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Lopez v. Bamaca

United States District Court, D. Delaware

December 13, 2019

JONATAN NATANAEL CANCHE LOPEZ Petitioner,
v.
BASTY YAMID CAMEL BAMACA Defendant.

          MEMORANDUM ORDER

          HONORABLE LEONARD P. STARKUNITED STATES DISTRICT JUDGE

         WHEREAS, Jonatan Natanael Canche Lopez ("Petitioner"), a citizen of Mexico residing in the Mexican State of Quintana Roo, filed a petition on May 30, 2019 (D.I. 2) seeking return of his three-year old daughter, J. Y.C.C. ("Child"), pursuant to the Hague Convention on the Civil Aspects of International Child Abduction ("Hague Convention"), see Convention on the Civil Aspects of lnt'l Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670; see also 22 U.S.C. §§ 9001-9011 (implementing Hague Convention);

         WHEREAS, Basty Yamid Camel Bamaca ("Respondent"), a citizen of Guatemala - who is the mother of Child and married to Petitioner - is alleged by Petitioner to have wrongfully removed Child to the United States in December 2018 and to have wrongfully retained Child in the United States since that date;

         WHEREAS, Petitioner bears the burden to establish by a preponderance of the evidence the wrongful removal and/or retention under the Hague Convention, see 22 U.S.C. 9003;

         WHEREAS, the Court in this case must determine: "(1) when the removal or retention took place; (2) the child's habitual residence immediately prior to such removal or retention; (3) whether the removal or retention breached the petitioner's custodial rights under the law of the child's habitual residence; and (4) whether the petitioner was exercising his or her custody rights at the time of removal or retention," Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259, 270-71 (3d Cir. 2009);

         WHEREAS, the parties to this action have stipulated to Petitioner's establishment of the first three prongs of this standard and agree, therefore, that the Court need assess only the fourth prong of the Hague Convention analysis: that is, whether Petitioner was exercising his custody rights at the time of removal or retention (D.L 61; D.I. 69 at 3; 11/26/19 Tr. at 4; 11/7/19 Tr. at 14);

         WHEREAS, Respondent has further stipulated that: "(a) Mr. Lopez is Child's father; (b) the law of Quintana Roo, Mexico gives Mr. Lopez custody rights over Child; (c) at the Time of Removal, no Mexican court had annulled Mr. Lopez's custody rights over Child; and therefore (d) Ms. Bamaca's removal of Child to the United States at the Time of Removal breached Mr. Lopez's custody rights under the law of Quintana Roo, Mexico" (D.I. 71 at 5);

         WHEREAS, "once the petitioner has proven his or her case, the burden shifts to the respondent to prove an affirmative defense against the return of the child to the country of habitual residence," and "even where a defense applies, the court has the discretion to order the child's return." Tsai-Yi Yang, 499 F.3d at 271;

         WHEREAS, Respondent Bamaca raises the following two affirmative defenses:

First Affirmative Defense: Failure to State a Claim The Petition fails to state a claim upon which relief may be granted in that the Petition does not plead facts to establish wrongful removal by a preponderance of the evidence as required under Article 3 of the Hague Convention and 22 U.S.C. § 9003(e)(1)(A).
Second Affirmative Defense: Non-Exercise of Custody Rights [Respondent] will establish by a preponderance of the evidence that [Petitioner] was not exercising his custody rights at the time of removal or retention as articulated in Article 13(a) of the Hague Convention and 22 U.S.C. § 9003(e)(2)(B).

(D.I. 32 at ¶¶ 38-39)

         WHEREAS Petitioner has filed a "Motion to Find Original Petition (D.I. 2) Sufficient or Amend" (D.I. 72) and has further requested the opportunity to conform the Petition to the evidence (12/4/2019 Tr. at 12, 122-23);

         WHEREAS the Court held an evidentiary hearing on December 4, 2019, observing direct, cross, and redirect testimony from both Petitioner Lopez (by telephone from Mexico) and Respondent Bamaca, with the assistance of two ...


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