United States Court of Appeals

for the Fifth Circuit

No. 22-50203

Abigail Gramillo Galaviz, 

Plaintiff—Appellant, 

versus

Luis Enrique Reyes, 

Defendant—Appellee. 

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:21-CV-286

Before Richman, Chief Judge, and Ho and Engelhardt, Circuit

Judges.

Priscilla Richman, Chief Judge:

Galaviz and Reyes had two children in Mexico together, Andrew and 

Grace. After Galaviz and Reyes separated, the children remained in Mexico

with Galaviz. In July 2021, Reyes took the children to El Paso and refused to 

return them. Galaviz filed an action in the district court requesting the return 

of the children to Mexico under the Hague Convention. Reyes raised two 

affirmative defenses claiming that returning the children would violate their 

fundamental right to an education and would expose them to a grave risk of 

harm or an intolerable situation. The district court concluded that Reyes had 

United States Court of Appeals

Fifth Circuit

FILED

October 11, 2023

Lyle W. Cayce

Clerk

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satisfied his burden and denied Galaviz’s request for return of the children. 

Galaviz appealed. We reverse and remand.

I

Andrew and Grace were four and five years old respectively at the 

time of the district court proceedings. After Galaviz and Reyes separated, 

the children remained in Juarez, Mexico under Galaviz’s care. Reyes moved 

out of the home and relocated to El Paso, Texas. Galaviz and Reyes have no 

formal custody or possession court orders in place governing each parent’s 

custodial rights.

In July 2021, Reyes took the children to El Paso for an appointment

with a physician and declined to return them. In August, Galaviz filed a 

petition for custody of the children with the Seventh Family Court for 

Hearings in the Judicial District of Bravos, Chihuahua, Mexico. Galaviz has 

yet to obtain service on Reyes. In October, Galaviz submitted an Application 

for Return of her Children to the United States Department of State, the 

Central Authority of the United States under the Hague Convention. The 

United States Department of State sent a letter via email to Reyes requesting 

that he voluntarily return the children. In November, Galaviz filed a Verified 

Petition for the Return of the Children under the Hague Convention and the 

International Child Abduction Remedies Act (ICARA) in the Western 

District of Texas, El Paso Division.

The district court held a trial and heard two days of testimony. Reyes 

conceded that Galaviz met her burden of establishing a prima facie case of 

wrongful removal by a preponderance of the evidence. The burden then 

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shifted to Reyes, who opposed the return, to establish an exception.1 Reyes 

raised the exceptions set forth in Articles 20 and 13(b) of the Convention. 

As to Reyes’s Article 20 defense, the district court concluded that 

“[Galaviz’s] inability to be present with the children, as required so that they 

can attend school, effectively denies the children the fundamental right to an 

education,” and “[t]he denial of an education to two special needs children 

in their most formative years utterly shocks the conscience of the court.” As 

to Reyes’s Article 13(b) defense, the court concluded that “[t]he incidents of 

abuse and neglect collectively and the strong suggestion of sexual abuse 

constitute a grave risk of physical and psychological harm and an intolerable 

situation should the children return to Juarez.” The court concluded that 

Reyes had established these exceptions by clear and convincing evidence2

and denied Galaviz’s request for the return of the children to Mexico. This 

appeal followed.

II

The Hague Convention “requires that a child wrongfully removed 

from her country of habitual residence be returned there upon petition” 

unless the removing parent can establish an affirmative defense to removal.3

 

“The Convention’s primary aims are to ‘restore the pre-abduction status 

quo and to deter parents from crossing borders in search of a more 

sympathetic court.’”4 “The Convention is based on the principle that the 

best interests of the child are well served when decisions regarding custody 

1 22 U.S.C. § 9003(e)(2).

2 See id. § 9003(e)(2)(A) (detailing that the exceptions set forth in Articles 13b and 

20 of the Convention must be established by clear and convincing evidence).

3 England v. England, 234 F.3d 268, 270 (5th Cir. 2000). 

4 Id. at 271 (quoting Friedrich v. Friedrich, 78 F.3d 1060, 1067 (6th Cir. 1996)). 

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rights are made in the country of habitual residence.”5 ICARA is the United 

