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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.
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