June 1, 2016
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 15 C 11411 - John
J. Tharp, Jr., Judge.
Wood, Chief Judge, and Bauer and Flaum, Circuit Judges.
first seven years of A.M.'s life, he lived in Illinois
with his mother, Jaded Mahelet Ruvalcaba Martinez. A.M.'s
father, Peter Valdez Cahue, lived nearby, although he and
Martinez never married. They entered into a private
arrangement, never formalized through a court order, for
custody and visitation rights. The events leading to the
lawsuit before us arose when, in 2013, Martinez moved to
Mexico and took A.M. with her. About a year later, Cahue
persuaded Martinez to send A.M. to Illinois for a visit; he
then refused to return A.M. to Mexico. Martinez petitioned
for his return under the Hague Convention on Civil Aspects of
International Child Abduction ("the Convention"),
T. I .A. S . No. 11670, 1343 U.N.T.S. 89 (Oct. 25, 1980), to
which both the United States and Mexico are parties. The
Convention has been implemented in the United States through
the International Child Abduction Remedies Act, 22 U.S.C.
§§ 9001 et seq.
heavily on its finding that Martinez and Cahue did not share
the view that A.M.'s habitual residence (a term of art
under the Convention) would be shifted to Mexico, the
district court found that Illinois remained A.M.'s
habitual residence and dismissed Martinez's petition. We
conclude that the district court asked the wrong question,
and thus came to the wrong answer. At all relevant times,
Martinez had sole custody of A.M. under Illinois law, while
Cahue had no right of custody either under Illinois law or
the Convention. That means that only Martinez's intent
mattered, and it is plain that Martinez wanted A.M.'s
habitual residence transferred to Mexico. Cahue's
retention of A.M. in Illinois was therefore wrongful and he
must be returned to Mexico.
was born in 2006 in the Chicago suburb of Oak Lawn, Illinois.
Although Cahue voluntarily acknowledged his paternity at
A.M.'s birth, A.M. lived with Martinez for his entire
life until Cahue retained him in Illinois in 2014. With minor
exceptions, Martinez and Cahue lived separately for most of
their ten-year on-again, off-again relationship. They appear
to have cooperated relatively well, however, with respect to
A.M. On February 24, 2010, Martinez and Cahue entered into a
private written custody agreement in which Cahue stipulated
that he would "NOT fight custody in court for [A.M.],
" but would be guaranteed "constant access"
and overnight visits "2 nights a week." Neither
parent ever took steps to memorialize this arrangement in a
spring of 2013 Martinez, a Mexican citizen who worked at the
Mexican Consulate in Chicago, began contemplating a move back
to Mexico. She asserts that "everyone, " including
Cahue, knew that she was moving. He denies that he knew that
she was planning to relocate permanently to Mexico
or that she was planning to change A.M.'s domicile.
Instead, Cahue says, Martinez told him that she and A.M. were
going to Mexico on vacation. The district court believed
Cahue's version of events and found that Martinez did not
tell Cahue that she was taking A.M. to live in Mexico.
Martinez has not challenged that factual finding on appeal,
and so we accept it.
26, 2013, Cahue signed a notarized letter authorizing A.M. to
travel to Mexico. After two weeks, he began calling Martinez
and asking when she planned to return. On August 7, he sent
her $300 for gas, because (he says) Martinez had told him
that she might drive back to Chicago. Then Martinez stopped
communicating with Cahue altogether. Cahue contacted
Martinez's mother, sister, and father, but learned
nothing; he also spoke with the Oak Lawn police, who told him
that there was nothing they could do.
meantime, Martinez and A.M. settled into their new life in
Mexico. Martinez began work, and A.M. enrolled in a highly
regarded private school in Aguascalientes. After a brief
period of adjustment, A.M. excelled in the new school. He
played soccer (fútbol) on several elite teams, and he
earned a scholarship. He had friends at school and on his
sports teams, spoke Spanish fluently, attended church
regularly, and spent time with his extended family in Mexico.
from Cahue's point of view, matters were not settled.
That fall, he consulted an attorney, who informed him of his
rights under the Convention. The attorney began preparing
documents for a petition Cahue could file under the
Convention, but he had to withdraw after discovering what he
considered a conflict of interest. Cahue did not seek
alternate representation, nor did he file the petition
Martinez pursued legal action in Mexico. On October 16, 2013,
she filed a petition against Cahue for child support and an
order of protection. Martinez testified that she told Cahue
about the petition, but she never served it on him. Instead,
she and Cahue agreed to a visitation plan and she dropped the
petition before the Mexican court ruled on it. According to
the plan, Cahue and A.M. would see each other in December
2013, April 2014, and July 2014, during A.M.'s school
vacations. The December visit did not take place, but
Martinez and Cahue made plans for A.M. to visit Cahue in
April 2014 as contemplated.
December 2013, Cahue began communicating with the U.S.
Department of State. A person on the Mexican desk, Rosemarie
Skelly Mendoza, explained his rights under the Convention and
sent him a blank petition for relief. Cahue never filed it,
but he did keep in touch with the State Department by email.
As planned, A.M. visited his father during the April 2014
spring break, from April 26 through May 4, and at the end of
the visit, Cahue sent him back to Mexico. Cahue testified
that he thought about keeping A.M. at that time, but he did
not because Martinez had already agreed to allow A.M. to
visit Cahue that summer, and he did not want to disrupt
A.M.'s school year.
July, Martinez again sent A.M. to Chicago as agreed, thinking
that he would stay there for another short visit and be back
in time to start school on August 18, 2014. At first, Cahue
bought only a one-way air ticket, but Martinez called his
bluff: she refused to allow A.M. to travel without a return
ticket. Cahue appeared to capitulate and bought the roundtrip
ticket. But Martinez's ...