Before the Court is Rocio Jatsuel Chavez Rodriguez's Amended Verified Petition for Return of Child to Petitioner ("Petition"). The Petition is brought pursuant to the October 25, 1980 Hague Convention on the Civil Aspects of International Child Abduction (the "Hague Convention" or "Convention") and the International Child Abduction Remedies Act, 42 U.S.C. §§ 11601--11610 (2011) ("ICARA"), which implemented the Convention in the United States. The Court held a hearing on October 31, 2012, and heard the testimony of Rodriguez, Respondent Phillip A. Sieler, Jr., and an expert on Mexican law. After considering the filings of the parties and the evidence presented at the hearing, it is ordered that both children, P.A.S.C. and C.J.S.C.*fn1 , shall be promptly returned to Mexico, the children's habitual residence, so that a Mexican court may consider the question of custody.
Rodriguez is a Mexican citizen who has resided in the State of Nayarit, Mexico, most of her life. She recently moved to the State of Jalisco. Sieler is a United States citizen and currently resides in Kalispell, Montana, in the United States. Rodriguez and Sieler met in Nayarit in 1996 when Sieler began doing mission work there through a church. They were married by the church there on May 5, 1999, and were married legally in Kalispell on December 4, 1999. For the next several months, Rodriguez and Sieler lived in Kalispell with Sieler's parents . During this time, Rodriquez was granted temporary residency in the United States, and the couple raised funds from local churches so that they could return to Nayarit to build a church.
Rodriguez and Sieler returned to Nayarit in September 2002. They lived together in the house of Rodriguez's parents for the first few years while building a church, and in 2005, a home, in the town of Ursulo Galvan. Sieler was a pastor in the church and Rodriguez worked as a schoolteacher. Their monthly support check from the church was deposited in a joint checking account at the Mountain West Bank in Kalispell, Montana, and both Sieler and Rodriguez paid taxes to the IRS and the Montana Department of Revenue.
In 2003, Sieler filed for an "FM3" as a non-immigrated visitor to Mexico doing religious work. During the same year, Rodriguez was granted permanent resident status in the United States. Thereafter, Rodriguez and Sieler returned to the United States annually for four to six weeks at a time, usually during the summers when the weather in Mexico was hottest. Sieler testified that as a missionary, he knew his stay in Mexico would not be permanent. However, Rodriguez testified that they never agreed how long they would reside in Nayarit and that she did not believe a move was imminent because Sieler had told her that he had been called to serve in Mexico.
Sieler's and Rodriguez's son, P.A.S.C.,was born in Mexico on December 20, 2004; he is now 7. C.J.S.C. was born on March 23, 2009; she is now 3. Both children were registered as United States citizens born abroad and issued American passports. However, they lived in Ursulo Galvan with both their parents their entire lives, except for the few weeks a year that the family visited Kalispell. They lived close to Rodriguez's parents and siblings, with whom they spent significant time, and P.A.S.C. attended preschool and primary school there.
In July and August of 2011, the family made their typical summer trip to Kalispell. Sieler testified that at this time, he had begun to seriously consider moving the family back to Montana. During the visit, he decided he was going to move. Rodriguez testified that he did not tell her of his plan during this visit and that she would not have agreed to the move. Sieler insists he did tell her his intention and that while she was not angry, she was not happy about it either and that she neither said she would or would not come with him. The family returned to Mexico on August 20, 2011. Two days later, Sieler's father passed away, and Sieler returned to Kalispell to help settle his family's affairs. Rodriguez and the children joined him in late September, expecting to help out for a couple of months and then to return to Mexico.
Rodriguez testified that it was at this time that Sieler first told her he planned to move to Montana permanently. She denies ever agreeing to move or to allow the children to move to Montana. Sieler confirmed that Rodriguez never said she wanted the children to move to Montana permanently, although in his affidavit before the state court (doc. 27-1 at 1--2), he suggested that Rodriguez was helping him prepare for a permanent move. The parties agree that the proposed move caused or amplified tensions in their marriage that fall.
Rodriguez returned to Mexico with C.J.S.C. on December 25, 2011, because her sister was ill. Sieler and P.A.S.C. returned to Mexico a month later. P.A.S.C. re-enrolled in school in Nayarit.
The problems in Sieler's and Rodriguez's marriage continued in Mexico. For the next four months, Sieler continued to advocate moving the family to Kalispell, and Rodriguez continued to resist his plan. She began contemplating separation.
On May 7, 2012, still in Nayarit, they argued late into the night. During the argument, it appears that Rodriguez suggested that Sieler could take P.A.S.C. and that she could take C.J.S.C. if they separated. Sieler contends she meant that he could take P.A.S.C. to the United States permanently. Rodriguez denies she gave permission for Sieler to permanently remove P.A.S.C. from Mexico or her care. She testified that she meant that a short separation might help them resolve their difficulties and that they could each take care of one of the children during that separation.
When Rodriguez awoke the next morning, Sieler and both children were gone. She had a text message from Sieler advising her to go speak with her parents. She did so and texted him back that the conversation had taken place. She continued to try to reach him, but he did not respond. She went to one of Sieler's fellow missionaries who told her that Sieler had taken P.A.S.C. and C.J.S.C. and left for the United States. Sieler finally contacted Rodriguez from Kalispell and informed her that neither he nor the children were returning to Mexico. Rodriguez did not agree to that arrangement.
Within days, Sieler initiated dissolution and custody proceedings in Kalispell, and Rodriguez made efforts through the Mexican and United States consulates in Guadalajara, Jalisco, Mexico, to initiate return proceedings. Rodriguez's efforts resulted in the present case. The state court proceedings in Kalispell were stayed pending resolution of this petition.
II. Overview of the Hague Convention
Both Mexico and the United States are parties to the Hague Convention and must therefore "take all appropriate measures" to expeditiously implement the objects of the Convention. Convention, art. 2. The Convention was enacted "to secure the prompt return of children wrongfully removed to or retained in any Contracting State" and "to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in other Contracting States." Convention, art. 1. Its "drafters were concerned primarily with securing international cooperation regarding the return of children wrongfully taken by a parent from one country to another, often in the hope of obtaining a more favorable custody decision in the second country." Gonzalez v. Gutierrez, 311
F.3d 942, 944 (9th Cir. 2002). To prevent an abducting parent from benefitting from his actions, a child who has been wrongfully removed or retained must be returned to the country of its habitual residence for custody proceedings. In re B. Del C.S.B., 559 F.3d 999, 1002 (9th Cir. 2009). Thus, the question a court must answer is "whether a child should be returned to a country for custody proceedings and not ...