Filed 8/27/26 Zavaleta v. Superior Court CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
FABIOLA GARCIA ZAVALETA,
D088256
Petitioner,
(Super. Ct. No. 26FL002345C)
v.
THE SUPERIOR COURT OF
SAN DIEGO COUNTY,
Respondent;
TODD MATTHEW BEAVER,
Real Party in Interest.
ORIGINAL PROCEEDING on petition for writ of mandate challenging
an order of the Superior Court of San Diego County, Christopher S. Morris,
Judge. Relief granted.
Kacey Coony, for Petitioner.
No appearance by Respondent.
Todd Matthew Beaver, in pro. per, for Real Party in Interest.
INTRODUCTION
Fabiola Garcia Zavaleta (Garcia) seeks an order directing
Todd Matthew Beaver to return their daughter, HBG, to Garcia’s custody in
Mexico. She contends the trial court erred when it denied her petition under
the Hague Convention on the Civil Aspects of International Child Abduction,
October 25, 1980, T.I.A.S. No. 11670 (Hague Convention) and its
implementing legislation, the International Child Abduction Remedies Act of
1988 (22 U.S.C. § 9001 et seq.). We agree the court erred for reasons we shall
explain and therefore grant Garcia’s petition for writ of mandate for the
return of HBG to Garcia in Mexico.
FACTUAL AND PROCEDURAL BACKGROUND
I.
HBG Was Born in Mexico and Resided There with Garcia
Until She Was Six Years Old
Garcia and Beaver met in 2016 and began a dating relationship in
Puebla, Mexico. Garcia is a Mexican citizen, and Beaver is a United States
citizen who was living in San Diego at the time. Garcia learned she was
pregnant in June 2017. She relocated to Tijuana and began living with
Beaver. Beaver paid her moving expenses and paid the rent and utilities for
their shared residence. Garcia gave birth to HBG in Tijuana in March 2018.
Beaver was recognized as HBG’s father on her birth certificate in September
2019.
From the time HBG was an infant until she was five years old—from
March 2018 to October or November of 2023—she lived with Garcia and
Beaver together as a family in Tijuana. In the home was also HBG’s older
half-sister, Garcia’s daughter from a previous relationship.
2
For the first 18 months of her life, Garcia enrolled HBG in daycare,
first at the Estancia Infantil Kindergarten, and later at “the free daycare for
workers affiliated with Social Security in Mexico.” HBG attended her first
two years of school at the Centro Educativo Madrid, and her third year at
Semillero Educativo. In August 2021, she began her first year of
kindergarten at the Madrid Education System.
From January 2020 to August 2021, HBG received medical treatment
in Tijuana for “bronchial issues.” Both parents changed their work schedules
to care for her at home.
Beaver maintained a residence in San Diego but spent several days a
week in Tijuana. He commuted to San Diego to work as a carpenter, and
Garcia worked as a nurse at a local hospital. Beaver “paid the rent and all
household and living expenses” for the family in Tijuana.
Beaver and Garcia never married. In October 2022, they obtained a
Mexican passport for HBG. In February 2023, Beaver obtained a Mexican
“permanent resident visa based on family relationship,” relying on his
relationship with Garcia and HBG’s Mexican passport. (Capitalization
omitted.) Beaver’s Mexican permanent resident visa is currently valid.
In March 2023, Garcia obtained a tourist visa for HBG, and they
visited the United States for a 10-day vacation. Over the years, Beaver did
not seek to document HBG as a U.S. citizen. According to Garcia, Beaver told
her that he did not want the family to move to San Diego and “he would not
apply for HBG’s citizenship because it was very difficult and expensive, and it
was unnecessary since [they] would live in Mexico in the future . . . as life in
the United States was very expensive.” The couple argued about this issue
regularly.
3
In October 2023, after an argument, Beaver left the family’s home and
did not return. He had “decided to move out of the home in Mexico and solely
reside in San Diego.” According to Garcia, he stopped helping care for HBG
on weekends as he had previously done, and he stopped paying “for
everything.” According to Beaver, Garcia allowed him to communicate with
HBG only by telephone after he left and he continued paying the rent and
living expenses.
In late November and early December 2023, Garcia filed a civil lawsuit
against Beaver in the Seventh Family Court of Tijuana requesting child
support and sole custody of HBG. Beaver appeared in person before the
Mexican court in March 2024 and filed an answer disputing Garcia’s right to
“final custody.”1 The Mexican court provisionally ordered Beaver to pay
20 percent of his total income to Garcia as child support.
II.
Garcia Is Arrested and Grants Temporary Guardianship of HBG to Beaver
On March 10, 2024, Garcia was arrested by California Border Patrol
(CBP) officers at the San Ysidro Port of Entry after illegal narcotics were
found hidden in her vehicle. HBG was in the car. CBP officers called Beaver
and turned HBG over to him. According to Beaver, HBG’s United States
tourist visa was revoked.
