In the recent case Delgado-Ramirez v. Lopez, the Western District of Texas rejected a defense regarding the exercise of rights of custody, despite a Mexican court's revocation of parental rights two days before the wrongful removal.
The child, D.L.A., was living with Delgado-Ramirez, who had custody. D.L.A. however was the natural child of Avila and Lopez. Before the removal, the child had moved backed in with Avila. However,
Delgado-Ramirez had registered D.L.A. for school in Ciudad Juarez; was paying for that school and other expenses related to D.L.A.'s care; was exercising her authority over D.L.A.'s living arrangements by allowing D.L.A. to live with the mother, with ongoing monitoring to ensure that D.L.A. was receiving adequate care; and was the person with authority to determine when Lopez's visits would take place.
On September 4, 2010, Lopez took the child to El Paso, Texas. A Mexican court revoked Delgado-Ramirez's custody on September 6.
In U.S. District court, Lopez contended that D.L.A. should not be returned to the habitual residence in Mexico because Delgado-Ramirez was not exercising rights of custody, as the Convention requires. The court required that Lopez prove this by showing "'acts that constitute clear and unequivocal abandonment of the child." Applying case law of the the Fifth and Sixth Circuit, the court held that this standard was not met for three reasons.
First, the Mexican revocation did not define an exercise of custody rights. The District Court interpreted case law as defining a "'ruling of the child's country of habitual residence' to refer to a broadly applicable decision defining the term 'exercise,' rather than a reference to a decree specifically applicable in a case before a court."
Second, the Mexican decision did not specify whether Delgado-Ramirez was exercising rights of custody.
Finally, the Mexican courts afterwards reinstated Delgado-Ramirez's custodial status.
Thus, we see that in Texas, as in most U.S. courts, the removing parent has a heavy burden to prove that the left-behind parent was not exercising rights of custody.