united states district court eastern district of...

4205039_1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

MARITZA YOLANDA MOLINAMELENDEZ

PETITIONER

VERSUS

JAIME ENRIQUE VILLEGAS ZERON,ROSA MARIA ZERON RODRIGUEZ,AND CAMILO VILLEGAS ROURA

RESPONDENTS

CIVIL ACTION

NO. 15-628

SECTION: R(5)

JUDGE VANCE

MAGISTRATE NORTH

FINDINGS OF FACT AND CONCLUSIONS OF LAW

NOW INTO COURT, through undersigned counsel, comes Petitioner, Maritza Yolanda

Molina Melendez, who respectfully submits her proposed findings of fact and conclusions of law.

To the extent that any of the proposed findings of fact are considered by the Court to be legal

conclusions, they are hereby submitted as such. Similarly, to the extent that any of the proposed

conclusions of law are considered by the Court to be factual findings, they are submitted as such.

FINDINGS OF FACT

1. The child at issue in these proceedings is DPVM, a six-year-old, female

Honduran citizen.

2. Petitioner, Maritza Yolanda Molina Melendez (“Ms. Molina”), is the

mother of DPVM and a citizen of Honduras. Ms. Molina is an industrial engineer by

education and trade and is fully employed in Honduras.

3. Respondent, Jaime Enrique Villegas Zeron (“Mr. Villegas”), is the father of

DPVM and is a citizen of both Honduras and the United States.

Case 2:15-cv-00628-SSV-MBN Document 18 Filed 03/26/15 of 31

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4. Respondents, Rosa Maria Zeron Rodriguez and Camilo Villegas Roura

(“grandparents”), are the parents of Mr. Villegas and the paternal grandparents of DPVM.

The grandparents are citizens of both Honduras and the United States.

5. Ms. Molina and Mr. Villegas have never been married and have never lived

together or maintained a home in common. The birth of DPVM was the result of a brief

encounter between the parents.

6. DPVM was born in San Pedro Sula, Honduras on the 13th day of June,

2008.1 DPVM is thus a citizen of Honduras, and she is not currently a citizen of any other

country.

7. DPVM has resided solely in Honduras from the time of her birth until her

grandparents abducted her to the United States in June of 2014. Until that time, DPVM

was completely settled and integrated in Honduran life and culture. DPVM had attended

school in Honduras, spoke only Spanish, and had a close and nurturing familial

relationship with Ms. Molina (her mother) and with Ms. Molina’s mother and sisters

(DPVM’s maternal grandmother and aunts).

8. Over the years, Mr. Villegas often traveled back and forth between the

United States and Honduras, frequently staying in the United States and away from DPVM

for long periods of time.

9. At some point before DPVM’s third birthday,2 her grandparents offered to

watch her during the week while Ms. Molina worked and simultaneously pursued her

education. Ms. Molina thought it was important for DPVM’s wellbeing for the child to

establish a relationship with Mr. Villegas’s family members, particularly considering Mr.

1 See Certification of Birth No. 0501-2009-00075, Country of Honduras (Rec. Doc. 1-1, Exhibit “B”).2 The parties dispute the precise date upon which the grandparents first began to assist Ms. Molina in caring forthe child.


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Villegas’s frequent absences. Ms. Molina therefore agreed to the arrangement and

allowed DPVM to stay with the grandparents and/or Mr. Villegas at their collective home

in San Pedro Sula, Honduras during the week. The agreement provided that DPVM

would stay with Ms. Molina on the weekends.

10. This arrangement worked well for the parties for a time until late 2013,

when Mr. Villegas impregnated another woman. At that time, Mr. Villegas apparently

made plans to move to the United States permanently with this woman, with the object of

having their baby born in the United States as a United States citizen.

11. In early February 2014, the grandparents told Ms. Molina that they planned

to follow suit in moving to the United States and that they wanted to relocate DPVM along

with them. Ms. Molina refused to agree to that arrangement, telling the grandparents that

they were welcome to return to Honduras at their pleasure to visit the child. The

grandparents did not respond well to the news that they did not have permission to move

the child to the United States.

12. Shortly thereafter, Ms. Molina filed a complaint with the Honduran Institute

for Children and Families (the “Institute”), a public body that conducts administrative

proceedings that are essentially formal, non-judicial mediations.

13. On February 20, 2014, Ms. Molina and Mr. Villegas attended an

administrative proceeding at the Institute.3 Both parties were represented by counsel. At

that hearing, the Institute memorialized the parents’ mutual agreement as to the following:

Due to Ms. Molina’s work schedule and DPVM’s school schedule,

DPVM would continue to stay at Ms. Molina’s home (in San Pedro

3 See Record of Institute Proceedings, February 20, 2014 (Rec. Doc. 1-1, Exhibit “C”). An Englishtranslation of this document is attached hereto as Exhibit “A.”


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Sula, Honduras) on the weekends (from Friday at 5:00 pm until Sunday

at 5:00 pm), and Ms. Molina was also to visit her daughter during the

school week. DPVM would stay at Mr. Villegas’s house during the

school week.

DPVM would split the three months of summer vacation between her

parents, spending one-and-a-half months with Ms. Molina in Honduras

and one-and-a-half months with Mr. Villegas and her grandparents in

the United States.

DPVM could not leave the country without prior authorization of Ms.

Molina.

Both Ms. Molina and Mr. Villegas would make arrangements for a visa

for Ms. Molina to visit DPVM during DPVM’s vacation in the United

States over the summer.

14. On March 7, 2014, Ms. Molina and Mr. Villegas both signed an

authorization for DPVM to leave Honduras and travel to the United States with her

grandmother, Respondent Rosa Maria Zeron Rodriguez.4 The authorization was only

valid for approximately one-and-a-half months of summer vacation, in accordance with the

parties’ agreement. The authorization’s effect began on June 25, 2014 and ended on

August 2, 2014, the last date upon which DPVM was to be returned to Honduras.

15. Shortly after signing this authorization, Mr. Villegas relocated to the United

States.

4 See “Authorization of Departure of a Minor,” March 7, 2014 (Rec. Doc. 1-1, Exhibit “D”). Note that theexhibit includes both Spanish and English versions.


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16. On May 22, 2014, Ms. Molina attended a second administrative proceeding

at the Institute.5 Mr. Villegas had moved away to the United States, leaving the child in

the custody of her grandparents during the school week, and he did not return to Honduras

for this hearing concerning his child. Instead, the grandparents appeared at the hearing

and vigorously argued for full custody of DPVM. The Institute declared as follows:

The Institute refrained from hearing ultimate issues of custody, which it

acknowledged are reserved for determination by the Honduran Family

Court in formal proceedings.

