United States District Court, W.D. Virginia, Danville Division
JACKSON L. KISER, SENIOR UNITED STATES DISTRICT JUDGE
23, 2016, Petitioner Xochitl Jazmin Velasco Padilla
(“Petitioner”) filed a Petition for Return of
Child (“the Petition”) [ECF No. 1], pursuant to
the Hague Convention on the Civil Aspects of International
Child Abduction (“the Convention”) and the
International Child Abduction Remedies Act. In her Petition,
she claimed that her son, J.V., was brought into this country
without her consent and in contravention of her custody
rights by the child’s legal father, Respondent Joe
Richard Troxell (“Respondent”). I held a bench
trial on the Petition on July 25, 2016. For the reasons
stated herein, I will deny the Petition.
address ‘the problem of international child abductions
during domestic disputes, ’ in 1980 the Hague
Conference on Private International Law adopted the
[Convention].” Lozano v. Montoya Alvarez, 134
S.Ct. 1224, 1228 (2014) (quoting Abbott v. Abbott,
560 U.S. 1, 8 (2010)). “The United States ratified the
Hague Convention in 1988, and Congress implemented the
Convention that same year through the International Child
Abduction Remedies Act (ICARA).” Id. at 1229
(citing 102 Stat. 437, codified at 22 U.S.C.
§§ 9001-9011). By its terms, the Convention
addresses the signing countries’ desire “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 secure protection for
the rights of access . . . .” Hague Convention §
I, 19 I.L.M. 1501, 1501 (1980).
primary aim of the Convention is to deter parents from taking
children across international borders in search of a more
sympathetic court to resolve custody disputes. To that end,
the Convention’s central operating feature is the
‘return remedy’: when a child under the age of 16
has been wrongfully removed from his . . . country of
habitual residence, the country to which the child has been
brought generally must order the prompt return of the
child.” Alcala v. Hernandez, Case No. 15-2471,
2016 WL 3343251, at *4 (4th Cir. June 15, 2016) (citing
Miller v. Miller, 240 F.3d 392, 398 (4th Cir.
2001)). This order, however, does not affect the respective
custody rights of the parents; “the Convention
generally leaves ultimate custodial decisions to the courts
of the country of habitual residence.” Id.
order to state her claim for return of the child, Petitioner
must show, by a preponderance of the evidence, that J.V. was
wrongfully removed (or retained) from his habitual residence
in violation of her custody rights. See Miller, 240
F.3d at 398 (citing Hague Convention, art. 3, 19 I.L.M. at
1501). Based on the evidence, I believe Petitioner has made
this showing. Respondent has established, however, that
Petitioner consented to J.V. being brought into this country.
Because consent of the petitioning parent is a defense to the
Petition, see Hague Convention art. 13a, 19 I.L.M.
at 1502,  and because Respondent has adequately
shown that Petitioner consented to J.V.’s removal from
Mexico,  I will not order J.V. returned to his home
evidence established that, although Respondent is not
J.V.’s biological father, he is listed on J.V.’s
birth certificate as his father and was so listed with the
full consent of both Petitioner and Respondent. Under Mexican
law, as stipulated by the parties, Respondent enjoyed the
same parental rights as Petitioner. (See Joint
Pretrial Stipulation ¶ 4, July 25, 2016 [ECF No. 48].)
first met J.V. in January 2012 when J.V. was approximately
eight months old. At that time, Respondent was added as
J.V.’s father on J.V.’s birth certificate. Over
the next two years, Respondent had no contact with J.V.
Around January 2014, Petitioner contacted Respondent and
stated that J.V. wanted to meet him. Respondent picked up
Petitioner and J.V. at the bus station, and they stayed with
Respondent and his fiancée for several days at
Respondent’s home in Acapulco.
December of 2014, Petitioner and Respondent discussed
Petitioner’s desire to live in the United States and
whether J.V. would be better off with Respondent. According
to Respondent, Petitioner said her other two
were born in the United States, so they were U.S. citizens,
but that she would have a problem moving with J.V. Respondent
agreed to help Petitioner get papers for J.V. and bring him
to the United States.
J.V.’s passport was secured in December 2014, J.V.
returned with Respondent to his home in Acapulco. A few
months later, Respondent acquired a “fiancée
visa” for Blanca Leyva, which permitted Leyva to
enter the United States for ninety days to marry Respondent.
According to Respondent, it would have taken too long to get
a visa for J.V., so he paid a smuggler to take the
three-year-old J.V. across the U.S./Mexican
border. Predictably, J.V. was picked up during a
raid by Border Patrol near El Paso, Texas. After a review of
his documents, J.V. was released into Respondent’s
custody, and Respondent, J.V., and Leyva settled in Halifax
offered a vastly different story. She agrees that she wanted
Respondent on J.V.’s birth certificate, and she agrees
that she went with Respondent to acquire a passport for J.V.
in December 2014; she contends, however, that Respondent took
J.V. without her knowledge or consent. According to her,
their group was at the park the day after acquiring
J.V.’s passport. She maintains that she went to get ice
cream, and when she returned, Respondent and his
fiancée had disappeared with J.V. She subsequently
swore out a warrant against Respondent for abducting J.V.
cannot find Petitioner’s version of events to be
true. First, she has offered no explanation
why she would have consented to acquiring a passport for her
three-year-old son unless there were plans for him to travel
to the United States. Considering her lack of legal status in
the United States, the only plausible reason for acquiring a
passport for J.V. would have been Petitioner’s
awareness of, and consent to, Respondent’s plans to
bring J.V. to the United States.
the evidence adduced at trial indicated that Petitioner had
no objection to J.V. residing with Respondent in the United
States. In various text messages to Respondent and Blanca
Leyva, Petitioner stated: “Blanca come to Oaxaca and
bring my son I swear I won’t do anything against you
guys . . . I just want to see him I am not going to fight for
him” (Def.’s Trial Ex. 7, at pg. 027); and
“Joe please this is urgent you don’t understand
my son is very sick I swear to you I will do everything for
[J.V.] to be with you but I really need the money answer me
now please” (Def.’s Trial Ex. 8, at pg. 003).
When Respondent asked Petitioner “what . . . is better
for the life of [J.V.], ” Petitioner responded,
“I said you.” (Id. at pg. 007.) When
Respondent asked, “[W]hat [do] you think is best for
[J.V.]’s life where the best place for [J.V.] to live
is, ” Petitioner responded, “I think with you . .
. .” (Def.’s Trial Ex. 7, at pg. 141.)
Petitioner’s testimony raised serious doubts about her
credibility. While some of the discrepancies could
conceivably be chalked up to the language barrier or societal
differences,  there can be no dispute that
Petitioner’s testimony regarding her other children was
plainly false. She testified that J.V., born May 27, 2011,
was her first child. On cross examination, she was forced to
admit that she gave birth to a child on August 29, 2008, when
she was seventeen. (See Def.’s Trial Ex. 18.)
The ease with which she mislead the court on this issue calls
into question all of her factual testimony. Thus, I am left
with only one credible version of events: Respondent’s.
ICARA does not vest with this Court the power to determine
what is best for J.V.; instead, I am only asked to determine
whether Respondent abducted J.V. from Mexico, or whether
Petitioner consented to his removal. The evidence established
that Petitioner consented to his removal and had no
objections to J.V. remaining in Respondent’s care so
long as Respondent supported her financially. (See,
e.g., Def.’s Tr. Ex. ...