Whallon v. Lynn

220 F.3d 450 (1st Cir. 2000)

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Nature of the Case

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Facts

Micheli was born in Mexico on July 4, 1995. M and F, both American citizens, never married, and they separated towards the end of 1995. Micheli lived with M and her half-sister Leah in Cabo San Lucas. At no time did M and F enter into a formal custody agreement; neither has sought a custody determination as to his or her own status. M claims F performed only a limited parental role and provided only sporadic child support. M claims that D subjected her to significant verbal abuse which escalates to physical violence. There were no claims of abuse directed towards Micheli. The record reflects a somewhat different story. F was significantly involved in Micheli's life. F paid at least $500 of child support for Micheli each month. F participated in all aspects of Micheli's life. In late September 1999, F learned that M was planning to take Micheli with her to Texas to visit M's parents. F filed a petition in the court of the State of Baja California Sur in Mexico to permanently deprive M of all custody rights over Micheli and to grant him all such rights. The court denied the petition because F had failed to establish the imminent danger, absolute abandonment, or sort of corruption or mistreatment required to terminate a mother's custody of a child under seven years of age. F's attorney attempted to block the departure and M, and the two children were held at gunpoint at the airport until a high-level official enabled them to leave. F denies having ordered such a drastic action. F then petitioned the district court in Massachusetts for Micheli's return to Mexico. The district court granted the petition. M had physical custody over Micheli, but F also exercised 'rights of custody' over Micheli within the meaning of the Convention. F had exercised patria potestas rights, and M's removal of Micheli violated F's actual exercise of rights of custody under Mexican law and was thus wrongful under the Convention. The court found no physical harm or verbal abuse ever directed at the child and concluded that they did not amount to the kind of grave risk of physical or psychological harm required to trigger exceptions. M appealed.