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Kids Born in Mexico Can Stay in New York, Federal Judge Rules
New York Law Journal
Two Mexican-born children taken by their mother to the United States as she fled from their allegedly abusive father can stay in this country, a federal judge has ruled in an international custody dispute.
Eastern District of New York Judge Sterling Johnson Jr. concluded in Broca v. Giron, 11-cv-5818, that there were good reasons for the children to remain in the United States, and he could not bring himself to split them up.
"The allegory of the Judgment of Solomon is one that comes to mind, and this Court thinks it wiser, and more congruent with the aim of this affirmative defense, to avoid 'cutting the baby in half,'" he said. "Therefore, the Court is disinclined to further fracture the family unit."
In reaching his decision, the judge applied the 30-year-old Hague Convention on the Civil Aspects of International Child Abduction, which is aimed at forcing the prompt return of wrongfully removed children to their country of "habitual" residence.
But there are several exceptions to such a return. Here, Johnson accepted two offered by the mother, allowing a 15-year-old girl, M.V., and her 10-year-old brother, J.V., to stay with their mother and older brother in Brooklyn. In doing so, he rejected a magistrate judge's recommendation that they be sent back to Mexico with their father.
First, Johnson agreed with the mother that the two were "well settled" in Brooklyn. He noted that M.V. had rapidly learned English and acquired friends. And while the evidence of J.V.'s adjustment was thinner, it was still "persuasive."
Moreover, Johnson held that M.V. was mature enough to make her own decision about where she wanted to live.
However, the judge rejected a claim that the two children were at "grave risk" of harm from their father. Whatever abuse he had meted out to their mother, Johnson said there was no evidence the father would physically or psychologically harm his children.
In July 2010, Mirna Mariana Gil Giron fled her husband, Jose Leonides Varillas Broca, with the couple's three children, who at the time were between the ages of 7 and 14.
The couple met in the town of Cardenas and married in April 1995. By the time their second child was born in December 1997, the marriage allegedly had begun falling apart. Varillas purportedly became physically and psychologically abusive -- a charge he denied in the ensuing court proceedings.
Gil arranged for a "coyote" to illegally smuggle her and the three children to the United States in July 2010. After a one-month stay with a sister in Texas, Gil and the children went to Brooklyn, where they stayed with Gil's other sister and the sister's three children in a one-bedroom apartment.
In late 2011, Varillas filed a Hague Convention petition in the Eastern District of New York seeking the return of his three children. However, the treaty only covers children under 16. The eldest child, J.H.V., had turned 17, so the bid for his return was dismissed.
In testimony before Magistrate Judge Joan Azrack, Varillas acknowledged one incident when the couple became physical with each other, but he otherwise denied abusing his wife or children. Gil, however, testified she had been abused for most of their marriage.
M.V. said she constantly saw her parents fighting and had been hit by Varillas too, though the most recent incident occurred at least seven years ago. M.V. said she was involved in her New York church, had a busy social life and excelled in school. The girl said she wanted to stay in the United States because she is "more comfortable" here, wants to attend school and become an attorney. She understood she could be deported.
The young boy, J.V., did not testify at the hearing, but evidence was presented he had friends, and regularly attended church and school, but had difficulty in school and learning English. During an interview in chambers, J.V. told Johnson he would be "kind of nervous" being ordered to return because he did not "know that much of Mexico."
In September 2012, Azrack recommended the children's return, saying Varillas had made out a prima facie case for repatriation while the mother could not establish that the children were "well settled" or faced a "grave risk."
Furthermore, the "mature child defense" to repatriation was inapplicable because M.V.'s objection to return, said Azrack, was rooted in a "generalized desire of an adolescent girl to live in New York City rather than a small town in Mexico."
Johnson agreed with Azrack that no grave risk had been shown. The record was "replete with evidence" of Varillas' abuse of Gil, but "there exists little to suggest that the same applies to the children." M.V.'s testimony of being hit three times, more than seven years ago and not needing medical attention, was not enough, he said.
Furthermore, all sides agreed J.V. had never been beaten by Varillas. Johnson also said there was "no evidence" the children had psychological wounds.
(The weight to be given to the harm to children from merely witnessing the abuse of their mother is an issue in a separate Hague Convention case now pending in the U.S. Court of Appeals for the Second Circuit. Oral argument was scheduled for March 13 in Souratgar v. Fair, 12-5088.)
Turning to the issue of whether the children were well settled, Johnson said he had to weigh factors including their age, the stability of their environment, schooling, community involvement and immigration status.
The "totality of factors" showed M.V. was well settled, he ruled. The case of J.V.'s settling was "admittedly weaker" because of his academic difficulties but "sufficiently persuasive."
Moreover, Johnson wrote, "To the extent that the well-settled exception [of the Hague Convention] is intended to account for the likelihood that an international relocation is disruptive to a child's development, it cannot be disputed that a significant disruption would occur if J.V. is separated from his siblings, his mother, and the only life he knows."
Turning to the question of whether M.V. was mature enough to make her own choice, Johnson observed the Hague Convention did not specify what age conferred maturity.
Here, he said M.V. showed "particularized, mature objections" to returning to Mexico. Her willingness to obey court-ordered repatriation and her understanding of the challenges she faced with her immigration status were signs of maturity, he said.
"While M.V. might not be particularly knowledgeable about the nitty-gritty of the immigration laws -- and few 15-year-olds are -- she is not ignorant of the fact that she is in the United States somewhat precariously and may be forced to leave before she has the opportunity to legitimize her presence. That she has balanced the risks and rewards of her status in this fashion displays a level of maturity that ought to be considered," he wrote.
Both sides were represented pro bono.
Carolyn Kubitschek of Lansner & Kubitschek, who represented Gil, said she and her client were thrilled.
"The family can get their life together now and move forward," the attorney said.
Varillas was represented by Jones Day, which pledged an appeal. Mark Seiden, a partner at the firm, said Varillas' legal team was "encouraged" that both Azrack and Johnson agreed Varillas "proved his prima facie case" and rejected the "grave risk" defense.
But, he noted, "we firmly believe that Judge Azrack's prior report and recommendation that the children should be returned to their long-time home in Mexico is the correct ruling and should be adopted."
Seiden added that the father is "desperate" to be reunited with his children.
Caroline Ivie Lents, Laura Sawyer and Lisa Yemm of Jones Day also appeared for Varillas.