MENDOZA v. PASCUAL, CV 615-40. (2016)
Court: District Court, S.D. Georgia
Number: infdco20160121850
Visitors: 14
Filed: Jan. 20, 2016
Latest Update: Jan. 20, 2016
Summary: ORDER FOR RETURN OF MINOR CHILD TO MEXICO LISA GODBEY WOOD , Chief District Judge . Pending before the Court are the following three motions filed by the Petitioner: (1) Verified Petition Under the Hague Convention Seeking Return of Child to Petitioner in Mexico (Dkt. No. 1); (2) Motion for Summary Judgment (Dkt. No. 39); and (3) Motion for Civil Contempt for Violating Preliminary Injunction (Dkt. No. 51). The parties fully briefed the aforementioned Motions. Dkt. Nos. 57, 41, 44, 51, 56.
Summary: ORDER FOR RETURN OF MINOR CHILD TO MEXICO LISA GODBEY WOOD , Chief District Judge . Pending before the Court are the following three motions filed by the Petitioner: (1) Verified Petition Under the Hague Convention Seeking Return of Child to Petitioner in Mexico (Dkt. No. 1); (2) Motion for Summary Judgment (Dkt. No. 39); and (3) Motion for Civil Contempt for Violating Preliminary Injunction (Dkt. No. 51). The parties fully briefed the aforementioned Motions. Dkt. Nos. 57, 41, 44, 51, 56. T..
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ORDER FOR RETURN OF MINOR CHILD TO MEXICO
LISA GODBEY WOOD, Chief District Judge.
Pending before the Court are the following three motions filed by the Petitioner: (1) Verified Petition Under the Hague Convention Seeking Return of Child to Petitioner in Mexico (Dkt. No. 1); (2) Motion for Summary Judgment (Dkt. No. 39); and (3) Motion for Civil Contempt for Violating Preliminary Injunction (Dkt. No. 51). The parties fully briefed the aforementioned Motions. Dkt. Nos. 57, 41, 44, 51, 56.
This Court held a Merits Trial on January 19 and 20, 2016. At the conclusion of the trial, the Court found that Respondent wrongfully retained L.D.M. in the United States in violation of the Hague Convention, Article 3. The Court further held that L.D.M.'s pre-removal habitual place of residence was Mexico and that Respondent has proven none of the defenses to return under the Hague Convention and the International Child Abduction Remedies Act ("ICARA"), 22 U.S.C. §§ 9001-9011. The Court issued separate findings of fact and conclusions of law in that regard. Accordingly, the Court enters the following orders:
1) The Motion for Summary Judgment (Dkt. No. 39) was DENIED as disputed factual issues were presented. However, these issues were resolved in favor of Petitioner in the Merits Trial.
2) The Court DECLINES to hold Respondent in Civil Contempt (Dkt. No. 51). His violation of the Court's Preliminary Injunction was not shown to be willful, but the product of a misunderstanding. When confronted with his error, he immediately rectified it. Nevertheless, the Court takes into account this history of misunderstanding in fashioning the terms of this Return Order, to the extent that its terms leave little time for serial misunderstanding.
3) The Consulate General of Mexico WILL TAKE TEMPORARY CUSTODY of the minor child known for the purposes of this action as L.D.M. only for purposes of travel from the United States to Mexico, and the legal and physical custody will be transferred to L.D.M.'s mother, Petitioner Juana Egda Pacheco Mendoza, once the child arrives in Mexico.
4) Respondent, Rey David Moreno Pascual, WILL DELIVER L.D.M. to the Consulate General of Mexico at the United States District Court for the Southern District of Georgia, Statesboro Division, on January 21, 2016 at 9:00 a.m.
5) The Court's Clerk WILL PROVIDE L.D.M.'s Mexican and United States passports to the Consulate General of Mexico during the exchange of L.D.M. on January 21, 2016 at 9:00 a.m.
6) Once Respondent delivers L.D.M. to the Consulate General of Mexico, the Consulate General of Mexico shall return L.D.M. to Mexico, where physical and legal custody shall be transferred to Mrs. Juana Egda Pacheco Mendoza.
7) This Order is only a DETERMINATION of the issues presented to the Court under the Hague Convention and ICARA, 22 U.S.C. H 9001-9011. This Order is not a determination or adjudication of custody, visitation, allocation of parental responsibilities, determination of parenting time, or allocation of decision-making responsibility under any other law. Once L.D.M. is returned to Mexico, the parties§ rights are governed under the laws of Mexico and the State of Oaxaca.
8) The Court DEFERS RULING on the Petitioner's request that the Respondent pay her legal costs, fees, and expenses incurred to date as required by 22 U.S.C. § 9007. The Petitioner SHALL FILE, within 7 days, an itemization of all fees she seeks to recover, along with a brief explaining why she is entitled to costs, fees and expenses. The Respondent SHALL HAVE 3 days from the date of service of Petitioner's brief to show that such an award would be inappropriate.
9) The Court RETAINS JURISDICTION over this case for 30 days to permit any modification or enforcement of the Order.
SO ORDERED.
Source: Leagle