States’ implementing legislation of the Hague Convention.6 Under ICARA, 

once a petitioner has established by a preponderance of the evidence that the 

child was wrongfully removed or retained, the burden shifts to the 

respondent to establish an affirmative defense.7

The affirmative defenses at issue here are set forth in Articles 20 and 

13(b) of the Convention. Article 20 requires a respondent to show that “the 

return of the child ‘would not be permitted by the fundamental principles of 

the requested State relating to the protection of human rights and 

fundamental freedoms.’”8 “Article 13(b) of the Hague Convention requires 

a respondent to show that ‘there is a grave risk that his or her return would 

expose the child to physical or psychological harm.’”9 These exceptions 

must be established by clear and convincing evidence.10 Clear and convincing 

evidence is “weight of proof which ‘produces in the mind of the trier of fact 

a firm belief or conviction as to the truth of the allegations sought to be 

established.’”11 It is “evidence so clear, direct and weighty and convincing 

as to enable the fact finder to come to a clear conviction, without hesitancy, 

5 Abbott v. Abbott, 560 U.S. 1, 20 (2010). 

6 22 U.S.C. § 9001(b)(1).

7 Id. § 9003(e). 

8 Friedrich, 78 F.3d at 1067 (quoting Hague Convention on the Civil Aspects of

International Child Abduction (Convention) art. 20, Oct. 25, 1980, T.I.A.S. No. 11670, S. 

Treaty Doc. No. 99-11). 

9 Sanchez v. R.G.L., 761 F.3d 495, 510 (5th Cir. 2014) (quoting Convention, art. 

13(b)). 

10 22 U.S.C. § 9003(e)(2)(A).

11 In re Medrano, 956 F.2d 101, 102 (5th Cir. 1992) (quoting Cruzan by Cruzan v. 

Dir., Mo. Dept. of Health, 497 U.S. 261, 285 n.11 (1990)).

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of the truth of the precise facts.”12 We have concluded that mere speculation 

does not meet the clear and convincing burden.

13 

The district court determined that Reyes established each exception 

by clear and convincing evidence. This court reviews a district court’s 

“findings of fact for clear error and its conclusions of law de novo.”14 Cases 

arising under the Hague Convention involve very fact-specific inquiries and 

our caselaw on these exceptions in particular is relatively sparse; therefore, 

we look to our sister circuits for guidance.

A

“The Article 20 defense allows repatriation to be denied when it 

‘would not be permitted by the fundamental principles of the requested State 

relating to the protection of human rights and fundamental freedoms.’”15 

Article 20 is to be “restrictively interpreted and applied.”16 It “is not to be 

used . . . as a vehicle for litigating custody on the merits or for passing 

judgment on the political system of the country from which the child was 

removed.”17 This exception should only be “invoked on the rare occasion 

12 Id. (quoting Cruzan, 497 U.S. at 285 n.11) (internal quotation marks omitted). 

13 Kinnear-Weed Corp. v. Humble Oil & Refining Co., 441 F.2d 631, 636 (5th Cir. 

1971).

14 Jauch v. Nautical Servs., Inc., 470 F.3d 207, 212 (5th Cir. 2006) (per curiam).

15 Souratgar v. Lee, 720 F.3d 96, 108 (2d Cir. 2013) (quoting Hague International 

Child Abduction Convention: Text and Legal Analysis (Convention Text and Legal 

Analysis), 51 Fed. Reg. 10494, 10510 (Mar. 26, 1986)). 

16 Convention Text and Legal Analysis, 51 Fed. Reg. at 10510.

17 Id. 

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that return of a child would utterly shock the conscience of the court or 

offend all notions of due process.”18

The district court found that while in Galaviz’s care, the children did 

not attend preschool or kindergarten due to the school’s requirement that 

Galaviz attend school with them to help with their special needs. Because 

Galaviz was unable to comply with this requirement, the children did not 

attend school.

These findings do not establish an Article 20 defense. The district 

court focused on Galaviz’s actions or inactions regarding the children’s 

education, not on Mexican laws or policies that would prohibit return.19 The 

court even acknowledged that “the law in Mexico may provide for special 

education.” By focusing on Galaviz’s actions or inactions, the court 

essentially made an impermissible custody determination. Reyes did not 

present clear and convincing evidence demonstrating that the return of the 

children would utterly shock the conscience of the court or offend all notions 

of due process.

B

“Under Article 13(b), a court in its discretion need not order a child 

returned if there is a grave risk that return would expose the child to physical 

harm or otherwise place the child in an intolerable situation.”20 “This 

18 Id.

19 See Gallegos v. Garcia Soto, 2020 WL 2086554, at *8 (W.D. Tex. April 30, 2020) 

(stating that the respondent argued that returning the child to Mexico would not be 

permitted by the fundamental principles of the requested State, but that “[s]he did not 

present any evidence of Mexican law or official policy to this effect”); Aldinger v. Segler, 

263 F. Supp. 2d 284, 290 (D.P.R. 2003) (“[Article 20] is directed to concerns about harms 

arising from the child’s return to a particular country.”).

