Buscador de jurisprudencia

The mother and father met in 2014 when he was 38 and she was 22 years old. They began living together two months later and shortly after the mother became pregnant. In 2016 they married and shortly after had a second child. 

The parents divorced in 2018 and in 2019 they entered into a custody agreement, which the mother testifies she agreed to under duress. 

The mother had evidence of violent abuse and had received death threats as a result of the father’s criminal dealings. Two weeks after the threat the mother left Spain with the children. At this time the father was in prison due to his involvement in a drug trafficking operation.

In the USA the children lived with their mother, stepfather and younger siblings. They were doing well in school and were happy with their home in Florida. 

The father, together with his mother, made an application for the return of the children under the 1980 Hague Convention.

The mother said she feared for her life if they were to return to Spain.

Return refused. The children were at grave risk of harm if they returned to Spain and were settled in the USA. 

Rights of Custody - Art. 3

The fact that the father was in prison did not mean he no longer had rights of custody. It may be that his rights were suspended and he did not have de facto rights of custody, but he enjoyed de jure custody rights.

Grave Risk - Art. 13(1)(b)

There was a grave risk of harm to the children should they be returned to Spain not only from the father but also due to the anonymous threats received as a result of his criminal activity.

The Court was clear that it was not the father’s multiple criminal convictions that posed a risk, rather his association with people who threaten violence against him or his children.

Settlement of the Child - Art. 12(2)

The children were well settled in their new environment where they had lived for over a year in a strong a stable family unit. They had abundant and significant ties to the USA, including enjoying speaking English, attending the same school since they arrived and receiving excellent marks. They also have a good routine with extracurricular activities and a close relationship with their stepfather, wishing to change their surname to his.