For the purpose of maintaining DPVM’s school schedule, and

considering the physical absence of Mr. Villegas, who was living in the

United States, the parties agreed that DPVM could continue staying

with her paternal grandparents during the school week, provisionally

and in the place of Mr. Villegas, but only until the date that the school

year was to end.

DPVM was a victim of emotional abuse by neglect, due to the physical

absence of her father.

The parties agreed that a psychological evaluation of DPVM would be

conducted.6

17. Ms. Molina testified that the 2014 school year was scheduled to terminate

on July 13, 2014, and therefore DPVM was to return to her mother’s care at that time, in

accordance with the Institute’s resolution.

5 See Record of Institute Proceedings, May 22, 2014 (Rec. Doc. 1-1, Exhibit “E”). An English translation ofthis document is attached hereto as Exhibit “A.”6 Ms. Molina testified at trial that the grandparents abducted DPVM before that psychological evaluation couldbe successfully accomplished.


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18. On June 5, 2014, before the school year ended and before the effective date

of the travel authorization, the grandparents absconded to the United States, abducting

DPVM along with them, without the permission Ms. Molina.

19. On Friday, June 6, 2014, Ms. Molina arrived at the grandparents’ house to

retrieve DPVM as usual. She was shocked and devastated to find the house empty and

DPVM missing. Ms. Molina realized that the grandparents had taken DPVM without

leaving a telephone number or address. Ms. Molina was unable to communicate with

DPVM, to determine her whereabouts, or even to ensure that her daughter was safe.

20. Ms. Molina testified that she promptly pursued all available remedies to

obtain DPVM’s return to Honduras. On June 6, 2014, upon discovery of the abduction,

Ms. Molina immediately contacted the Institute and obtained a letter to the Honduran

immigration services to determine whether DPVM had left the country, which she indeed

had. Ms. Molina also filed a custody demand against Mr. Villegas on June 9, 2014.

Additionally, Ms. Molina filed a criminal complaint with her local public prosecutor for

Improper Child Abduction.7 Ms. Molina also filed a Hague Convention application with

the Institute in Honduras and with the United States Department of State.8

21. Respondents contend that Ms. Molina acquiesced in, or ratified, DPVM’s

removal from Honduras and her retention in the United States. This argument is devoid of

substance and merit. Ms. Molina’s actions are not those of a parent who has agreed to her

child’s removal. Ms. Molina did not acquiesce in any way in the abduction of DPVM.

The child was taken against her will before the effective date of the summer vacation

7 See Criminal Complaint for Improper Child Abduction (Rec. Doc. 1-1, Exhibit “I”). Note that the exhibitincludes both Spanish and English versions.8 See Hague Convention Application, November 19, 2014 (Rec. Doc. 1-1, Exhibit “J”). Note that the exhibitincludes both Spanish and English versions.


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authorization, and Ms. Molina hoped that Respondents would return DPVM to Honduras

on August 2, 2014, as required by that authorization. Ms. Molina did not objectively

manifest any intent to allow DPVM to be permanently relocated to the United States.

22. Respondents did not return DPVM to Honduras by the August 2nd

deadline, and they have retained the child in the United States to this day. DPVM has now

been present in the United States (near New Orleans, Louisiana) with Respondents since

June 2014, approximately ten months time.

23. DPVM is currently being denied proper access to Ms. Molina, her mother’s

family, and her Honduran culture and education. After discovering a means to contact

DPVM by telephone, Ms. Molina has maintained phone contact with her daughter to the

limited extent that Respondents have allowed, and she has actively maintained a long

distance relationship with her daughter as best she could under the circumstances.

24. Understandably, Ms. Molina is devastated by the abduction of her daughter

and seeks DPVM’s immediate return to Honduras to be reunited with her and her family.

25. Ms. Molina filed the instant Hague Convention Petition in this Court on

February 27, 2015, seeking the immediate return of DPVM to Honduras. Respondents

were served in River Ridge, Louisiana on March 5, 2015.

26. In this litigation, Respondents have sought to justify their abduction and

retention of DPVM by alleging that Ms. Molina abused DPVM. Specifically, they allege

that Ms. Molina struck DPVM in the eye on one occasion, which Ms. Molina disputes.


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27. The medical records that Respondents have submitted in support of this

allegation show that the grandparents’ doctor, who treated DPVM’s alleged eye injury,

diagnosed DPVM with “Blepharitis in the right eye.”9 “Blepharitis” is defined as follows:

Blepharitis is an inflammation of the eyelids, usually caused by anexcess growth of bacteria that is ordinarily found on the skin,blockage of the eyelid's oil glands, and occasionally allergies. …Blepharitis is a common eye condition, causing the eyelids to bereddened, itchy, and somewhat swollen and scaly-appearing at thebase of the eyelashes. It is the most common cause of dry eyes. Adysfunction of the eyelid's oil glands that leads to blepharitis occursbecause of a hormone imbalance.10

This diagnosis does not support Respondents’ contention that DPVM was struck in the eye.

Neither does the photograph that Respondents provided convince the Court that the child

was struck in the eye.11 The definition of “blepharitis” makes it clear that this condition

can result from, and in fact is more likely to result from, many causes other than abuse.

28. Respondents also allege that on another occasion, Ms. Molina failed to

adequately care for a burn that DPVM accidentally incurred on her leg. Respondents have

provided medical records and photographs documenting the burn.12 Ms. Molina and

Respondents both agree that the injury occurred and that it was accidental.13 However,

Ms. Molina disputes the contention that she failed to respond adequately.

29. Aside from these records, Respondents have also offered their testimony

that they believe the manner in which Ms. Molina responded to the burn was inadequate.

Ms. Molina has testified that she responded to the burn in the best manner she could under

the circumstances. The injury was not the result of abuse or neglect, and Ms. Molina’s

9 See Medical Record of 4/21/14 (Rec. Doc. 13, p. 11-14).10 Eye Health and Blepharitis, WEB MD (Mar. 24, 2015, 3:15 pm),http://www.webmd.com/eye-health/blepharitis.11 See Medical Record of 4/21/2014 (Rec. Doc. 13, p. 11-14).12 See Medical Record of 3/20/2015 (Rec. Doc. 13, p. 15-17).13 See Expert Report of Dr. Salcedo, Respondents’ Expert Psychologist, at pg. 2.


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response to the injury also fails to qualify as neglect, regardless of whether the response

met the grandparents’ standards.

30. Additionally, Respondents have offered the expert report and testimony of

their clinical psychology expert, Rafael F. Salcedo, PhD. Dr. Salcedo has commented on

Respondents’ abuse allegations, of which he has no firsthand knowledge. He has stated

his opinion that DPVM could potentially experience some psychological harm if returned

to Honduras.14

31. Despite Respondents’ arguments, there is ample evidence in the record that

Ms. Molina has cared for DPVM’s medical needs in an adequate manner.