1 Contrary to his assertion that Garcia allowed only telephone contact
with HBG after he left, in his answer, Beaver did not claim that Garcia
refused to allow him to visit HBG. He wrote, “From this moment, I
respectfully request . . . to establish a visitation and custody arrangement
between the minor child and myself as her father. In the event that . . . the
mother of the minor, unjustifiably refuses or prevents me from having
contact with my daughter, I request that I be granted the effective exercise of
custody over the minor child.”
4
Garcia admitted to federal agents that she knew she was illegally
smuggling items over the border, but she said she thought she was smuggling
jewelry. She said she was unaware that narcotics had been placed in her car
and she had been used as a “ ‘blind mule.’ ”2 Garcia denied any relationship
with drug cartel members and believed that the person who asked her to
carry the jewelry deceived her. She also claimed she agreed to transport the
jewelry because Beaver stopped supporting her. While in custody, she spoke
to HBG every night.
In April 2024, Beaver visited Garcia while she was in jail and asked for
“legal custody” of HBG so he could enroll her in school and authorize her
medical care. According to Beaver, he also believed that Garcia needed to
give legal custody to him in order to establish HBG’s U.S. citizenship and get
her a U.S. passport.3 Garcia did not agree to his request. Instead, she
mailed him a notarized document granting “temporary custody” only as
follows: “[I] Fabiola Garcia Zavaleta [want] to give temporary custody of my
daughter [HBG] . . . to my fiancé Todd Matthew Beaver . . . for medical,
dental and educational reasons . . . while I am in detention.” (Italics added.)
III.
Garcia Is Released from Detention and Deported
On May 28, 2024, the drug charges were dismissed but Garcia pled
guilty to making a false statement to a federal agent. She was sentenced to
2 We understand the term “blind mule” to mean a person who
unknowingly transports illegal contraband across a border.
3 To obtain a passport for a minor under 16, a United States citizen
parent needs either sole legal custody or written, notarized consent from the
other parent or guardian. (22 C.F.R. § 51.28, subd. (a)(3)(ii).)
5
time served on August 12, 2024, and released from detention that same day.
Her United States tourist visa was revoked and she was deported. She is
prohibited from visiting the United States for 10 years.
IV.
Beaver Refuses to Return HBG to Garcia’s Custody in Mexico
A. Garcia’s Version of Events
According to Garcia, she asked Beaver to bring HBG “to Tijuana as
[they] had agreed.” But Beaver told her that she should “settle in first,” and
reset the electricity and water service at the apartment. In the first few days
after her release, she “cried and begged [Beaver] to bring [HBG] back to
Tijuana . . . to her home and school,” but he “said he had started a citizenship
process for [her] and that while it was ongoing, [HBG] could not leave
California until her . . . citizenship was granted.” He told her “the
immigration process would take [seven to nine] months.” He “promised that
he would return [HBG] to [her] and [they] would all live together again in
Tijuana.”
For the next seven months, Garcia spoke with HBG regularly, almost
every day. HBG cried often, wanting to return to Tijuana with her mother.
Beaver explained to HBG that she could return to Tijuana once her U.S.
citizenship was established.
After seven months had passed, in March 2025, Garcia asked Beaver
again to return HBG. Beaver said “the citizenship process was taking longer
and could extend up to 12 months. He also said he needed to obtain [HBG’s]
passport before she could leave and return to Mexico.” According to Garcia,
she and Beaver then “agreed that he would return [HBG] at the latest when
the school year ended in June 2025. Once school ended, [Beaver] promised he
would bring her back, and by that time, she would have her U.S. citizenship
6
and passport.” Garcia later explained, “I agreed because he was going to get
her citizenship.”
In May 2025, Garcia sent a text message to Beaver about HBG’s
upcoming summer vacation. Beaver replied, “I have nothing to say about
your vacation. [HBG] doesn’t have her passport yet and I’m not sure when
she will get it.”4
One month later, in June 2025, Garcia “asked [Beaver] again to return
[HBG] as it was already time for school vacation. It was important for [her]
to re-enroll [HBG] in the school she previously attended . . . as she was to
start first grade. [¶] [HBG] packed her bag and clothes to return to Tijuana,”
and she showed Garcia “by video call that she had packed all her toys in a
black bag.” Garcia painted HBG’s bedroom in anticipation of her return.
On June 17, 2025, Beaver told Garcia “HBG would not return to
Tijuana,” that “she would not live in Tijuana,” and that “he would re-enroll
her in school in San Diego for the 2025–2026 school year.” (Boldface
removed.) He told her “she would remain with him no matter what Garcia
did.” He stopped paying Garcia’s rent and expenses and she had to move.
For the next nine months, Beaver stopped answering Garcia’s calls and did
not allow her to speak with HBG at all. He eventually allowed one phone call
on Garcia’s birthday, March 7, 2026,5 and then some limited contact after
that.
4 Beaver had not applied for a U.S. passport on behalf of HBG.
5 HBG had just turned seven years old one day earlier.
7
B. Beaver’s Version of Events
According to Beaver, after Garcia was released from detention, they
came to an agreement that HBG “would attend school [in the United States]
and [Garcia and HBG] would have holidays and weekends and summer
vacations together.” Beaver explained that Garcia told him, “I’m not a
weekend mother, but I know [HBG] is better off in the school system there
and she’s healthy and she’s doing well.” But after Garcia agreed to the plan,
Beaver could “never get her . . . sign any paperwork to . . . let [him] try to get
her citizenship squared away” so she could cross the border to Mexico and
come back.
