Forced Return of Kids Blocked

A battered woman granted child custody in a Mexican divorce can’t be forced to return the children from San Diego, even though she promised not to take them from Mexico without the father’s consent, a federal appellate court ruled Wednesday.

The case, decided by the U.S. 9th Circuit Court of Appeals, is likely to spur further debate on global child-custody disputes. Judges in Britain ruled the other way in a comparable case.

The decision has major ramifications “for victims of domestic violence who are crossing international borders fleeing” such violence with their children, said San Diego attorney Tulin D. Acikalin, one of the mother’s lawyers.

But Victor Mordey, the Chula Vista lawyer who represents the father, said he has a valid order from a San Diego County Superior Court crediting the Mexican court order. Consequently, Mordey said, the father is still entitled to take his children back to Mexico under the Uniform Child Custody Jurisdiction and Enforcement Act.

The mother, Rosa Teresa Gutierrez, fled Mexico with her children after her husband allegedly abused her physically, according to the opinion. Under a 2000 divorce from a Jalisco, Mexico, family court, her husband, Eduardo Arce Gonzalez, got visitation rights. Gutierrez, who was awarded physical custody, agreed not to take the two children from Mexico without Arce’s consent.

But when the abuse continued, the mother, without telling Arce, took the children to San Diego, according to the opinion. Arce filed a lawsuit there seeking the return of the children.

He cited The Hague Convention, a 1986 treaty signed by 51 countries, including the United States and Mexico. It is designed to secure the return of children wrongfully taken by a parent from one country to another, often in hope of obtaining a more favorable custody decision in the second country.

The key legal issue was whether the husband’s visitation rights amounted to custody rights under the treaty, said 9th Circuit Judge Stephen Reinhardt in his 24-page ruling.

The Convention clearly gives primacy to a parent who has custody, as opposed to a parent who has been granted visitation rights, according to the decision.

Therefore the clause in the divorce limiting movement of the children “does not transform Arce’s visitation rights into custodial rights under the Convention,” Reinhardt wrote. Judges A. Wallace Tashima and Stephen S. Trott joined in the opinion.

“The drafters of The Hague Convention decided that only custodial parents” had the right to gain forceful return of their children from another country, said Gutierrez’s co-counsel, Rose M. Kasusky of Casa Cornelia, a nonprofit organization that represents immigrants and battered women in San Diego.

The trial judge, U.S. District Judge M. James Lorenz, earlier concluded that the children had been wrongfully removed in violation of Arce’s custody under the Convention, and that Gutierrez had failed to establish any affirmative defenses that would prevent their return.

Lorenz ordered that the children be returned but stayed his order pending appeal, acknowledging that the exact nature of Arce’s rights posed “a difficult legal question that neither the 9th Circuit or the U.S. Supreme Court has ruled upon.”

In the interim, Gutierrez applied for and was granted political asylum in the United States. However, the Immigration and Naturalization Service has challenged the decision, which is pending before the Board of Immigration Appeals.

In addition, San Diego County Superior Court Steven R. Denton issued a ruling in May recognizing the Mexican divorce decree, which says that the children cannot be removed from Mexico. Mordey, the father’s attorney, said he believes that the father has the right to take the children back to Mexico.