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Court says daughters can stay in Arizona in U.S.-Mexico custody fight

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Friday, Nov. 15, 2013
By Jack Fitzpatrick
Cronkite News

WASHINGTON – A federal appeals court said Friday that a Mexican woman cannot invoke an international convention on child abduction to get back her twin daughters, whose father has refused to return them from his home in Arizona.

A three-judge panel of the 9th U.S. Circuit Court of Appeals upheld a lower court that rejected Blanca Reyes Valenzuela’s argument because she and the father, Steve Michel, had agreed that their daughters should split their time between Mexico and the U.S.

Since the children were “habitually resident” in Arizona, the Hague Convention on International Aspects of Child Abduction does not apply, the courts ruled.

Calls to attorneys in the case and to the Mexican Embassy in Washington were not immediately returned Friday.

Valenzuela and Michel were living in Nogales, Mexico, in 2008 when the twins were born. But Michel soon moved 10 miles across the border to Arizona, where he worked, to keep from having to repeatedly cross the border.

The couple agreed then that their daughters would spend time in Arizona to take advantage of U.S. education, medical and other government support, according to court documents. The girls spent Monday to Wednesday in Mexico with their mother, then were handed off to their father to live in Arizona Thursday through Sunday.

But the couple’s relationship turned ugly in 2010, the court said, and Valenzuela threatened to have Michel “beaten up or killed.” At that point, she had the girls and stopped showing up at the border to hand them over to Michel.

Eventually, the exchanges resumed and the girls were reunited with their father, who told Valenzuela in a 2011 text that that he would not bring them back to Mexico. Valenzuela then filed an application under the Hague Convention to try to force the children’s return.

In a hearing on the matter, Valenzuela and her witnesses testified by phone from Mexico to the U.S. District Court in Tucson. Valenzuela “talked over some of her witnesses” who the district court said “either lacked independent foundation for their testimony or were being audibly coached while they were testifying, possibly by Blanca (Valenzuela) herself.”

Michel testified that he and Valenzuela both decided to indefinitely take the twins to the U.S. on a regular basis and that they would be there long enough to attain government assistance, the court opinion said.

The district court considered Michel’s testimony more credible than Valenzuela’s, the appeals court said. The lower court accepted Michel’s description of how and when the children traveled between the U.S. and Mexico and, based on that description, ruled that the twins were “habitually resident” in the U.S.

“While the emotional aspects of this case are fraught, the law is clear,” said the appeals court opinion, written by Judge John Noonan. “The children were habitually resident in the United States when Steve (Michel) retained them. Their retention was therefore not ‘wrongful’ under the Convention.”

The case was unusual because very few claims under the Hague Convention focus on “shuttle custody situations” in which children go back and forth indefinitely between two countries, the court said – particularly a shuttle that is so close and routine.

Many cases involve parents who move to a new country but cannot agree on whether they want to stay, the opinion said. And those that do involve shuttle custody typically involve children who travel a greater distance for longer periods of time, moving between continents for months-long stays, for example. Valenzuela and Michel only lived about 10 miles apart, the opinion said.

Circuit Judge Stephen Reinhardt agreed with the opinion. But he wrote in a concurrence that issues involving shuttle custody situations and “dual habitual residence” may come up in future cases and that they “are deserving of more thorough consideration than is possible in the case before us.”