32. For example, Ms. Molina obtained the following vaccinations for DPVM:

Polio – Aug. 2008, Oct. 2008, Dec. 2008

DTP (diphtheria, pertussis, tetanus) – Aug. 2008, Oct. 2008, Dec. 2008

Sarampion (measles) – July 2009

Parotiditis (mumps) – July 2009

Rubeola (rubella) – July 2009

Haemophillus Influenzae – Aug. 2008, Oct. 2008, Dec. 2008

Hepatitis B – Aug. 2008, Oct. 2008, Dec. 2008

Hepatitis A – Jan. 2010

Varicella – Sept. 2009

Prevenar (pneumococcal vaccine) – March 2010, May 2010.15

33. Additionally, Ms. Molina currently holds medical insurance that includes

DPVM as a dependent.16

14 See Expert Report of Dr. Salcedo, Respondents’ Expert Psychologist, at pg. 7.15 See Immunization Records, attached hereto as Exhibit “B.”


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34. The evidence at trial showed that Ms. Molina is a loving and nurturing

mother who cared for DPVM’s needs throughout her life in Honduras, including providing

her with food, shelter, and arranging for medical care. The child will be well cared for

upon her return to Ms. Molina’s custody in Honduras. Ms. Molina’s mother and sisters in

Honduras will assist in caring for and nurturing the child, and in meeting her needs.

35. Any potential concerns about psychological trauma to DPVM caused by

separating her from her father and grandparents in the United States are minimized by the

ability that Mr. Villegas and the grandparents have, as Honduran citizens, to return to

Honduras to visit the child. There is no impediment to Respondents making these visits.

36. Respondents have displayed their ability to meaningfully participate in the

Honduran legal process. Respondents are Honduran citizens and have previously attended

proceedings at the Institute in Honduras, where they were represented by a Honduran

attorney.

37. Like Louisiana, Honduras’s legal system is governed in civil law. The

Honduran Family Courts are competent courts that are capable and willing to determine the

best interests of DPVM in the underlying custody dispute.

38. Ms. Molina incurred more than [amount to be proven at trial] in expenses

related to Respondents having removed and retained her daughter, DPVM.

39. Ms. Molina incurred more than [amount to be proven at trial] in legal fees

related to Respondents having removed and retained her daughter, DPVM.

16 See Health Insurance Card, attached hereto as Exhibit “C.”


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CONCLUSIONS OF LAW

A. The Hague Convention

1. Honduras and the United States of America are both signatories to the Convention

on the Civil Aspects of International Child Abduction, confected at The Hague on October 25,

1980 (the “Hague Convention” or the “Convention”).

2. The Hague Convention was implemented by Congress through the International

Child Abduction Remedies Act, 22 U.S.C. § 9001, et seq. (2014) (“ICARA”). Abbott v. Abbott,

130 S.Ct. 1983, 1989 (2010).

3. Congress does not mince words when it comes to international child abduction:

“The international abduction or wrongful retention of children is harmful to their well-being. …

Persons should not be permitted to obtain custody of children by virtue of their wrongful removal

or retention.” 22 U.S.C. § 9001(a)(1 & 2) (2014). Thus, in ICARA, Congress sought to ensure

quick and decisive action in cases of international abduction. As the Fifth Circuit has

acknowledged, “the Convention dictates: when a child has been wrongfully removed from his

country of habitual residence, the ‘judicial or administrative authority of the Contracting States

where the child is … shall order the return of the child forthwith.” Sealed Appellant v. Sealed

Appellee, 394 F.3d 338, 344 (5th Cir. 2004) (quoting Convention, art. 12).

4. The Hague Convention and ICARA therefore have two primary “objects”: (1) “to

secure the prompt return of children wrongfully removed to or retained in any Contracting State”;

and (2) “to ensure that rights of custody and of access under the law of one Contracting State are

effectively respected in the other Contracting States.” Convention, art. 1;17 Larbie v. Larbie, 690

F.3d 295, 306 (5th Cir. 2012), cert. denied, 133 S.Ct. 1455 (2013).

17 See Convention Language (Rec. Doc. 1-1, Exhibit “A”).


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5. In Hague Convention cases, courts do not deal with issues of custody or the best

interests of the child; instead, the inquiry is purely an issue of which nation’s courts have

jurisdiction over the underlying custody dispute. See Abbott, 130 S.Ct. at 1995-96. The Hague

Convention seeks to “restore the pre-abduction status quo and to deter parents from crossing

borders in search of a more sympathetic court. … Accordingly, the Convention prohibits courts …

from adjudicating the merits of the underlying custody disputes.” England v. England, 234 F.3d

268, 271 (5th Cir. 2000), reh’g denied, 250 F.3d 745 (5th Cir. 2001). Indeed, the Hague

Convention “is based on the principle that the best interests of the child are well served when

decisions regarding custody rights are made in the country of habitual residence. … It is the

Convention’s premise that courts in contracting states will make this determination in a

responsible manner.” Abbott, 130 S.Ct. at 1995-96.

6. This Court has jurisdiction pursuant under the Hague Convention and ICARA

because this case involves the removal and retention of a child under the age of sixteen from her

habitual residence of Honduras to the United States of America. Abbott, 130 S.Ct. at 1989-90; see

also Sealed Appellant, 394 F.3d at 342. Venue is proper because DPVM is present in River

Ridge, Louisiana, which is within the Eastern District of Louisiana. 22 U.S.C. § 9903(b) (2014).

7. A Hague Convention claim consists of three elements, which the petitioner must

prove by a preponderance of the evidence. See 22 U.S.C. § 9903(b) (2014); Sealed Appellant,

394 F.3d at 343. “A [party] wrongfully removes a child when he or she (1) removes or retains that

child outside of the child’s country of habitual residence; (2) this removal/retention breaches the

rights of custody accorded to the a parent under the laws of that country; and (3) at the time of the

removal, that parent was exercising those custody rights.” Id.


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B. Habitual Residence

8. A habitual residence determination is a mixed question of law and fact. Silverman

v. Silverman, 338 F.3d 886, 896 (8th Cir. 2003), cert. denied, 540 U.S. 1107 (2004). A child can

have only one habitual residence, and “it should not be confused with domicile.” Id. at 898.

9. The Convention does not define “habitual residence” but directs courts to

determine the habitual residence of the child at the point in time “immediately before the removal

or retention.” Convention, art. 3. “On its face, habitual residence pertains to customary

residence prior to removal. The court must look back in time, not forward.” Dietz v. Dietz, No.