20 Convention Text and Legal Analysis, 51 Fed. Reg. at 10510.

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provision was not intended to be used by defendants as a vehicle to litigate 

(or relitigate) the child’s best interests.”21 “The person opposing the child’s 

return must show that the risk to the child is grave, not merely serious.”22 

“The grave risk involves not only the magnitude of the potential harm but 

also the probability that the harm will materialize.”23 “An example of an 

‘intolerable situation’ is one in which a custodial parent sexually abuses the 

child.”24

The district court concluded that Reyes presented evidence 

demonstrating a history of neglect and abuse by Galaviz for ten reasons: 

While in Galaviz’s care: “(1) the children’s physical and cognitive abilities 

declined;” “(2) the children did not attend school although they suffered 

severe special needs;” “(3) [Grace] received no treatment for her special 

needs;” “(4) the children remained completely non-verbal;” “(5) the 

children’s healthcare needs were being neglected as the children were 

missing vaccines, and had unaddressed auditory, visual, and dental issues;”

“(6) the children’s hygiene was being neglected;” (7) “the children’s ability 

to use the toilet had regressed and the children reverted to using diapers;”

(8) “the children had been physically abused;” (9) “there was a strong 

suggestion the children experienced sexual abuse;” and (10) “Petitioner 

presented no evidence of a suitable means of childcare while she is at work.”

21 Convention Text and Legal Analysis, 51 Fed. Reg. 10494, 10510 (Mar. 26, 1986).

22 Id. 

23 Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir. 2013) (citing Van De Sande v. Van De 

Sande, 431 F.3d 567, 570 (7th Cir. 2005)). 

24 Convention Text and Legal Analysis, 51 Fed. Reg. at 10510.

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1

The findings pertaining to neglect (findings (1), (2), (3), (4), (5), (6), 

(7), and (10)) do not satisfy the clear and convincing evidence burden.

If there are “equally plausible explanations” for the outcome, a party 

did not sustain its burden of proving clear and convincing evidence.

25 In GilLeyva v. Leslie,26 the respondent-mother raised an Article 13(b) defense 

because of the father’s “negligence in caring for the children and allowing 

unsafe living conditions in the home.”27 The Tenth Circuit, in an 

unpublished decision, stated that “[i]f the children suffered no harm from 

[the father’s] alleged negligence when they were younger and more 

vulnerable, we struggle to see how they face a grave risk of harm now.”28 

“And while past harm is not required to establish a grave risk of future harm, 

it is probative of whether the children will suffer upon returning to the same 

circumstances.”29 In other words, the mother was unable to rely on 

speculation that unsafe living conditions necessarily meant the children 

would face a grave risk of harm.

25N.L.R.B. v. Koenig Iron Works, Inc., 681 F.2d 130, 143 n.20 (2d Cir. 1982) 

(concluding that a party did not sustain its burden of showing clear and convincing evidence 

because of “the existence of equally plausible explanations” for the outcome); see also 

Kinnear-Weed Corp. v. Humble Oil & Refining Co., 441 F.2d 631, 636 (5th Cir. 1971); Cuellar 

v. Joyce, 596 F.3d 505, 509 (9th Cir. 2010) (concluding that testimony stating that the child 

was “kind of small and thin” and that “perhaps” the child was malnourished “plainly does 

not amount to clear and convincing evidence of a grave risk of harm”).

26 780 F. App’x 580 (10th Cir. 2019) (unpublished). 

27 Id. at 591.

28 Id. at 592.

29 Id. (citing Baran v. Beaty, 526 F.3d 1340, 1346 (11th Cir. 2008)).

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InCharalambous v. Charalambous,30 the court concluded that “[t]o the 

extent that [the child] has exhibited some behaviors and reactions . . . that 

may be consistent with sexual abuse, those behaviors may also be explained 

by some other event, such as the stress of being brought to the United States 

and being separated from his Father with whom he has an undeniably close 

relationship.”31

In Cuellar v. Joyce,32 the district court relied on the respondentfather’s testimony that the child “was sometimes cared for by a sick relative, 

had frequent ear infections and had unexplained burns behind her 

earlobes.”33 Based on this evidence, the court concluded that the mother was 

so neglectful that returning the child to her care would be “unsafe.”34 The 

Ninth Circuit disagreed, stating, “[b]y drawing this conclusion about [the 

mother’s] fitness as a parent, the district court overstepped its mandate and 

impermissibly addressed the ultimate question of custody.”35 Even if the 

district court believed the respondent-father’s testimony “verbatim,” the 

Ninth Circuit concluded the showing fell “far short of clear and convincing 

evidence.”36 In the present case, the district court’s findings regarding the 

children’s healthcare, including the children’s cognitive decline, the fact that 

they remained non-verbal, or their regression to using diapers may be 

30 2010 WL 4115495 (D. Me. 2010), aff’d, 627 F.3d 462 (1st Cir. 2010).

