Mexican Mother and Father live in the US for a number of years before Father is deported.
Their daughter (Daughter) is born in Mexico in 1996.
When Mother and Father separate in 2001, Mother returns to the US. Mother alleges that Father committed domestic violence.
Father contends that Mother wrongfully kept Daughter in the US beyond her agreed few months’ stay in 2002.
Although they have both been here for years now, technically, neither Mother nor Daughter are in this country legally.
Over four years after Mother allegedly wrongfully retained Daughter in the US, Father applies for return of Daughter to Mexico under the Hague Convention on the Civil Aspects of International Child Abduction. It is not clear why Father waited so long to act.
A federal trial court holds that Daughter should be returned to Father in Mexico for a custody determination there.
On appeal, the intermediate level appellate court reverses, based on an exception in the Hague Convention where, due to the lengthy passage of time, the child in question has become well settled in his or her new location, so that return would only cause the child further distress.
By all accounts, Daughter is well-adjusted and doing well in the US.
Some disagree with the appellate court’s ruling because none of the family is a US citizen or legal resident.
As with all decisions under the Hague Convention on the Civil Aspects of International Child Abduction, this ruling is a not a determination of custody, or in which country Daughter will ultimately live. It just decides which country has jurisdiction to determine custody, and where the child will remain until custody is determined.
It is likely that the appellate Court was heavily influenced by Daughter’s protracted stay in this country before Father ever chose to file an application for her return. There is nothing to suggest that Father’s delay resulted from ignorance of where Daughter was abducted to.
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