Jose Primitivo Jaimes Sierra ("Jaimes") filed a petition under the Hague Convention for return of K.J.R., his now 7-year-old daughter, to Mexico. Nasly Ximena Riascos Tapasco ("Riascos"), the child's mother, took K.J.R. from Mexico to Texas without Jaimes's approval in July 2014. The district court held that Jaimes carried his burden to prove by a preponderance that K.J.R.'s habitual residence was supplanted to Mexico. Riascos appeals. Because we conclude that the district court did not err in finding that Jaimes carried his burden to prove the parties shared a mutual intent to change K.J.R.'s habitual residence to Mexico, we AFFIRM.
This suit arises under the Hague Convention on the Civil Aspects of International Child Abduction ("Convention"), as implemented by Congress through the International Child Abduction Remedies Act,
Jaimes and Riascos met in Charlotte, North Carolina in 2006, moved in together, and never married. Riascos had K.J.R. on July 23, 2009. Jaimes is a Mexican national who was living in the United States illegally. Riascos, a Colombian national, is legally in the United States on a visa.
In 2011, Jaimes pleaded guilty to a domestic violence charge brought against him for injuries Riascos sustained.
Jaimes and K.J.R. initially lived with Jaimes's mother and eventually moved into their own apartment in Mexico City. Two months after Jaimes left the United States, in December 2012, Riascos visited Mexico, stayed with Jaimes and K.J.R. in Jaimes's apartment, and returned to the United States without taking the child. Riascos visited Mexico again in June 2013 for a few days, stayed in Jaimes's apartment, and returned to the United States without taking the child. Riascos again returned to Mexico the following month in July 2013 to celebrate K.J.R.'s birthday and stayed for approximately 20 days. After that trip, Riascos returned to the United States without taking the child.
Jaimes and K.J.R. traveled from Mexico to Colombia in December 2013. Riascos met them in Colombia a couple weeks later. The three stayed in Colombia for about a month and a half. Jaimes testified that he asked Riascos if she wanted to take K.J.R. with her to the United States and she declined. At the end of their trip, Riascos executed a second travel authorization letter allowing K.J.R. to travel with Jaimes back to Mexico.
In February 2014, Jaimes updated K.J.R.'s immunizations and enrolled her in school for the upcoming fall term. In the following months, Riascos claims that Jaimes threatened her and told her that she would never see K.J.R. again.
Riascos returned to Mexico for K.J.R.'s fifth birthday in July 2014. From this point onward, through the child's abduction, the parties' stories greatly diverge.
Jaimes testified he never saw Riascos in Mexico in July 2014; in fact, he said he had not seen her since their trip to Colombia earlier that year. Jaimes testified that he dropped K.J.R. off at his sister's home on the evening of July 22 to spend the night, did some shopping for his daughter's birthday party the following day, spent the night in his own home that evening, and heard from his sister the following morning that K.J.R. was missing.
Riascos testified that she did not tell Jaimes she was coming to Mexico for K.J.R.'s birthday, but she showed up at his home on July 22. When Riascos arrived, she said Jaimes started insulting and hitting her. She said that Jaimes took K.J.R. out of her arms and threw K.J.R. on the bed. Eventually, she said, Jaimes took Riascos and K.J.R. to his sister's home to spend the night. Early the next morning, Riascos and K.J.R. left Mexico on a bus heading to Riascos's home in Houston.
Jaimes filed a verified complaint and petition for return of child under the Convention. Riascos filed a motion to dismiss on forum non conveniens grounds and alternatively to abstain. The district court denied the motion and, after an evidentiary hearing, held that Jaimes carried his burden to establish that K.J.R's habitual residence was Mexico, that Jaimes had the "rights of custody" required, and that he was exercising those rights during the time K.J.R. was removed from Mexico.
The only significant issue before the Court is whether the district court erred in determining the habitual residence of the child was supplanted to Mexico and whether the parties shared a mutual intent that the child abandon her U.S. residence and establish one in Mexico.
To prevail in a petition for return of child, Jaimes must prove by a preponderance of the evidence:
So a court's primary inquiry, and the sole issue before us, is whether the child was wrongfully removed from her country of "habitual residence."
To determine a child's "habitual residence," the court "begins with the parents' shared intent or settled purpose regarding their child's residence."
The facts recited above support the district court's findings that K.J.R.'s habitual residence was Mexico and the parties shared a mutual intent that K.J.R. abandon her U.S. residence and establish a new one in Mexico. We therefore AFFIRM the district court's judgment.