A Mexican mother, whose ex-boyfriend temporarily withheld their twin, eight-year-old daughters from her in the U.S., cannot use the Hague Convention to compel him to return the girls from Arizona to Mexico, a federal appeals court held Friday.
The 9th U.S. Circuit Court of Appeals said the Hague Convention, which governs international disputes over which country should be used to resolve cases, does not apply to decisions on the underlying merits of a case. The panel declined to apply its international child abduction provisions to this custody dispute.
Blanca Reyes Valenzuela, mother of the twin girls born in Mexico, cannot have her daughters returned to her from Arizona, where they live with their father, Steve Michel, said Judge John T. Noonan. The decision affirms a lower court ruling.
Valenzuela and Michel lived together in Nogales until their twins were one year old. In 2009, they agreed that Michel should move just 10 miles away to Arizona, to avoid crossing the international border every day for work.
To give their daughters the benefit of the American educational, medical, and government systems, Valenzuela and Michel also decided to co-parent by “shuttle custody”: the girls were with Valenzuela from Monday through Wednesday, and with Michel from Thursday through Sunday.
The couple operated by this schedule for one year and four months, until they broke up in September 2010, at which time Valenzuela kept the twins in Mexico for two months, denying Michel any contact with them. Later, the couple agreed to divide custody evenly for two months, and then Valenzuela withheld the children for another month, before Michel took them back to Arizona, texting Valenzuela that he would not bring them back to Nogales.
Valenzuela sought protection under the Hague Convention, which governs choice of location to resolve international disputes. The Convention does not apply to any decision on the merits.
In upholding the decision to keep the children in Arizona and have the underlying custody case heard there, Noonan had to decide which of the two countries was the girls’ “habitual residence.”
Noonan relied on the parents’ “shared intent” regarding the twins’ residence. He found a shared intent between Valenzuela and Michel to abandon Mexico, based on their short-term plans to secure U.S. government assistance for their daughters, and their longer-term plans to educate the children in the U.S.
At the time of this decision, Valenzuela and Michel lived across two countries, but only ten miles apart — “by far the closest of any two parents in all of the habitual residence cases brought under the (Hague Convention) worldwide,” Noonan noted.
Noonan was joined by Judges Stephen Reinhardt and Andrew Hurwitz.
Case: Valenzuela v. Michel, No. 12-17205.