Case Update (2020): Zaoral v. Meza; Hague Abduction Convention, one year and now settled

On August 26, 2020, in the case of Zaoral v. Meza, the U.S. District Court for the Southern District of Texas ordered the return of a 15-year-old child to Venezuela. The parties' youngest child, age 15 at the time of the trial, was the subject of a Venezuelan custody order that gave both parents joint parental responsibility, and ordered that the Mother, who was the primary residential custodian, could not change the child's residence without notifying the Father so he could exercise his rights and duties.  

The Mother sought court permission to take the daughter on a several-week trip to visit family in Houston from July 6, 2018 through August 14, 2018.  The court permitted the trip and required the Mother to appear in court the week after her scheduled return.  The travel authorization from the court also included specific language that informed the Mother that her failure to return the child would be a criminal offense.  Nonetheless, the Mother failed to return. 

On November 11, 2018, the Father lodged an application with the Venezuelan Central Authority seeking the return of his daughter to Venezuela.  It was transmitted from the Venezuelan CA to the U.S. Central Authority on December 26, 2018.  Further proceedings occurred in Venezuela that ultimately lead to a criminal arrest warrant for the Mother and an INTERPOL red notice. 

At trial the Father was able to prove his prima facie case.  The mother argued virtually all exceptions to the child's return.  The child was interviewed and expressed a preference to reside in the United States since "life is better here" than in Venezuela.  The court was not persuaded by any of the exceptions, so it returned the child.  

The court made a few interesting conclusions.  First, it used the fact that the Venezuelan Central Authority transmitted the application to the U.S. CA as evidence that the Hague Abduction Convention applies in this case, citing Article 27 of the Convention where CA's are not bound to accept applications if they conclude they are not well-founded. 

In resolving whether Venezuela was the child's habitual residence, the Court applied its Fifth Circuit case of Larbie v. Larbie, which analyzes the parents' last shared intent, instead of the recent U.S. Supreme Court case of Monasky v. Taglieri that mandates a totality-of-the-circumstances standard.  Having said that, the court drew multiple factual conclusions that appeared to persuade it that the child's connections and focus of life up until the wrongful retention in Houston was in Venezuela. 

The judge also concluded that the Mother cannot argue that the child is now settled in Houston, because the Father filed his application with the Venezuelan CA within the one year post-retention.  The court used the language in Article 12 of the Convention to conclude that a parent only need to submit their application to the proper "administrative authority," to initiate or commence their request to return their child.  This is contrary to other circuits that have relied on the U.S. implementing legislation, ICARA, to conclude that a request to return a child under the Convention is only commenced with filing a petition in the proper court where the child now sits. See my August 4th blog post about the now settled exception here.  Courts, such as in Monzon v. De La Roca, have relied on the language of section 9003 in ICARA to conclude that a court case is what commences a Hague Abduction return request.  Likewise, the Second Circuit in Lozano v. Alvarez stated, in FN 9, "The ICARA provides that “the ‘commencement of proceedings,’ as used in Article 12 of the Convention,” does not occur until a person files a petition in a civil action for the return of the child in a court that has jurisdiction in the place where the child is located at the time the petition is filed."  (The District Court likewise concluded the same at FN 16, 809 F.Supp.2d 197).