The parties in the instant action disagree as to the time of removal. Lopez
claims that Respondent and the child left Mexico on or about April 27, 2002.
Respondent claims that she left Mexico with her son on November 20, 2001.
Respondent has presented ample credible evidence in the form of testimony and
submitted documents in support her position that she left Mexico in November of
2001. Lopez, on the other hand, has failed to come forth with any evidence,
whatsoever, to support his claims. We gave Lopez an opportunity to provide an
affidavit to support his position and he declined to submit any affidavit. Instead he
merely submitted selected portions of the evidentiary hearing transcript. In fact, at
the evidentiary hearing, counsel for Lopez stipulated that Respondent was already in
the United States and took the child to a clinic in Chicago, Illinois in December of
2001. (Trans. 37).

The next issue in this action is whether or not there is evidence that on
November 20, 2001, Lopez was exercising his rights of parental custody. First of
all, Lopez’s assertion in his briefs that he was exercising his parental rights until
April of 2002 are suspect because, as indicated above, there is no evidence that
would indicate that Respondent and the child were in Mexico at that time, or that
Lopez had contact with Respondent and the child. In addition, there was ample

testimony indicating that Lopez was not exercising his parental custody rights when


the return of a child or for arrangements for organizing or securing the
effective exercise of rights of access to a child may do so by commencing a
civil action by filing a petition for the relief sought in any court which has
jurisdiction of such action and which is authorized to exercise its jurisdiction
in the place where the child is located at the time the petition is filed... .

(e) Burdens of proof

(1) A petitioner in an action brought under subsection (b) of this section shall
establish by a preponderance of the evidence--

(A) in the case of an action for the return of a child, that the child has been
wrongfully removed or retained within the meaning of the Convention; and

(B) in the case of an action for arrangements for organizing or securing the
effective exercise of rights of access, that the petitioner has such rights.

(2) In the case of an action for the return of a child, a respondent who opposes
the return of the child has the burden of establishing--

(A) by clear and convincing evidence that one of the exceptions set forth in
article 13b or 20 of the Convention applies; and

(B) by a preponderance of the evidence that any other exception set forth in

article 12 or 13 of the Convention applies. ...
42 U.S.C. § 11603(b); (e). Respondent argues that an exception listed in article
13(a) of the Convention applies in this instance. Article 13(a) of the Convention
states that a court is not required “to order the child's return if the person opposing
the return establishes that ‘the person, institution or other body having the care of the
person of the child was not actually exercising the custody rights at the time of
removal or retention, or had consented to or subsequently acquiesced in the removal
or retention ....’” Furnes v. Reeves, 362 F.3d 702, 711-12 (11" Cir. 2004)(quoting

in part Convention, Art. 13(a).).


Respondent left Mexico with the child. Respondent’s brother testified at the
evidentiary hearing. He stated that Respondent came to the United States in
November of 2001.

Respondent also testified at the evidentiary hearing. She indicated that she
spoke to Lopez on October 12, 2001, and told Lopez that he was not meeting his
obligations as a husband or a father. (Trans. 34). Respondent testified that Lopez
was not at home at night because he went drinking with his friends. (Trans. 41).
Respondent indicated that after October 12, 2001, Lopez returned to her parents’
house, but only did so late at night. (Trans. 44). She testified repeatedly that on
such occasions, Lopez would yell at her from outside the home and threaten to kill
her and kidnap their child and told her that “(he knew every step [she] took.”
(Trans. 44, 51, 54). When asked if Lopez asked permission to come into the
residence and see his child, Respondent testified that she told Lopez to come back
during the daytime when the child was awake. (Trans. 45), Respondent testified
that on one occasion when Lopez visited the residence, he beat her. (Trans. 54).
Respondent testified that after October 12, 2001, she changed the locks on the doors
to her parents’ residence because she feared for her safety because of Lopez’s threats
and abuse. (Trans. 53),

