It’s not clear who’s in the best interest of a 6-year-old Mexican boy: his mother, who lives in Mexico, or his grandmother, who lives in Los Olivos. The boy—identified as “JXA” in a federal lawsuit filed by his mother, Itzel Inzunza, on May 3—is at the heart of an international custody battle between his mother and grandmother.
The boy was allegedly abducted by his grandmother, Rosa, on Nov. 2, 2014, from the town of Mora in Nayarit, Mexico, and brought to live in Los Olivos, according to the lawsuit.
Itzel sued to get her son back. On May 14, a federal judge cited the Hague Convention as reason to order return of the boy to his family.
He has since made it back to his mother, according to Jude Egan, the San Luis Obispo attorney who represents the grandmother. Throughout the lawsuit, Rosa is referred to as the abductor.
“The other lawyer said my client abducted the child, but I don’t think that’s a fair way of putting it,” Egan told the Sun.
Other attorneys see it differently. Los Angeles-based attorney Jesus Eduardo Arias, the lawyer representing Itzel, did not respond to messages left by the Sun. However, San Francisco attorney Stephen R. Ruben said the federal court judge made the right call.
Ratified in 1988, the Convention on the Civil Aspect of International Child Abduction is designed to restore the family, according to Ruben. Both the USA and Mexico are parties to the treaty, having signed it in 1988 and 1991, respectively.
Cases like the Inzunzas’ are familiar for Ruben. He’s one of a select group of family law attorneys across the state that specializes in international custody disputes. He also occasionally serves as a family court judge in San Francisco County Superior Court.
When parents flee with their kids to foreign countries, it’s difficult to mitigate without a formal agreement between them, Ruben said.
California receives more cases like this than most countries, according to the state’s Department of Justice website. In 2003, the state received 78 Hague cases—fourth behind Germany, Spain, and the United Kingdom—or 23 percent of the 345 Hague cases in the entire U.S., with half of them coming from Mexico, according to the website.
The cases keep growing. According to the DOJ website, California received an average of 69 new Hague cases each year between 2007 and 2011.
And the pool for attorneys who handle these types of cases is extremely limited, according to Ruben.
“It’s a short list,” Ruben said, adding that the county usually has a district attorney who is familiar with the Convention. “In the Bay Area, there are four to five attorneys and four to five that I know of in Southern California.
“If you’re going to have a case like this, you need to have someone who knows what’s going on, because you don’t want to give your client any false hopes,” Ruben said.
It may seem like a cut and dry custody case, but there are some facts about this case that Ruben admits are strange. Ruben said Hague cases like this hinge on “habitual residence.”
“If the child remains in the U.S. or another jurisdiction for more than a year, there is a very important defense of whether the child is well settled or not in his new community,” Ruben said.
In this case, Ruben says he is, since the boy had been living with his mother, father, and stepsister in Mexico for the last three years of his life.
The boy was born in Santa Maria to his mother, who was only 13 years old at the time. She is now 20 years old, according to court documents. Knowing that the mother was so young, the grandmother intended to adopt her grandson but never did.
What ensued can best be described as a case of international drama. In the following years, the child went back and forth between his grandmother and mother, each accusing the other of wrongfully taking him, according to court documents.
At 1 year old, the child moved with Rosa back to Mexico, intending for Itzel to care for him. But then Itzel hooked up with a man whom she eventually married, and Rosa took the child back to California. According to the lawsuit, Rosa did not approve of Itzel’s relationship. Itzel wanted her son back, so she went back to California and talked the grandmother into handing him over, court documents said.
But in 2014, Rosa traveled to Mexico and took the child back to California once more, believing that the stepfather mistreated the child. She even reported the stepfather to police, but they were unable to prove the grandmother’s claims.
According to Ruben, the grandmother did not show “clear and convincing evidence that the child was harmed.”
In the lawsuit, Itzel accuses her mother of trying to coerce the child into making false allegations.
Rosa won temporary custody of the boy in Santa Barbara County Superior Court, but Arias (Itzel’s lawyer) argued that it was invalidated by the federal lawsuit, according to court documents.
With the child’s habitual residence established and no substantiated claims of abuse, the grandmother’s legal remedies are limited, according to Ruben.
Filing the lawsuit in a timely manner worked for the child’s mother. If Itzel hadn’t filed a lawsuit within a year, the law would have presumed that the child’s habitual residence would’ve changed, according to Ruben.
It also helps to have a local attorney who knows Mexican law, Ruben said. In this case, Rosa didn’t, and her attorney even admitted that he’s not entirely familiar with how child custody cases are decided there.
And it makes no difference that the child is an American citizen, Ruben said.
For now, the grandmother’s attorney, Egan, said his client’s still searching for other options. It’s not clear what they might be or whether she’ll still receive some custody of the child. The Hague Convention does not get into the “niceties in how much time grandmother should spend with grandson,” Ruben said.
At this point, both Ruben and Egan agree that the case can only be decided in a Mexican court.
“What we’re talking about here is a criminal act of abduction, and you can’t ignore that,” Ruben said. “What gave grandma the right to unilaterally remove her grandson out of the family?”
Contact Staff Writer David Minsky at dminsky@santamariasun.com.
This article appears in Jul 9-16, 2015.