USA – TX – FLORES- 1998

USA – TX – FLORES- 1998 (Return ordered) (FLORES v CONTRERAS). The lower court ruled that Mexico was the habitual residence of the child and that the father wrongfully retained the child in the USA. The father appeals the lower court decision. The appeals court affirmed the lower courts ruling.


Flores v. Contreras (Tex.App. Dist. 4 1998)981 S.W.2d 246
28 International Abduction [USA 1998]


Flores v. Contreras

981 S.W.2d 246 (Tex.App. Dist.4 1998)

Texas Court of Appeals

No. 04-97-00742-CV

17 Jun 1998




Sitting: Phil Hardberger, Chief Justice Tom Rickhoff,
Justice Karen A. Angelini, Justice

From the 57th Judicial District Court, Bexar County, Texas

Trial Court No. 97-CI-08364

Honorable Carlos Cadena, Judge Presiding

Opinion by: Tom Rickhoff, Justice


001 This case of first impression for Texas requires
interpretation of the International Child Abduction Remedies
Act (“ICARA”), 42 U.S.C. Secs 11601-11610 (1988).

002 Jose Ruben Flores (“Jose”) appeals the order of the
trial court to return his son, Ruben Ramon Flores (“Ruben”)
to Mexico under the Hague Convention on the Civil Aspects of
International Child Abduction and ICARA, its implementing
legislation. The court determined that Mexico was the
habitual residence of the child and that Jose wrongfully
retained Ruben when Ruben’s mother, Beatriz Martinez
Contreras, brought him to San Antonio for a visit. In his
sole issue Jose challenges the sufficiency of the evidence
to support the finding that Ruben’s habitual residence was
Mexico. We affirm the judgment of the trial court.

Procedural History

003 Jose Flores, an American citizen and San Antonio
resident, went to Mexico ostensibly seeking romance. He ran
radio spots on a Mexico City-area radio station; Beatriz
Martinez Contreras (“Beatriz”), a resident of Toluca,
Mexico, responded to the spots. Jose went to Toluca to court
her two or three days a month. When Beatriz became pregnant,
the visits dropped off although cards and letters continued
to come. Ruben Ramon Flores (“Ruben”), was born September
24, 1996. The child was registered by both his parents as a
Mexican citizen living in Toluca; the birth certificate
acknowledges Jose as the father. Ruben also was registered
as the child of an American born abroad and given an
American passport.

004 Ruben lived with his mother for 50 days in Toluca
until they came to San Antonio in November 1996; mother left
without the child in December. Beatriz contends she came for
a two-week vacation (a two-week visa is in evidence) and
stayed until Jose and his ex-wife, with whom he was living
at the time, forced her to leave the country without her
child. Jose contends she came to San Antonio to marry him,
changed her mind and left the child with him willingly.
Beatriz began working to secure the return of her child upon
her return to Mexico. She eventually caused this petition to
be filed in a Bexar County district court. Jose
counterclaimed with a Suit Affecting the Parent-Child
Relationship. The evidence presented by Beatriz suggests his
real motivation was to father a child, remove the child to
the states, and raise the child without the encumbrances of
the natural mother.

005 The case was tried to the court on June 27, 1997. The
court ordered return of the child to Beatriz and dismissed
Jose’s counterclaim. In its order, the court entered
findings that Beatriz was actually exercising custody of
Ruben at the time of her travel to San Antonio, that Jose
had wrongfully retained the child, and that Ruben was
habitually residing in Mexico immediately before Jose’s
wrongful retention. The court dismissed Ruben’s SAPCR
counterclaim for want of jurisdiction. The court overruled
Jose’s motion for new trial after a hearing.

The Hague Convention

006 The Hague Convention attempts to “protect children
internationally from the harmful effects of their wrongful
removal or retention and to establish procedures to ensure
their prompt return to the state of their habitual
residence, as well as to secure protection for rights of
access.” Hague Convention, Preamble. Both Mexico and the
United States are signatories to the convention.

007 Retention or removal of a child is wrongful under the
Hague Convention where:

(a) it is in breach of rights of custody
attributed to a person . . . under the law of
the State in which the child was habitually
resident immediately before the removal or
retention; and

(b) 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.

Hague Convention, Article 3. The convention thus seeks to
restore the “factual” status quo which is unilaterally
altered when a parent abducts a child and aims to protect
the legal custody rights of the non-abducting parent. Hague
International Child Abduction Convention; Text and Legal
Analysis, 51 Fed. Reg. 10494, 10505 (1986). This is in
contrast to other uniform acts, such as the Uniform Child
Custody Jurisdiction Act, which require a court decree to be
operative. Id.

008 ICARA is the Hague Convention implementing
legislation in the United States. It grants concurrent
jurisdiction to state and federal courts to determine only
the merits of any abduction claim; it does not grant
jurisdiction to reach the underlying custody dispute. 42
U.S.C.A. Sec 11603(a); Friedrich v. Friedrich, 983 F.2d
1396, 1400 (6th Cir. 1993). These remedies apply with equal
force to the offspring of a union not yet sanctioned by
formal marriage. Falls v. Downie, 871 F.Supp. 100, 101 (D.
Mass. 1994).

009 Although ICARA has not been construed in Texas or the
Fifth Circuit, there are numerous federal cases interpreting
the statute which we will use for guidance.

