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Martinez v. Cahue

United States Court of Appeals, Seventh Circuit

June 24, 2016

Jaded Mahelet Ruvalcaba Martinez, Petitioner-Appellant,
v.
Peter Valdez Cahue, Respondent-Appellee.

          Argued June 1, 2016

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 15 C 11411 - John J. Tharp, Jr., Judge.

          Before Wood, Chief Judge, and Bauer and Flaum, Circuit Judges.

          Wood, Chief Judge.

         For the 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.

         Relying 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.

         I

         A.M. 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 court order.

         In the 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.

         On July 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.

         In the 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.

         But 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 pro se.

         Meanwhile, 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.

         In 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.

         In 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 ...


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