IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-20660

JOSE PRIMITIVO JAIMES SIERRA, 

 Plaintiff - Appellee 

v. 

NASLY XIMENA RIASCOS TAPASCO, 

 Defendant - Appellant 

Appeal from the United States District Court

for the Southern District of Texas 

USDC No. 4:15-CV-640

Before DAVIS, JONES, and CLEMENT, Circuit Judges. 

PER CURIAM:*

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 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 16, 2017

Lyle W. Cayce

Clerk

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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. 

I.

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,1 which creates a 

remedy for the return of a child under the age of 16 to his or her country of

habitual residence upon a showing that the child was wrongfully removed.2

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.3 Jaimes was given the option to 

either leave the United States voluntarily with the possibility of returning 

legally in the future, or be deported. Jaimes chose to leave voluntarily and 

return to Mexico. Riascos executed a notarized travel authorization letter to 

allow K.J.R. to travel with Jaimes to Mexico. Jaimes and K.J.R. left North 

Carolina for Mexico in October 2012. Riascos remained in the United States. 

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 

 

1 22 U.S.C. §§ 9001-9011, formerly cited at 42 U.S.C. §§ 11601-11610. 2 See Convention, arts. 1-5. 

3 The parties dispute Jaimes’s actual guilt–Jaimes claims that Riascos hit herself with 

a notebook while Riascos claims that she was a victim of Jaimes’s physical abuse. Regardless, 

Jaimes said he pleaded guilty to the charge so that they could maintain custody over K.J.R. 

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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, 

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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.4 

II.

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.5 

To prevail in a petition for return of child, Jaimes must prove by a 

preponderance of the evidence: 

(1) that [Riascos] removed or retained the child somewhere other 

than the child’s habitual residence; (2) that the removal or 

retention violated [Jaimes’s] rights of custody under the habitualresidence nation’s laws; and (3) that at the time of removal or 

retention, [Jaimes] was exercising those rights or would have 

exercised those rights but for the removal or retention.6

 

4 Jose Jaimes Sierra v. Nasly Riascos Tapasco, No. 4:15-CV-00640, 2016 WL 5402933, 

at *5-8, 11 (S.D. Tex. Sept. 28, 2016).

5 Riascos also complains that the district court erred in denying her motion to dismiss 

on forum non conveniens grounds. We have reviewed the district court’s ruling on this motion 

and are satisfied that the district court did not abuse its discretion.

6 Delgado v. Osuna, 837 F.3d 571, 577 (5th Cir. 2016) (citing Larbie v. Larbie, 690 F.3d 

295, 307 (5th Cir. 2012)); see also 22 U.S.C. § 9003(e)(1) (setting out the preponderance of the 

evidence standard). 

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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.”7 

To determine a child’s “habitual residence,” the court “begins with the 

parents’ shared intent or settled purpose regarding their child’s residence.”8 

And “the threshold test is whether both parents intended for the child to 

abandon the [habitual residence] left behind.”9 “The mere fact that the parents 

have consented for the child to move to a new country does not prove that they 

share the necessary intent to make that new location the child’s habitual 

residence.”10 “Absent shared intent, prior habitual residence should be deemed 

supplanted only where the objective facts point unequivocally to this 

conclusion.”11 The district court held that Jaimes and Riascos shared the 

intent to supplant K.J.R.’s habitual residence to Mexico. “This court reviews a 

district court’s shared intent determination for clear error.”12 

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. 

 

7 Berezowsky v. Ojeda, 765 F.3d 456, 465 (5th Cir. 2014). 8 Larbie, 690 F.3d at 310. 

9 Berezowsky, 765 F.3d at 466 (alteration in original) (quoting Larbie, 690 F.3d at 310-

11).

10 Id. at 467.

11 Id. at 466 (quoting Larbie, 690 F.3d at 311). 

12 Delgado, 837 F.3d at 578; see also Berezowsky, 765 F.3d at 466 & n.7 (“We affirm 

the district court’s determination that the parents shared an intent to make a particular 

country their child’s habitual residence unless it is implausible in light of the record as a 

whole. . . . [W]e join our sister circuits in treating the shared intent determination as a factual 

finding that is reviewed for clear error.”). 

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