010 In order to invoke Hague Convention relief, a
petitioner must satisfy two conditions: 1) the petitioner
must have lawful rights of custody at the time of the
removal or retention, and 2) such removal or retention must
be from the child’s “habitual residence.” Meredith v.
Meredith, 759 F.Supp. 1432, 1434 (D.Ariz. 1991). Jose
attacks the second prong of this formulation, arguing the
trial court erred as a matter of law in finding that Ruben’s
habitual residence was Mexico. We therefore turn to the
question of the child’s habitual residence.

Habitual Residence

011 Jose argues the threshold determination of habitual
residence is dispositive of this appeal. We agree. Neither
the Hague Convention nor ICARA apply unless a child has been
removed or withheld from the child’s habitual residence.
Falls, 871 F.Supp. at 102; Meredith, 759 F. Supp. at 1437.

1. Defining the Term

012 The term “habitual residence” is nowhere defined in
the convention or ICARA; rather, it is a concept intended to
be applied to the facts and circumstances of each case.
Rydder v. Rydder, 49 F.3d 369, 373 (8th Cir. 1995).

013 One of the most quoted sources on interpreting the
concept of habitual residence is In re Bates (a Minor), No.
CA 122.89, High Court of Justice, United Kingdom (1989),
which states that a “degree of settled purpose” is essential
to determining habitual residence:

All that the law requires is that there is a
settled purpose. That is not to say that the
propositus intends to stay where he is
indefinitely. Indeed his purpose while settled
may be for a limited period . . . All that is
necessary is that the purpose of living where
one does has a sufficient degree of continuity
to be properly described as settled.

014 The case goes on to say that the concept of habitual
residence should not be hedged about with technicalities:
“The facts and circumstances of each case should continue to
be assessed without resort to presumptions or
presuppositions.” Id.

015 Federal courts are in agreement that to determine the
habitual residence, the court must focus on the child, not
the parents, and examine past experience, not future
intentions. Friedrich, 983 F.2d at 1401. Future intentions
harbored by one parent are irrelevant to the court’s
inquiry. Id. 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 (3rd Cir. 1995).

2. The Standard of Review

016 When determining habitual residence, the trial court
sitting as trier of fact is required to undertake a
fact-intensive inquiry and from that inquiry draw a legal
Conclusion. We believe this presents a classic mixed
question of law and fact.

017 When a matter involving both factual determinations
and legal conclusions is decided by the trial court, Texas
courts generally employ the abuse of discretion standard.
Pony Express Courier Corp. v. Morris, 921 S.W.2d 817 (Tex.
App.-San Antonio 1996, no writ). By applying the abuse of
discretion standard, the reviewing court defers to the trial
court’s factual determinations while properly fulfilling its
role to determine questions of law de novo. See Walker v.
Packer, 827 S.W.2d 833, 839-840 (Tex. 1992) (describing
appellate review of the trial court’s legal determinations
as less deferential than review of factual determinations);
see also Downer v. Aquamarine Operators Inc., 701 S.W.2d
238, 241-242 (Tex. 1985).

3. Application

018 The facts are not in dispute in this appeal; the
legal Conclusion drawn from those facts is. Jose urges a
different result based on his reading of a Mexican
child-custody statute which he says requires six months’
residence in a place to establish habitual residence.
Because the child was only 50 days old when he came to San
Antonio, Jose argues, he could not have established habitual
residence in Mexico. We find his argument flawed for several

019 First, federal courts do not rely on the source law
of the country from which the child was allegedly abducted
or retained in determining habitual residence; this inquiry
is undertaken to determine if the petitioning parent had
custody rights which the responding parent interfered with
by reason of the wrongful removal or retention. Feder v.
Evans-Feder, 63 F.3d at 225; Friedrich, 983 F.2d at 1401;
Meredith, 759 F.Supp. at 1434.

020 Even if the law of the country is relevant in
establishing habitual residence, moreover, Jose did not
contest at trial the affidavit of Cardenas’ choice of law
expert. Ricardo Camara Sanchez, an attorney licensed in
Mexico who works for the Mexican Central Authority for Child
Abduction, testified by affidavit that the statute cited by
Jose refers to the habitual residence of the parents
involved in a custody dispute, not the habitual residence of
the child. There was no evidence before the trial court that
the laws of Mexico required six months’ residence by the
child before a child’s habitual residence may be

021 Finally, and perhaps most importantly, Jose’s reading
of ICARA is not logical or fair. Under his reading, Mexican
children under six months of age, or who had recently moved,
would be unprotected by the Hague Convention and ICARA.
Courts should not interpret statutes to create an absurd
result. Barshop v. Medina Underground Water Conservation
Dist., 925 S.W.2d 618, 629 (Tex. 1996).

022 It is undisputed that Ruben lived with his mother for
the first 50 days of his life. We find this was sufficient
to establish habitual residence in Toluca within the meaning
of the Hague Convention. Whatever his original intentions
may have been, it is, of course, commendable that Jose feels
a compelling interest for his son. His energies must now be
directed toward negotiating with the mother he chose for the
child or with the court where the custody issues will be

023 We therefore find that the trial court did not abuse
its discretion in determining that the child’s habitual
residence was Toluca, Mexico for purposes of this
proceeding. Finding no error, Jose’s sole issue is
overruled, and the judgment of the trial court is in all
things affirmed.

Tom Rickhoff, Justice