07-1398, 2008 U.S. Dist. LEXIS 70208, at *12 (W.D. La. Sept. 17, 2008), aff’d, 349 Fed. App’x

930 (5th Cir. 2009) (emphasis added). Habitual residence is determined by examining “past

experience, not future intentions.” Nunez–Escudero v. Tice–Menley, 58 F.3d 374, 379 (8th Cir.

1995) (internal quotation marks omitted).

10. A child’s habitual residence is “the place where he or she has been physically

present for an amount of time sufficient for acclimatization and which has a ‘degree of settled

purpose’ from the child's perspective.” Feder v. Evans–Feder, 63 F.3d 217, 224 (3d Cir. 1995),

reh’g denied, No. 94-2176, 1995 U.S. App. LEXIS 24323 (3d Cir. Aug. 24, 1995). “Settled

purpose” means that the child must have a “sufficient degree of continuity to be properly described

as settled.” Id. at 223. In determining whether a particular place satisfies the standard for

habitual residence, “[t]he child’s perspective should be paramount,” and “[p]arental intent is not

dispositive.” Stern v. Stern, 639 F.3d 449, 452 (8th Cir. 2011), cert. denied, 132 S.Ct. 1540

(2012). Although it is not dispositive, some courts look to the shared intent of the parents when

determining habitual residence. See Dietz, 2008 U.S. Dist. LEXIS 70208, at *11-12.


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11. Respondents contend that Ms. Molina and Mr. Villegas had a settled, mutual

intention to abandon Honduras as DPVM’s habitual residence and establish a new state of habitual

residence in the United States. The facts demonstrate otherwise. Both parents signed an express

agreement that the child would go to the United States on June 25, 2014 and return to Honduras on

August 2, 2014. Through this agreement, Ms. Molina objectively manifested her clear intention

that DPVM would continue to live with her in Honduras and only visit the United States for a short

time and return on August 2nd. Additionally, Ms. Molina’s objection to the removal of the child

on June 5, 2014 is clearly evidenced by her immediate pursuant of all available remedies to obtain

DPVM’s return, including contacting the Institute and Honduran immigration services, and filing

a custody demand, a criminal complaint, and a Hague Convention application.

12. The parties also agreed that Ms. Molina would obtain a visa to visit DPVM in the

United States while DPVM was visiting there, but this does not establish Ms. Molina’s intention to

have DPVM relocated to the United States permanently.

13. Respondents’ contention that it was the shared mutual intent of the parents for

DPVM to leave Honduras with her grandmother on June 5, 2014 is clearly false, as evidenced by

the parties’ agreement that the child not leave the country without Ms. Molina’s consent, and not

until June 25, 2014, after the school year was to end on June 13, 2014.

14. It is therefore clear that prior to her removal, DPVM’s country of habitual residence

was Honduras. In fact, Honduras is the only reasonable habitual residence in this case because

until the removal, DPVM had never lived anywhere else. At the time of her removal in June of

2014, DPVM was fully settled in the culture of Honduras, where she had lived uninterrupted since

her birth on June 13, 2008, and where she attended school and had a familial relationship with Ms.

Molina and her family.


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15. Respondents’ subjective and secret intention to abduct the child and retain her in

the United States indefinitely cannot unilaterally change the child’s habitual residence. Holding

otherwise would contravene the purpose of the Hague Convention and ICARA by unfairly tipping

the scales of justice in favor of the abductors.

C. Custody Rights

16. Article 3 of the Convention provides that the removal or retention of a child is

wrongful where it violates the custody rights of another person that were actually being exercised

at the time of the removal or retention, or would have been exercised but for the removal or

retention. Convention, art. 3; see also Lops v. Lops, 140 F.3d 927, 935 (11th Cir. 1998), reh’g

denied, 150 F.3d 1199 (11th Cir. 1998), cert. denied, 525 U.S. 1158 (1999) (“The removal of a

child from the country of his or her habitual residence is ‘wrongful’ under the Hague Convention if

a person in that country is, or would otherwise be, exercising custody rights to the child under that

country’s law at the moment of removal.”); see also Friedrich v. Friedrich, 78 F.3d 1060, 1064

(6th Cir. 1996).

17. The Convention considers “rights of custody [to] include rights relating to the care

of the person of the child and, in particular, the right to determine the child's place of residence.”

Convention, art. 5(a). Courts broadly interpret a parent’s rights of custody under the Convention.

See Abbott, 130 S.Ct. at 1991 (concluding that even parental rights which do “not fit within

traditional notions of physical custody” can be sufficient to establish a right of custody under the

Convention’s “broad definition”).

18. A petitioner’s custody rights need not be enshrined in a formal custody order issued

before the removal or retention; indeed, the Convention also recognizes rights of custody that arise

“ex lege.” See Convention, art. 3 (“The rights of custody mentioned ... above, may arise in


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particular by operation of law or by reason of a judicial or administrative decision, or by reason of

an agreement having legal effect under the law of that State.”).

19. Assuming Ms. Molina had rights of custody over DPVM, she then need only make

the final, and “relatively easy” showing that “at the time of removal or retention, those rights were

actually exercised, either jointly or alone, or would have been so exercised but for the removal or

retention.” Convention, art. 3(b). Generally, courts “liberally find” that rights of custody have

been exercised unless evidence demonstrates “acts that constitute clear and unequivocal

abandonment of the child.” Sealed Appellant, 394 F.3d at 344–45.

20. The issue of “custody” must be addressed under Honduran law because the child

was a habitual resident and citizen of Honduras at the time of her removal. Friedrich, 78 F.3d at

1064. On this point, the Court heard the expert report and testimony of Honduran law expert,

Henry Javier Chavez.18

21. Mr. Chavez’s report and testimony make it clear that Ms. Molina had automatic,

maternal custody rights and responsibilities over DPVM as a matter of law under the Honduran

Family Code, and that Respondents’ removal of the child violated those rights and also constitutes

criminal child abduction under the Honduran Penal Code.19

22. Ms. Molina’s testimony and other evidence presented at trial establish that Ms.

Molina was exercising her custodial rights over DPVM at the time of the removal and that Ms.

Molina has been deprived of her custodial rights by Respondents’ removal and retention of the

child in the United States. Ms. Molina has not seen her daughter since her abduction in June

2014, and her parental rights continue to be violated while the child is being retained in the United

States.

18 See Expert Report and Curriculum Vita of Henry Javier Chavez, attached hereto as Exhibit “D” (includingboth English and Spanish versions).19 See Expert Report of Henry Javier Chavez, attached hereto as Exhibit “D,” at pg. 2.


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23. Accordingly, the Court finds that Respondents wrongfully removed DPVM from

Honduras and are currently wrongfully retaining the child in the United States, in violation of Ms.