31 Id. at *10.

32 596 F.3d 505 (9th Cir. 2010).

33 Id. at 510.

34 Id.

35 Id.

36 Id. 

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supported by evidence that would be sufficient in a custody dispute. 37 

However, this evidence falls short of meeting Reyes’s clear and convincing 

burden.

Finally, Reyes presented no evidence that unsuitable childcare would 

expose the children to a grave risk of harm. He merely expressed concern 

that Galaviz often left the children with her older daughters and they did not 

take care of the children. This is not clear and convincing evidence of a grave 

risk of harm.

2

Next, the evidence related to physical abuse does not establish a grave 

risk of harm under a clear and convincing burden.

The Second Circuit has stated that “[s]poradic or isolated incidents 

of physical discipline directed at the child, or some limited incidents aimed 

at persons other than the child, even if witnessed by the child, have not been 

found to constitute a grave risk” under a clear and convincing burden.

38 

Cases concluding that the grave risk exception has been met often involve 

physical abuse that is repetitive and severe.39 In Simcox v. Simcox,40 the Sixth 

Circuit concluded that the grave risk exception was met because “[t]he 

37 See Guerrero v. Oliveros, 119 F. Supp. 3d 894, 913-14 (N.D. Ill. 2015) (concluding 

that evidence that the child “was frequently left unsupervised in the street, had lice, and 

was often dirty” fell “short of proving that the Children will face a serious, let alone grave, 

risk of harm if returned,” rather, this evidence went to the issue of custody).

38 Souratgar v. Lee, 720 F.3d 96, 104 (2d Cir. 2013).

39 See, e.g., Simcox v. Simcox, 511 F.3d 594, 608 (6th Cir. 2007); Blondin v. Dubois, 

189 F.3d 240, 243 (2d Cir. 1999) (concluding that the grave risk exception had been met 

because there was evidence that, among other things, the father had beaten the children, 

including twisting a piece of electrical cord around one of their necks).

40 511 F.3d 594 (6th Cir. 2007).

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nature of abuse . . . was both physical (repeated beatings, hair pulling, ear 

pulling, and belt-whipping) and psychological . . . .”41 The court stated that 

“[i]mportantly, these were not isolated or sporadic incidents.”42 The court 

concluded that based on “the serious nature of the abuse, the extreme 

frequency with which it occurred, and the reasonable likelihood that it will 

occur again absent sufficient protection . . . [petitioner] has met her burden 

of establishing, by clear and convincing evidence, a grave risk of harm in this 

case.”43

Contrast cases in which the exception has not been met. In 

Altamiranda Vale v. Avila,44 the Seventh Circuit concluded that the

“contested assertion that [the father] once struck his son with a video-game 

cord, fell short of meeting th[e] demanding burden.”45 Similarly, in Saldivar 

v. Rodela,46 the mother testified that she struck the child with a stick on three 

occasions and on one other occasion struck him with a belt.47 The father also 

testified that the child “freezes” presumably because of the psychological 

harm done to him by his mother.48 The court concluded that evidence failed 

to meeting the “demanding burden” for establishing the grave risk 

exception.49

41 Id. at 608.

42 Id. 

43 Id. at 609.

44 538 F.3d 581 (7th Cir. 2008). 

45 Id. at 587.

46 879 F. Supp. 2d 610 (W.D. Tex. 2012). 

47 Id. at 630.

48 Id. 

49 Id.

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The district court found that the children had been physically abused 

based on the children’s behavior and on the testimony of Galaviz’s former 

friend. The court found that the children cowered and protected their heads 

when bathing, that Andrew reacted to protect Grace when she spilled her 

beverage, and that he covered her mouth to quiet her when she cried. Reyes 

testified that he never saw Galaviz hit the children, but that he observed her 

yell at them. Reyes stated that he would attempt to conduct video 

conferences between Galaviz and the children, but that they would become 

very upset and cry and throw the phone at him.

There are other plausible explanations for the children’s behavior.50 

Reyes’s sister acknowledged that it was possible the children did not want to 

be bathed by someone they didn’t know. The children could have behaved 

fearfully because of prior actions by Reyes—Galaviz testified that Reyes had 

punched her, tried to strangle her, caused swelling, bruises, black eyes, a 

busted lip, and a broken nose.

