Reported / Citable
Background
Roberto Carlos Mendiola Lazo, a Peruvian national, petitioned under the Hague Convention on the Civil Aspects of International Child Abduction and its implementing statute, ICARA, 22 U.S.C. §§ 9001–11, for the return of his seven-year-old son, G.A., to Peru. G.A. was born in Lima in 2019. The child’s mother, Maurely Melitza Rodriguez Vera, a Venezuelan national, left G.A. in Petitioner’s care in July 2022 when she accepted a teaching position in Texas. In July 2024, Respondent traveled to Peru to visit G.A. and, after the child disclosed alleged abuse, removed him to Texas without Petitioner’s consent. Petitioner filed this action within one year of the removal.
The parties stipulated that Peru was G.A.’s habitual residence immediately before the removal and that Respondent removed him without Petitioner’s consent. Respondent raised the Article 13(b) affirmative defense, asserting that return would expose G.A. to a grave risk of physical or psychological harm. The Court held a two-day bench trial in November 2025, appointed a bilingual guardian ad litem in March 2026, and received the guardian’s report in April 2026. The guardian ad litem concluded, based on interviews with both parents and the child, that return to Peru would expose G.A. to a grave risk of both physical and psychological harm.
The evidentiary record included testimony that Petitioner was convicted in Peru in 2021 of violence against women or family members arising from a 2020 incident in which he physically assaulted Respondent — a conviction later expunged after he completed community service. Petitioner also admitted at trial that he struck G.A. with a belt at least twice when G.A. was approximately three and a half years old for refusing to eat, expressed no remorse, and characterized the conduct as normal discipline. G.A.’s school had separately recommended psychological evaluation and speech therapy, and G.A. reportedly told his mother that his father hit him for bedwetting accidents.
The Court’s Holding
The Court first found that Petitioner established a prima facie case of wrongful removal under Article 3 of the Convention. G.A. was under sixteen, Peru was his habitual residence, and Petitioner held and was exercising custody rights at the time of removal — confirmed by the Peruvian Family Court’s denial of Respondent’s own petition to relocate G.A. to the United States.
The Court then turned to Respondent’s Article 13(b) grave-risk defense, which requires proof by clear and convincing evidence. Applying Fifth Circuit precedent that courts must assess both the magnitude and the probability of harm, the Court found Respondent met that burden. Petitioner’s own admissions established a pattern of belt-striking a toddler, with no remorse and a demonstrated intent to use the threat of physical punishment as a behavioral control tool. That admitted child abuse was compounded by a documented history of intimate partner violence against Respondent, the child’s visible fear responses around physical discipline, the school’s concerns about G.A.’s psychological state while in Petitioner’s primary care, and the guardian ad litem’s independent assessment. The Court credited Respondent’s testimony as consistent, detailed, and corroborated; it found much of Petitioner’s testimony not credible, particularly his efforts to minimize and deflect blame for the August 2020 domestic violence incident despite his prior guilty plea.
The Court accordingly denied the Amended Petition for Return. It distinguished cases where only sporadic or isolated physical discipline was shown — insufficient under circuit precedent — from this record, which reflected a petitioner who had “actually abused” the child, inspired fear in the child, and demonstrated a broader propensity for violence consistent with the framework articulated in Ermini v. Vittori, 758 F.3d 153 (2d Cir. 2014), and Simcox v. Simcox, 511 F.3d 594 (6th Cir. 2007).
Key Takeaways
- A petitioner’s own trial admission that he repeatedly struck a three-year-old with a belt — combined with a lack of remorse and a prior domestic-violence conviction — can satisfy the Article 13(b) grave-risk defense by clear and convincing evidence, even though that standard is narrow and not a proxy for best-interests analysis.
- Evidence of intimate partner violence against the removing parent is relevant to the Article 13(b) inquiry: courts may treat it as probative of a petitioner’s general propensity for violence and the resulting risk to the child.
- The appointment of a guardian ad litem to interview the child and both parents can be an effective procedural tool in Hague Convention proceedings where the factual record on risk is contested; the guardian’s independent report may carry significant weight in the court’s credibility and risk assessment.
- A petitioner’s failure to show remorse or acceptance of responsibility at trial is a meaningful credibility factor that courts will consider in evaluating whether future harm is probable.
Why It Matters
This decision illustrates how courts in the Fifth Circuit navigate the tension between the Hague Convention’s strong presumption in favor of return and the Article 13(b) safety valve. The opinion offers a detailed template for how admitted, rather than merely alleged, physical abuse of a young child — particularly when coupled with a documented history of domestic violence and evidence of the child’s fear response — can clear the clear-and-convincing bar without collapsing the grave-risk inquiry into a prohibited best-interests determination.
Practitioners should also note the Court’s procedural approach: after a bench trial produced a contested record, it appointed a bilingual guardian ad litem to conduct independent interviews of the child and both parents. That report ultimately corroborated the respondent’s position and influenced the outcome. Attorneys litigating Hague Convention cases involving allegations of physical abuse should consider whether guardian appointment is warranted early in the proceedings, both to develop the record and to give the court an independent assessment of the child’s actual circumstances.