Molina’s custody rights to her daughter under Honduran law and in violation of the Hague

Convention and ICARA. Ms. Molina has established her prima facie case in this regard.

D. Affirmative Defenses: Failure to Exercise Custody and Consent/Acquiescence

24. Even where a petitioner has established a prima facie case, Convention respondents

may assert “several narrow affirmative defenses to wrongful removal.” Sealed Appellant, 394

F.3d at 343. For instance, a court has no obligation to order a child’s return if the respondent

shows by a preponderance of the evidence that the petitioner (1) “was not actually exercising the

custody rights at the time of removal or retention,” or (2) “had consented to or subsequently

acquiesced in the removal or retention.” Convention arts. 12 & 13(a). Neither of these defenses

applies in this case because the evidence demonstrates that Ms. Molina was actually exercising her

custody rights under Honduran law at the time of the abduction. Moreover, Ms. Molina never

consented or acquiesced to the child’s wrongful removal or retention. Instead, Respondents

abducted DPVM without Ms. Molina’s permission, and Ms. Molina immediately pursued all

available remedies to obtain the return of her daughter.

E. Affirmative Defense: Grave Risk of Physical or Psychological Harm

25. The Convention also provides that abducted children are not required to be returned

when the respondent shows by clear and convincing evidence that return of the child would place

the child in grave risk of physical or psychological harm, or any other “intolerable situation.”

Convention, art. 13(b); Abbott, 130 S.Ct. at 1997; Sealed Appellant, 394 F.3d at 346. Given the

concern of comity among nations, this defense is interpreted very narrowly. Van De Sande v. Van

De Sande, 431 F.3d 567, 572 (7th Cir. 2005). The safety of children is paramount, but the risk of


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harm must “truly be grave.” Id. “Even if this ‘narrow’ exception applies, though, a federal court

has ‘and should use when appropriate’ the discretion to return a child to his or her place of habitual

residence ‘if return would further the aims of the Convention.’” England, 234 F.3d at 270-71.

26. It is clear that the “grave harm” exception “is not license for a court in the

abducted-to country to speculate on where the child would be happiest. That decision is a custody

matter, and reserved to the court in the country of habitual residence.” Friedrich, 78 F.3d at 1068.

27. A grave risk of harm can exist only in two situations: (1) imminent danger to the

child (returning a child to a zone of war, famine, or disease); or (2) cases of serious abuse or

neglect, when the court in the country of habitual residence is incapable or unwilling to give the

child adequate protection. Friedrich, 78 F.3d at 1069. Neither of these situations is the case

here.

28. Respondents claim that returning DPVM to Honduras is tantamount to returning

her to a zone of war, famine, or disease because Honduras has high rates of crime and corruption.

However, the law is clear that an argument that Honduras may be more dangerous than the United

States, or that Honduras cannot afford a child the same standards of education and healthcare as the

United States, is insufficient to prove grave risk of harm. Avendano v. Smith, No. 11-556, 2011

U.S. Dist. LEXIS 126945, at *51 (D. N.M. Oct. 6, 2011). Only two years ago, the Honorable

Judge Lemmon of this very Court ordered a child returned to Honduras. Haylock v. Ebanks, No.

13-cv-432, Order and Reasons, April 30, 2013, Rec. Doc. 13 (Lemmon, J.). Only five years ago,

a Canadian court ordered a child returned to Honduras despite the respondents’ arguments

regarding Honduras’s high rates of crime and corruption. Medina v. Pallett, 2010 BCSC 259

(2010).20 Only eight years ago, the Middle District of North Carolina returned a child to

20 See Medina v. Pallett, 2010 BCSC 259 (2010) (Rec. Doc. 1-1, Exhibit “L”).


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Honduras in a case with similar facts. Alonzo v. Pineda, No. 06-800, 2007 U.S. Dist. LEXIS

9656, at *15 (M.D. N.C. Feb. 9, 2007) (finding that the abducting parent’s argument about the

dangers of Honduras was belied by that parent’s prior actions in voluntarily leaving the child in

Honduras when the parent came to the United States for an extended period of time).

29. Like other courts that have conducted this same analysis, the Court finds that the

fact that Honduras experiences problems with violence and corruption is insufficient evidence to

support a finding that Honduras is currently a zone of war, famine, or disease such that returning

the child to Honduras would create a grave risk of harm. The record is devoid of evidence that

DPVM was exposed to violence and crime while living in Honduras. San Pedro Sula, like New

Orleans, may face significant problem with crime, but that does not mean that all of its citizens are

exposed to criminal elements. Just as countless New Orleans parents have been able to raise

children safely, Ms. Molina has been able to keep DPVM safe in a statistically “high crime” area.

30. Respondents have also made allegations of abuse against Ms. Molina.

Specifically, they allege that Ms. Molina struck DPVM in the eye on one occasion, which Ms.

Molina disputes. The photo and medical records that Respondents have provided, diagnosing the

child with Blepharitis of the right eye, do not establish that the child was struck in the eye or that

Ms. Molina was the perpetrator, particularly because the definition of “blepharitis” makes it clear

that this condition is more likely to result from causes other than abuse.

31. Additionally, Respondents allege that on another occasion, Ms. Molina failed to

adequately care for a burn that DPVM incurred. Ms. Molina does not dispute that the child

suffered a burn by accident, and Respondents agree that it was an accidental injury. Ms. Molina’s

testimony established that she cared for the burn in the best manner she could. The evidence at

trial established that Ms. Molina is a good mother who cares for her child’s needs, medical and


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otherwise. The fact that Respondents believe that Ms. Molina’s response could have been better

does not render Ms. Molina’s response inadequate. The Court notes that Ms. Molina is fully

employed in Honduras and currently holds medical insurance that includes DPVM as a dependent.

For these reasons, the Court finds that Ms. Molina is capable of adequately caring for DPVM’s

medical needs. Considering the fact that these are the only “incidents” alleged to have occurred

in over five years of DPVM’s life with her mother in Honduras, the Court finds that these alleged

incidents are insufficient evidence of physical abuse and neglect, let alone evidence that DPVM

would be in grave risk if she returned to Honduras.

32. Dr. Salcedo, Respondents’ expert psychologist, conducted psychological

evaluations of DPVM, Mr. Villegas, and the grandmother. In his report, Dr. Salcedo noted that

aside from the two alleged incidents regarding DPVM’s eye and burned leg, Mr. Villegas’s other

allegations of abuse are entirely unsubstantiated, and Dr. Salcedo therefore omitted any mention of

other incidents from his expert report.21 Dr. Salcedo noted that DPVM told him about these two

alleged incidents when he examined the child, but he admitted that he “would note that it is

possible that [DPVM] may have been encouraged to bring up such issues during this

examination.”22 Dr. Salcedo also admitted that he did not ever interview Ms. Molina or hear the

facts from her perspective.23 The Court finds that Dr. Salcedo’s report and testimony are

insufficient to show by clear and convincing evidence that DPVM will be subject to a grave risk of

harm if she is returned to Honduras with her mother.

