Abduction is an international treaty established to "secure the prompt return of children wrongfully removed to or retained in any Contracting State" and to ensure that, when child-custody disputes arise between parents or guardians across international borders, custody rights are respected between signatory countries. See Hague Convention on the Civil Aspects of International Child Abduction, arts. 1(a), 2, October 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89. Both the United States and Mexico are "Contracting States" to the treaty.
By facilitating the child's return to the parent left behind, the Convention restores the factual status quo before the child was wrongfully removed, so that any legal custody disputes will take place in the country of the child's habitual residence. See Baran v. Beaty, 526 F.3d 1340, 1344 (11th Cir. 2008) ("When a child has been wrongfully removed from his country of habitual residence, the Convention provides the non-abducting parent with a remedy of return, intended to restore the parties to the pre-abduction status quo and deter parents from crossing borders in search of a more sympathetic forum for child custody proceedings.").
In other words, Convention provisions do not regulate the substantive legal relationships between parents or families. Nor does the treaty allow a court to settle any custody dispute on the merits, unless it is determined that a child is not to be returned. Hague Convention, art. 16. Formal custody is to be determined later, by a court in the child's country of habitual residence. See Abbott v. Abbott, 560 U.S. 1, 20 (2010) ("The Convention is based on the principle that the best ...