Galaviz’s former friend testified that she witnessed Galaviz physically 

abuse the children. She stated that Galaviz hit Andrew with a foam slipper 

to reprimand him for climbing a kitchenette. She saw Galaviz slap her adult 

daughter when she confronted her about spanking Andrew. She also testified 

that Galaviz would hit the children because they would cry. This is not the 

kind of repetitive and severe abuse seen in cases like Simcox. This case is 

more similar to Altamiranda Vale.

50 See Charalambous v. Charalambous, 2010 WL 4115495, at *10 (D. Me. 2010), 

aff’d, 627 F.3d 462 (1st Cir. 2010) (“To the extent that [the child] has exhibited some 

behaviors and reactions . . . that may be consistent with sexual abuse, those behaviors may 

also be explained by some other event, such as the stress of being brought to the United 

States and being separated from his Father with whom he has an undeniably close 

relationship.”).

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The evidence, therefore, does not satisfy an Article 13(b) defense. 

Neither the evidence of the children’s behavior nor the former friend’s 

testimony about the alleged abuse meet the clear and convincing burden.

3

Lastly, there is no clear and convincing evidence establishing sexual 

abuse. The district court determined that there was a “strong suggestion of 

sexual abuse” which constituted a grave risk of harm or an intolerable 

situation. This “strong suggestion” was based on the findings that Reyes 

received anonymous text messages stating that Grace and Andrew had been 

sexually abused with Galaviz’s knowledge, a police report filed by Reyes, a 

physical examination in which a physician expressed his or her belief that 

Andrew “could have been sexually abused,” and a police report filed by the 

physician.

This evidence does not meet the clear and convincing evidence 

burden. In Danaipour v. McLarey,51 the First Circuit determined that there 

was a clear and substantial claim of abuse because of evidence including, 

vaginal redness on one child after her return from visits with her father, the 

child’s statements to a psychologist that her father had caused the redness, 

statements by the child that her father had hurt her “pee pee,” and that she 

had exhibited symptoms of abuse.52 Similarly, in Ortiz v. Martinez,53 the 

mother had described how she had seen the father molesting the child in the 

shower, how she had overheard the child tell her father not to touch her 

anymore, and that the child had exhibited behavior consistent with having 

51 286 F.3d 1 (1st Cir. 2002). 

52 Id. at 5-7.

53 789 F.3d 722 (7th Cir. 2015).

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suffered sexual abuse.54 This evidence was sufficient to establish the grave 

risk exception.55

By contrast, in Kufner v. Kufner,56 the First Circuit concluded that the 

respondent did not establish the grave risk exception despite evidence that 

the father took four graphic photographs of his children and the children 

began exhibiting physical symptoms such as bed-wetting, nervous eye 

twitching, sleeplessness, and nighttime crying and screaming after a vacation 

with the father.57

In the present case, the physician stated that the Andrew could have 

been sexually abused. The Texas Department of Family and Protection 

Services initiated an investigation but closed it with no findings. The El Paso 

Police Department also closed its investigation. The district court

acknowledged that the text messages could “be from just about anyone with 

bad intentions.” This court has previously concluded that information from 

an unknown source is not sufficient to establish a grave risk of harm.58 The 

district court erred in concluding that Reyes established an Article 13(b) 

defense. 

While we are sympathetic to the sensitive issues presented, “[a] court 

that receives a petition under the Hague Convention may not resolve the 

54 Id. 724-25.

55 Id. at 730.

56 519 F.3d 33 (1st Cir. 2008). 

57 Id. at 36, 41.

58 See Madrigal v. Teller, 848 F.3d 669, 676 (5th Cir. 2017) (“[A] single, vague email 

from an unknown source is not clear and convincing evidence of a grave risk of harm to the 

Children in Mexico.”). 

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question of who, as between the parents, is best suited to have custody of the 

child.”59 We leave the question of custody to the Mexican courts.60

* * *

The district court erred in concluding that Reyes established Article 

20 and 13(b) defenses by clear and convincing evidence. The judgment of 

the district court is REVERSED, and the case is REMANDED with 

instructions that the court enter an order that the children be returned to 

Mexico.

59 Cuellar v. Joyce, 596 F.3d 505, 508 (9th Cir. 2010).

60 Id. (“[T]he court must return the abducted child to its country of habitual 

residence so that the courts of that country can determine custody.”) (emphasis original).

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James C. Ho, Circuit Judge, concurring in the judgment:

I understand and respect how the district court approached these 

difficult and troubling issues. I nevertheless agree that the governing 

precedents require that these issues be resolved in a custody hearing. 

Accordingly, I concur in the judgment.

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