33. The evidence at trial showed that Ms. Molina is a loving and nurturing mother who

cared for DPVM’s needs throughout her life in Honduras, and the Court finds that the child would

be well cared for upon returning to her mother in Honduras. The Court finds that Respondents

21 See Expert Report of Dr. Salcedo, Respondents’ Expert Psychologist, at pg. 3.22 See Expert Report of Dr. Salcedo, Respondents’ Expert Psychologist, at pg. 6.23 See Expert Report of Dr. Salcedo, Respondents’ Expert Psychologist, at pg. 3.


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have failed to submit any credible, first-hand knowledge establishing that Ms. Molina struck

DPVM in the eye, failed to adequately care for the child after she was accidentally burned, or

physically abused the child in any other manner. See Aly v. Aden, No. 12-1960, 2013 U.S. Dist.

LEXIS 19981, at *57-58 (D. Minn. Feb. 14, 2013) (finding that where allegations of abuse by the

mother are exaggerated or not credible, there is no clear and convincing evidence of grave risk).

34. However, even if the Court were convinced that Ms. Molina struck the child or

failed to adequately care for the accidental burn, the Court still would not find clear and convincing

of serious abuse or neglect such that returning DPVM to Honduras would cause a grave risk of

physical or psychological harm. There is no grave risk where, as here, the alleged abuse is

“relatively minor” or where there are merely “sporadic or isolated incidents.” Simcox v. Simcox,

511 F.3d 594, 607-09 (6th Cir. 2007) (citing to McManus v. McManus, 354 F. Supp. 2d 62, 70 (D.

Mass. 2005) (finding that two incidents of a mother striking her children, coupled with a chaotic

home environment, failed to prove a sustained pattern of physical abuse, and therefore there was

no grave risk)). Courts require a “sustained pattern of physical abuse” or a finding of sexual

abuse in order to hold that there is a grave risk to the child. McManus, 354 F. Supp. 2d at 70; see

also Charalambous v. Charalambous, No. 10-375, 2010 U.S. Dist. LEXIS 109101, at *30-31 (D.

Me. Oct. 12, 2010), aff’d, 627 F.3d 464 (1st Cir. 2010) (citing McManus); see also Flynn v.

Borders, 472 F. Supp. 2d 906, 913 (E.D. Ky. 2007) (citing McManus); see also Arquelles v.

Vasquez, No. 08-2030, 2008 U.S. Dist. LEXIS 97048, at *41 (D. Kan. Mar. 17, 2008) (citing

McManus). Courts that have ordered the retention of children due to grave risk have been faced

with horrible facts that thankfully are not present in this case. See Danaipour v. McLarey, 385

F.3d 289 (1st Cir. 2004) (finding grave risk where the child was sexual abused by the petitioner);

see also Elyashiv v. Elyashiv, 353 F. Supp. 2d 394, 398-400 (E.D. N.Y. 2002) (finding grave risk


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where the petitioner beat the children multiple times per week and threatened to kill them with

weapons he kept in the house, and where the children were diagnosed with PTSD and suicidal

thoughts); see also Rodriguez v. Rodriguez, 33 F. Supp. 2d 456, 459-60 (D. Md. 1999) (finding

grave risk where the child had been kicked, punched, and beaten with belts, and where the father

threatened to kill the child and kept a loaded gun). Courts have found no grave risk even in cases

where the mother to whom the child will be returned is actively engaging in prostitution. Taylor

v. Hunt, No. 12-530, 2013 U.S. Dist. LEXIS 23183, at *22-23 (E.D. Tex. Jan. 11, 2013).

Additionally, courts have found no grave risk where there are “[a]llegations about name-calling,

adultery, drug use, alcohol abuse, and exposure of the children to court proceedings,” because

although such allegations “indicate serious problems within [the] family,” they do not constitute

clear and convincing evidence of grave risk. Jaet v. Siso, No. 08-81232, 2009 U.S. Dist. LEXIS

169, at *20-21 (S.D. Fla. Jan. 5, 2009). Given this precedent, the Court finds that even if the two

alleged incidents in this case actually occurred, those incidents would be isolated and sporadic and

thus would not establish a sustained pattern of physical abuse that merits a finding of grave risk.

35. In addition to the abuse allegations, Respondents also allege that Ms. Molina has

improperly involved police action in their custody dispute and that Ms. Molina does not take an

active interest in DPVM’s school life and other activities. They also contend that Ms. Molina is

estranged from the child and that the child feels closer to her grandparents than to her mother.

However, Ms. Molina’s testimony and other evidence at trial demonstrated that Ms. Molina loves

her daughter and was involved in her daughter’s life in Honduras. Since the abduction, Ms.

Molina has contacted DPVM by telephone to the extent Respondents would allow. Ms. Molina

has actively attempted to maintain a long distance relationship with her daughter, as best she could

under the circumstances, despite her daughter’s abduction to the United States. The Court


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therefore finds that this is not a case of a child being returned to someone who is essentially a

stranger to the child, as alleged by Respondents.

36. The fact that Respondents do not approve of Ms. Molina’s mothering style

certainly does not rise to the level of clear and convincing evidence of grave risk and therefore is

not an issue for this Court to consider in this purely jurisdictional determination. Those types of

considerations are fodder for the Honduran Family Court, which will have the task of resolving the

ultimate issue of custody between the parties. Additionally, the Court does not find that alleged

estrangement from the mother constitutes grave risk because “nearly every Convention case, by its

very nature, involves some estrangement of the parents.” Aly, 2013 U.S. Dist. LEXIS 19981, at

*56-57 n.17.

37. The Court also finds that Honduras, the country of habitual residence, is fully

capable and willing to give DPVM adequate protection from any hypothetical abuse. Ms.

Molina’s expert on Honduran law, Mr. Chavez, made it clear that Honduran family courts are

willing and able to determine DPVM’s best interests in any underlying custody dispute.24

38. Respondents argue that the Honduran courts cannot adequately protect the child

because Ms. Molina has disobeyed prior Institute agreements by keeping the child for longer than

her allotted time. The Court finds this argument unconvincing. Respondents could have raised

this issue immediately with the Institute, but they did not. The Court finds it quite bold that

Respondents have cast stones against Ms. Molina for failing to follow the Institute’s resolutions to

which she agreed in a solely administrative proceeding when Respondents have themselves

violated the same resolutions and an international treaty by wrongfully removing DPVM from

Honduras. Respondents’ argument is entirely unconvincing given their failure to raise the issue

24 See Expert Report of Henry Javier Chavez, attached hereto as Exhibit “D,” at pg. 2-3.


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in Honduras and their subsequent disregard for the Institute’s resolutions. Additionally, the

Honduran legal system is sufficiently sophisticated to include methods of enforcement against

litigants who fail to comply with orders of the family courts in custody cases, and these methods

will adequately protect the child.