It is clear from the record that after October 12, 2001, Lopez ceased to


Minute Order Form (06/97)

oe

United States District Court, Northern District of Iinois

Name of Assigned Judge - i Sitting Judge Sf Other
or Magistrate Judge Samuel Der-Yeghiayan than Assigned Judge
CASE NUMBER 03 C 2760 DATE 6/30/2004
CASE Victor Lopez vs. Yessica Santillan
TITLE
{in the following box (a) indicate the party filing the motion, e.g, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
ql) a Filed motion of [ use listing in “Motion” box above.]
(2) a Brief in support of motion due
(3) Oo Answer brief to motion due, . Reply to answer brief due
(4) Oo Ruling/Hearing on set for at
(5) a Status hearing[held/continued to] [set for/re-set for] on set for at
(6) a Pretrial conference[held/continued to] (set for/re-set for] on set for at :
(7) oa Trial{set for/re-set for] on at
(8) a {Bench/Jury trial] [Hearing] held/continued to at
(9) ao This case is dismissed (with/without] prejudice and without costs[by/agreement/pursuant to]
QUFRCP4(m) COlLocal Rule 41.1 OFRCP41(a)(1) OO FRCP41(a)(2).
ao [Other docket entry] For the reasons stated in the attached memorandum opinion, the petitioner’s
verified petition for return of an abducted child is denied. All pending dates and motions are hereby
stricken as moot. Terminating case. Enter Memorandum Opinion.
qay a [For further detail see order (on reverse side of/attached to) the original minute order.]

No notices required, advised in open court,

No notices required.
number of notices

Notices mailed by judge's staff.

Notified counsel by telephone.

WY | Docketing to mail notices.

Mail AO 450 form,

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Copy to judge/magistrate judge.

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date mailed notice

courtroom
deputy’s
initials

MW

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exercise his parental custody rights. The evidence clearly indicates that even before
that date, Lopez was continually absent and was not offering financial support to his
family. After October 12, 2001, his attempts to interact with his family cannot in
any way be deemed as exercising his parental custody rights. There is
uncontroverted testimony that on his only visits to Respondent’s parents’ residence,
which were late at night, he threatened to kill Respondent, threatened to kidnap the
child, and on one occasion physically assaulted Respondent. Such conduct cannot

be considered an attempt to exercise parental custody rights in any way.

CONCLUSION
Based on the foregoing analysis, we deny Lopez’s “Verified Petition For

Return of an Abducted Child.”

Samuel Der-Yeghiayan 0 Qe
United States District Court Judge

Dated: June 30, 2004


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
VICTOR ZETINA LOPEZ, )
)
Petitioner, )
)
v. ) No. 03 C2760

)
YESSICA GARDUNO SANTILLAN, __)
)
Respondent. )

MEMORANDUM OPINION Digg Fn

Juy ie

SAMUEL DER-YEGHIAYAN, District Judge 2 2094

This matter is before the court on Petitioner Victor Zetina Lopez’s (“Lopez”)
“Verified Petition For Return of an Abducted Child.” For the reasons stated below,

we deny the petition.

BACKGROUND
Lopez claims that Respondent and himself resided at Respondent’s parents’
home in Mexico. Lopez had a child out of wedlock with Respondent. The child was
born in Mexico on April 4, 2000. Lopez contends that Respondent moved to the
United States without first informing Lopez of the planned move. Respondent has

since married and the child resides with Respondent and her husband in Wisconsin.


According to Lopez, he lived with Respondent at her parents’ residence
“between April 4, 2000, and April 27, 2002.” (P SF 10). Lopez also claims that
Respondent and the child left Mexico on or about April 27, 2002. (P SF 14). Lopez
contends that he “fully and actually exercised hispatria potestad rights over [the
child]” until approximately April 27, 2002. (P SF 13).

On the other hand, Respondent asserts that she left Mexico with her son on
November 20, 2001 and asserts that Lopez ceased to reside in her parents’ residence
in Mexico in October of 2001. (RP SF 33). Respondent also claims that Lopez
ceased to exercise any parental rights over the child in October of 2001. (R SF 33,
34).

On March 9, 2004, we conducted an evidentiary hearing. We also gave Lopez
until April 8, 2004, to submit any memoranda or evidentiary affidavits in support of
his position. Lopez declined to submit any evidentiary affidavits in support of his

position.

DISCUSSION
Lopez brought the instant petition alleging violations of the Hague
Convention (“Convention”), as implemented in the United States by the
International Child Abduction Remedies Act (““ICARA”), 42 U.S.C. § 11601et seg.

The ICARA provides in part as follows:

b) Petitions
Any person seeking to initiate judicial proceedings under the Convention for

2