In re Marriage of Gonzalez Morales.
2024 COA 2. No. 22CA1867. Uniform Child-Custody Jurisdiction Enforcement Act—Warrant to Take Physical Custody of Child—Hague Convention on the Civil Aspects of Child Abduction—Patria Potestas
January 4, 2024
The parties were married in Texas and have one daughter. Shortly after their daughter’s birth, they relocated to Chihuahua, Mexico. Father subsequently filed for divorce, and the Family Court of the Morelos Judicial District, Chihuahua, Mexico, entered a decree dissolving the marriage. The parties’ custody agreement, which was adopted as an order of the Mexican court, awarded mother custody and established a parenting time schedule for father. It did not expressly address patria potestas rights or parental authority. Father went to mother’s home in Chihuahua for his scheduled parenting time and discovered that mother and the child were missing. Believing that mother had left the country with the child, father applied to Mexican authorities for the return of the child under the Hague Convention on the Civil Aspects of International Child Abduction (Hague Abduction Convention). After learning that the child was in Colorado, father filed in Colorado district court a petition for the registration and expedited enforcement of a child-custody determination pursuant to the Uniform Child-custody Jurisdiction and Enforcement Act. Father also sought and obtained a warrant under CRS § 14-13-311 and the Hague Abduction Convention to take immediate custody of the child and return her to Mexico. After a year of trying to locate mother and the child, father served mother with the district court pleadings and the warrant. The district court held a hearing on father’s request to return the child to Mexico pursuant to the Hague Abduction Convention, and after father presented his case, mother moved for a directed verdict in her favor under CRCP 50. The court construed mother’s motion for a directed verdict as a motion for entry of judgment under CRCP 41(b)(1). The court resolved the motion in mother’s favor, concluding that, under the decree and Mexican law, father did not have rights of custody that entitled him to seek the child’s return under the Hague Abduction Convention.
On appeal, father contended that the district court wrongfully granted mother’s CRCP 41(b)(1) motion and denied his petition for the return of the child because the court erroneously concluded that the decree did not provide him with any custody rights as defined by the Hague Abduction Convention. Parental rights in Mexico encompass a right of custody known as patria potestas, which refers to the reciprocal authority of mother and father to exercise parental authority that encompasses the comprehensive protection of the minor child. The Chihuahua Civil Code recognizes patria potestas as a bundle of rights over a minor child that are shared equally by the mother and the father, and cases interpreting the civil code of Chihuahua have concluded that patria potestas includes a right to determine a child’s place of residence. Here, the parties’ decree placed the child in mother’s care with father receiving regular visits, and the decree provides for reciprocal grants of travel rights, along with associated notice requirements and the temporary surrender of the child’s passport. But the decree is silent on patria potestas rights under Chihuahua law. Additionally, nothing in the decree allows mother to permanently relocate from Mexico. Accordingly, the court of appeals concluded that father did not surrender patria potestas rights and therefore maintained rights of custody sufficient to pursue an action for the child’s return under the Hague Abduction Convention. Therefore, the district court erred by granting mother’s CRCP 41(b) motion.
The order was reversed and the case was remanded for further proceedings.