39. Respondents also allege that removing DPVM from the United States will result in

psychological harm, and Dr. Salcedo’s expert opinion supports this conclusion. The Court

acknowledges that separating a child from any family member is less than ideal and may have

psychological and emotional effects on the child. Nevertheless, this outcome was certainly

anticipated by the drafters of the Hague Convention and ICARA, which both err on the side of

returning the child to her habitual residence. A finding by this Court that this potential

psychological harm constitutes grave risk would result in an unfair tipping of the scales of justice

in favor of the abductor and would undermine the very efficacy of the Hague Convention and

ICARA. Such a finding would mean that the very fact that separating a child from the abducting

family member may naturally result in some emotional distress automatically necessitates a

finding of grave risk such that the child should remain with the abductor. This result is the exact

opposite of the articulated purpose of the Hague Convention and ICARA, which require the Court

to return the child unless a true exception applies. Sealed Appellant, 394 F.3d at 344 (“shall order

the return of the child forthwith”) (quoting Convention, art. 12). Further, to give disproportionate

weight to the emotional and psychological impact of a return on the child would deprive the

country of habitual residence, Honduras, of the ability to address the best interests of its young

citizen as part of a custody proceeding under that country’s laws, which would undercut the Hague

Convention’s goal of international comity.


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40. The Fifth Circuit addressed this very issue in England, where the court found that it

is inappropriate to consider potential psychological difficulty for the child caused by returning to

the country of habitual residence as part of the grave risk analysis. England, 234 F.3d at 271-72.

The First, Sixth, and Eighth Circuits agree. See Walsh, 221 F.3d at 220 n.14 (“We disregard the

arguments that grave risk of harm may be established by the mere fact that removal would unsettle

the children who have now settled in the United States. That is an inevitable consequence of

removal.”); see also Friedrich, 78 F.3d at 1067-68 (finding that the child’s attachment to friends

and family in the country of abduction constituted “nothing more than adjustment problems that

would attend the relocation of most children,” which cannot establish grave risk “[i]f we are to take

the international obligations of American courts with any degree of seriousness.”); see also

Nunez-Escudero, 58 F.3d at 377 (finding that “[t]he district court incorrectly factored the possible

separation of the child from his [parent] in assessing whether the return of the child to Mexico

constitutes a grave risk.”).

41. As the Friedrich court acknowledged, this Court is charged solely with

determining the jurisdictional issue of whether the child has been wrongfully removed and thus

which country has jurisdiction over the underlying custody dispute, not with determining in which

country the child would be happiest. Friedrich, 78 F.3d at 1068. Respondents themselves admit

that “[t]he Convention’s procedures are not designed to settle international custody disputes, but

rather to restore the status quo prior to any wrongful removal or retention, and to deter parents

from engaging in international forum shopping in custody cases.”25

42. Additionally, any psychological or emotional harm to DPVM caused by her

relocation to Honduras can be remedied if Respondents return to Honduras to visit DPVM. Mr.

25 See Respondents’ Opposition (Rec. Doc. 16, at p. 2) (emphasis added).


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Villegas and the grandparents are all Honduran citizens and are permitted to travel between the

United States and Honduras at their leisure. The grandmother admitted to Dr. Salcedo during her

psychological evaluation that Respondents have a nice house in Honduras with adequate security

systems.26 It therefore appears that nothing prevents Respondents from returning to Honduras for

visits. Any potential psychological or emotional harm to the child would result from

Respondents’ choice not to return to Honduras or visit the child, not from this Court’s decision to

return the child to the country of her habitual residence.

43. For these reasons, Respondents have failed to prove by clear and convincing

evidence that a grave risk exists, and therefore this affirmative defense does not apply.

F. Affirmative Defense: “Well Settled” Defense

44. Additionally, Article 12 of the Convention allows a court to deny a petition if the

respondent shows, by a preponderance of the evidence, that the child is settled in the new

environment. Convention arts. 12. However, the Convention contains a bright line rule that the

“well settled” exception only applies when the child has been settled in the new environment for a

full year:

Where a child has been wrongfully removed or retained in terms ofArticle 3, and, at the date of the commencement of the proceedingsbefore the judicial or administrative authority of the ContractingState where the child is, a period of less than one year has elapsedfrom the date of the wrongful removal or retention, the authorityconcerned shall order the return of the child forthwith. … Thejudicial or administrative authority, even where the proceedingshave been commenced after the expiration of the period of one year… shall also order the return of the child, unless it is demonstratedthat the child is now settled in its new environment.

Id.

26 See Expert Report of Dr. Salcedo, Respondents’ Expert Psychologist, at pg. 5.


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45. The “well settled” exception does not apply in this case because DPVM has not

resided in the United States for a full year.

46. Respondents argue that despite the fact that DPVM has not resided in the United

States for a full year, this Court should consider DPVM’s settled status in the United States for

purposes of the grave risk analysis because returning the child to Honduras will cause her

psychological harm.

47. The Court has already addressed the issue of psychological or emotional trauma

potentially resulting to the child upon her return to Honduras in its consideration of the grave risk

exception. As discussed supra, the Court finds this argument unpersuasive.

G. Affirmative Defense: Mature Child Objects to Being Returned

48. Additionally, a court has discretion to “refuse to order the return of the child if it

finds that the child objects to being returned and has attained an age and degree of maturity at

which it is appropriate to take account of its views.” England, 234 F.3d at 272.

49. Courts have found that children of ages four and six are of such “tender ages” that

their preferences should not be considered. Pesin v. Osorio Rodriguez, 77 F. Supp. 2d 1277, 1285

(S.D. Fla. 1999). In fact, it is judicially recognized that children as old as eight-years-old are

highly susceptible to manipulation by their abductors and are not mature enough for their

preferences to be considered. Alonzo, 2007 U.S. Dist. LEXIS 9656, at *15-16.

50. Respondents argue that DPVM, at a mere six-years-old, has sufficient age and

maturity for her preference to be considered, and that DPVM expressed a clear preference to

remain in the United States during her psychological evaluation with Dr. Salcedo.


