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Nom de l'affaire

Palencia v. Perez, 921 F.3d 1333

Référence INCADAT

HC/E/US 1569



États-Unis d'Amérique


Deuxième Instance

États concernés

État requérant


État requis

États-Unis d'Amérique



30 April 2019




Droit de garde - art. 3 | Déplacement et non-retour - art. 3 et 12


Recours rejeté, retour ordonné

Article(s) de la Convention visé(s)


Article(s) de la Convention visé(s) par le dispositif


Autres dispositions


Jurisprudence | Affaires invoquées


Publiée dans



Résumé disponible en EN


The mother and father were not married but had been a couple for around 10 years and participated in a commitment ceremony in Guatemala in 2012.

They had a child in 2013, born in Guatemala, and lived together as a family until the mother left with the child in October of 2016.

The mother said she was taking the child to Mexico, to visit relatives for a week. Rather than visiting Mexico, she went to the United States with the child, where they were detained at the border. The father only learned of their whereabouts 12 days later, when the mother called him from a detention facility in the United States. She asked for his forgiveness and said she would return to Guatemala with the child. The father helped them to obtain passports but, once the mother received them she said she would no longer return to Guatemala.

Unbeknownst to the father, the mother had filed an asylum application for herself and the child upon arriving in the United States.

In February 2018 the father made an application under the 1980 Convention for the return of the child to Guatemala.

The district court concluded that the mother had wrongfully retained her son in the United States and ordered that the child be returned to Guatemala.

The mother appealed the decision.


Appeal dismissed, return ordered despite a pending asylum application.


Rights of Custody - Art. 3

The term "rights of custody" does not have a fixed definition, but it is not limited to physical custody. The 1980 Convention takes an expansive view of the concept.

Proceedings under the 1980 Convention are merely jurisdictional and a custody determination is outside their purview. That would be a question for the court in the state of habitual residence.

Removal and Retention - Arts 3 and 12

If the left-behind parent initially assented to the child's removal from the country of habitual residence, the date consent was revoked constituted the date of wrongful retention.