Unreported / Non-Citable
Background
Sergio Sanchez Lozano and Maria Isabel Herrera Perez married in Durango, Mexico, and had two sons, including M.A.S., who was born in El Paso, Texas, giving him dual U.S.-Mexican citizenship. Following their formal divorce in November 2021, a Mexican court awarded Herrera Perez full custody of the boys, with Lozano permitted weekend visitation rights. In December 2022, Lozano signed a travel authorization allowing M.A.S. to travel to Texas for pleasure for one year.
In January 2023, Herrera Perez brought M.A.S. to the United States. Around August 2023, the couple’s older son informed Lozano that the family would not be returning to Mexico. Herrera Perez had remarried and settled in Fort Worth, Texas, where she and her new husband rented a home with M.A.S. By the time of litigation, M.A.S. had been in the United States for nearly two years, attended the same school (progressing to third grade with honor roll status), developed friendships, and had his own bedroom in a stable family home.
In December 2023, Lozano filed a petition under the Hague Convention on the Civil Aspects of International Child Abduction seeking M.A.S.’s return to Mexico. The district court held a two-day hearing in October 2024 and found that Herrera Perez had wrongfully retained M.A.S. in the United States, a conclusion Herrera Perez did not contest. However, the district court determined that two exceptions under the Convention precluded return to Mexico.
The Court’s Holding
The Fifth Circuit affirmed the district court’s denial of Lozano’s petition. The court acknowledged that the Hague Convention’s core purpose is to deter international child abductions by restoring the pre-abduction status quo and ensuring custody decisions occur in the child’s country of habitual residence. Nevertheless, the Convention provides narrow exceptions when return would not serve the child’s interests.
The Fifth Circuit affirmed the district court’s finding of a grave risk under Article 13(b) of the Hague Convention. The respondent (Herrera Perez) met her burden of proving by clear and convincing evidence that returning M.A.S. to Mexico would expose him to a grave risk of physical or psychological harm or place him in an intolerable situation. The district court found: Lozano has connections to drug cartels and traffickers in Durango; his brother disappeared twelve years ago due to cartel-related activities (specifically, an affair with a cartel member’s wife); Lozano has used cocaine regularly for eighteen years and admitted to use just eight days before the hearing; his nose cartilage was perforated from cocaine use; he is an alcoholic who abuses alcohol weekly; and he refused to commit to stopping drug acquisition or use or distancing himself from cartel connections if M.A.S. were returned. The Fifth Circuit found these facts sufficient to satisfy the grave risk standard, which focuses on both the magnitude and probability of harm—a threshold greater than the normal trauma of separation from a parent.
Because the grave risk exception applied, the court declined to address whether M.A.S. was also well-settled in the United States under Article 12’s one-year rule, though the record showed he had lived there nearly two years, progressed academically despite initial English language barriers, made friends, and had a stable family environment.
Key Takeaways
- The Hague Convention’s grave risk exception is narrowly construed and focuses on the risk posed by repatriation itself, not on general custody preferences or parental fitness.
- The respondent opposing return bears the burden of establishing the grave risk exception by clear and convincing evidence—a demanding standard.
- Documented connections to criminal organizations combined with serious untreated substance abuse can constitute a grave risk where the abducting parent refuses to commit to removing the child from that environment.
- Courts may consider family history (such as a sibling’s disappearance due to cartel violence) as evidence supporting grave risk findings in the absence of speculation.
Why It Matters
This decision illustrates the application of the Hague Convention’s grave risk exception in the context of organized crime and parental substance abuse. While the Convention strongly favors returning wrongfully retained children to their habitual residence to deter abductions, courts recognize that return orders are not absolute. When a custodial parent can demonstrate by clear and convincing evidence that a child faces genuine danger exceeding ordinary parental separation trauma—such as exposure to cartel violence coupled with an addicted parent’s unwillingness to reform—courts will invoke narrow exceptions to prevent return.
The Fifth Circuit’s affirmance signals that petitioners seeking return of children to jurisdictions marked by criminal violence and parental substance abuse must do more than deny involvement or assert their willingness to comply with custody orders. The grave risk exception operates as a meaningful safeguard even within the Convention’s strong presumption favoring return, particularly when the child has simultaneously developed ties to the new country (school, friendships, stable housing) over an extended period. Practitioners handling international child custody disputes should recognize that documented cartel connections and multi-year substance abuse patterns may overcome the Convention’s return remedy, especially when coupled with demonstrated stability and settlement in the new jurisdiction.