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51. However, even Dr. Salcedo, Respondents’ own expert, acknowledged in his report

that manipulation by Respondents was a possibility: “I would note that it is possible that [DPVM]

may have been encouraged to bring up such issues [regarding abuse] during this examination.”27

52. The Court declines to find that DPVM has attained sufficient age and maturity such

that her stated preference to remain in the United States triggers this affirmative defense.

H. Interests of Comity

53. For this Court to hold that the courts of Honduras could not effectively determine

the best interests of DPVM, a Honduran citizen, would undermine the very international comity

that is the basic purpose of the Hague Convention and ICARA.

54. There is no reason why Honduras should not be permitted to have its courts and its

laws apply to DPVM, a minor citizen and habitual resident of Honduras. Other federal courts

have found Honduras to be an adequate forum in cases where the more rigorous forum non

conveniens analysis is applied. See Rodriguez v. Shell Oil Co., 950 F. Supp. 187, 188 (S.D. Tex.

1996) (acknowledging its prior finding that Honduras is an adequate forum); see also Membreno v.

Costa Crociere, 347 F. Supp. 2d 1289, 1298 (S.D. Fla. 2004), aff’d, 425 F.3d 932 (11th Cir. 2005)

(finding that Honduras is an adequate forum); see also Stalinski v. Bakoczy, 41 F. Supp. 2d 755,

758 (S.D. Ohio 1998) (finding that Honduras is an adequate alternative forum).

55. The testimony of Mr. Chavez, as well as a review of the Honduran Family Code,

makes it clear that Honduras has a strong interest in resolving any controversy regarding DPVM,

who is a minor Honduran citizen, and that the Honduran family courts will adequately determine

the best interests of the child in the underlying custody dispute.28

27 See Expert Report of Dr. Salcedo, Respondents’ Expert Psychologist, at pg. 6.28 See Expert Report of Henry Javier Chavez, attached hereto as Exhibit “D,” at pg. 2; see also HonduranFamily Code Arts. 186 & 187 (Rec. Doc. 1-1, Exhibit “K”). An English translation of the Honduran Family Codearticles is attached hereto as Exhibit “A.”


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56. Respondents are Honduran citizens and have previously attended proceedings at

the Institute in Honduras, where they were represented by a Honduran attorney. Respondents

have thus displayed their ability to meaningfully participate in the Honduran legal process.

57. Therefore, the Court finds that Honduras is both an adequate forum, and the only

appropriate forum, for any underlying custody dispute regarding DPVM to be resolved.

I. Relief

58. This Court has found that Ms. Molina has established a prima facie case under the

Hague Convention and ICARA and that none of the affirmative defenses applies. The Court has

also found that the interests of international comity set forth in the Hague Convention and ICARA

will be best served in this case by returning DPVM to Honduras, her country of habitual residence,

such that the Honduran courts may adjudicate the underlying custody dispute. Given these

findings, the Court is required to order the return of DPVM to Honduras immediately. Sealed

Appellant, 394 F.3d at 344 (quoting Convention, art. 12).

59. Where, as here, a court has ordered the return of the child to his habitual residence,

the court must order the respondent-abductor to pay “necessary expenses incurred by or on behalf

of the petitioner,” unless to so order would be “clearly inappropriate.” Saldivar v. Rodela, 894 F.

Supp. 2d 916, 923 (W.D. Tex. 2012) (citing 42 U.S.C. § 11607(b)(3) and Sealed Appellant, 394

F.3d at 346).

60. In enacting ICARA and making the reimbursement provisions mandatory,

Congress sought to enforce a policy of placing the burden of child abduction squarely on the

abductor, both for equitable reasons and to discourage wrongful conduct:

The third and final paragraph of § 11607(b) is the fee-shiftingprovision of ICARA. It “reflects” a cognate provision in theConvention: the last paragraph of Article 26. H.R. Rep. 100–525(1988) (House Judiciary Committee Report on ICARA), reprinted


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in 1988 U.S.C.C.A.N. 386, 395. These two fee-shifting provisionsare nearly identical, with one big difference: ICARA makes a feeaward mandatory, whereas Article 26 makes it discretionary. SeeSealed Appellant, 394 F.3d at 346 (comparing Article 26 and §11607(b)(3) and noting “ICARA more strongly states the court‘shall order the [removing parent] to pay necessary expenses …’”(emphasis and alterations in original) (quoting § 11607(b)(3)).Section 11607(b)(3), like its counterpart in Article 26, was intendednot only to compensate the bearers of the expenses incurred due tothe respondent's wrongful conduct, but also to provide “anadditional deterrent to wrongful international child removals andretentions.” H.R. Rep. 100–525, supra. See also ConventionAnalysis 51 Fed. Reg. 10494, 10511 (“The purposes underlyingArticle 26 are to restore the applicant to the financial position he orshe would have been in had there been no removal or retention, aswell as to deter such conduct from happening in the first place.”).

Saldivar, 894 F. Supp. 2d at 225-26. Considering the clear language of ICARA and the intent of

Congress to place the cost of abduction on the abductor, Ms. Molina is entitled to recover her

expenses, costs, and legal fees related to DPVM’s abduction to the United States by Respondents.

61. Accordingly, based on the foregoing,

IT IS HEREBY ORDERED that Respondents immediately surrender custody of DPVM

to her mother, Petitioner Maritza Yolanda Molina Melendez, and that Ms. Molina may

immediately return to Honduras with the child.

IT IS FURTHER ORDERED that Respondents fully cooperate with Ms. Molina in the

gathering of any of DPVM’s belongings, or in any other respect that is necessary for the removal

of the child to Honduras.

IT IS FURTHER ORDERED that Respondents shall pay to Ms. Molina [amount to be

proven at trial] in expenses, costs, and legal fees. The Court further retains jurisdiction over any

future expenses.


4205039_1

CERTIFICATE OF SERVICE

I hereby certify that a copy of the above and foregoing has been served upon Respondents,

Jaime Enrique Villegas Zerón, Rosa María Zerón Rodriguez, and Camilo Villegas Roura

the Court’s CM/ECF filing system, this 26th day of March, 2015.

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Respectfully submitted:

Raymond T. Waid (#31351)Mirais M. Holden (#35173)LISKOW & LEWIS701 Poydras Street, Suite 5000New Orleans, LA 70139-5099Telephone: (504) 581-7979Facsimile: (504) 556-4108

Attorneys for Petitioner,Maritza Yolanda Molina Melendez

CERTIFICATE OF SERVICE


Jaime Enrique Villegas Zerón, Rosa María Zerón Rodriguez, and Camilo Villegas Roura

the Court’s CM/ECF filing system, this 26th day of March, 2015.

Maritza Yolanda Molina Melendez


Jaime Enrique Villegas Zerón, Rosa María Zerón Rodriguez, and Camilo Villegas Roura, through


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