From August 2024 through June 2025, Garcia kept asking when HBG
could come back and Beaver “would tell her that [he] needed to be able to
complete the immigration process with her, and in order to do that,” he
“needed to have custody of [HBG], formal legal custody, not temporary but
formal custody.” But Garcia “never would give [him] custody in order to go
forward with that process.” Beaver claimed he never told or “guaranteed”
Garcia that HBG would come back to Garcia in June 2025 when she got out
of school.6 Beaver explained he did not know if this disagreement was a
result in “a breakdown of communication with language barriers.”
6 In his informal response, Beaver takes an inconsistent position. He
claims, “Following [Garcia’s] release from detention in August 2024, the
parties mutually agreed that [HBG] would remain in the United States to
attend school for the 2024/2025 academic year, which concluded in
June 2025,” and he “did not return [HBG] in June 2025 solely due to an
inability to unilaterally obtain the necessary international passport
documentation for the minor child.”
8
In June 2025, Beaver “was tiring” of “forcing” HBG to talk with Garcia
and he decided to allow no further direct communication between them. In
his words, he “cut her off.”
Nine months later, Beaver allowed Garcia to talk to HBG on Garcia’s
birthday because he “felt it was the right thing to do.” After the birthday
phone call, Garcia called every night. Beaver believed this to be “too much”
and allowed her to speak with HBG about “twice a week for approximately an
hour at a time.” He characterized facilitating HBG’s conversations with her
mother as a “chore.”
V.
HBG’s Life in San Diego as of June 17, 2025
HBG had just turned six years old when she arrived in San Diego in
March 2024. The parties do not dispute that she was undocumented. Beaver
enrolled her in first grade at a San Diego school at the end of July 2024,
which was a few weeks before Garcia was released from detention. HBG did
well in school and rapidly learned English. She was seen by a pediatrician
and her respiratory ailments had improved. She took ballet lessons and had
friends.
From August 2024 to June 2025, Garcia talked by video with HBG on a
regular basis from the family’s apartment in Mexico with the expectation
that she would be returned to Mexico. She also attended her parent-teacher
conferences by video. Garcia was able to remain in the Tijuana apartment
with Beaver’s financial help and most of HBG’s belongings remained there.
As of June 17, 2025, Beaver had not taken any steps to establish HBG’s U.S.
citizenship, and so she remained undocumented.
9
VI.
Beaver’s Representations About Documenting HBG’s Citizenship
According to Beaver, in 2020, he “made an attempt” to obtain a
Consular Report of Birth Abroad (CRBA) for HBG from the United States
Consulate in Tijuana, but “he couldn’t figure out how to file the paperwork”
because the process changed to include an online application during the
COVID-19 pandemic. He then met with an attorney in 2021 and purportedly
learned “that [he] was in trouble because of the prerequisites that could not
be met without being fraudulent.”7
When Garcia was detained in 2024, Beaver claims he “tried to obtain a
passport,” but was “rebuffed” at the post office because he did not have legal
custody or a certificate of citizenship.8 He consulted with two immigration
attorneys, and they confirmed he needed to apply for a certificate of
citizenship with the Department of Homeland Security using U.S.
Citizenship and Immigration Services Form N-600 (Form N-600). Based on
7 By “fraudulent,” Beaver appears to mean that he did not think he had
sufficient documentary proof he was the father. For example, he explained
that he did not have a lease agreement showing that he lived with Garcia
when HBG was conceived or “pictures of [them] together when she was
pregnant.” If HBG’s birth certificate naming him as the father was
insufficient, we do not understand how, with the availability of DNA testing,
there could be any impediment to Beaver establishing paternity by clear and
convincing evidence. It is no secret that the U.S. State Department accepts
DNA testing as proof of biological parentage as a matter of course:
https://travel.state.gov/content/travel/en/legal/travel-legal-considerations/us-
citizenship/US-Citizenship-DNA-Testing.html.
8 As noted, the requirement is either sole legal custody or written,
notarized consent from the other parent or guardian. (22 C.F.R. § 51.28,
subd. (a)(3)(ii).)
10
these consultations, he believed he could not establish citizenship for HBG
from within the United States without Garcia’s agreement to grant him legal
custody.9
Later, when Garcia was released from detention and returned to
Mexico, Beaver unilaterally decided he would not seek a CRBA in Tijuana
because he did not want HBG to remain in Mexico with Garcia while her
application was processed. He represented that he was concerned that
Garcia could somehow make the application process “difficult” because she
was a “hostile party.”10 As noted, he claimed he was advised that he would
have trouble meeting the prerequisites for obtaining a CRBA.11 He also said
he thought the U.S. government might not allow HBG to return.12
9 There is no such requirement for children who automatically derive
citizenship at birth. (See 8 U.S.C. § 1409.) The legal and physical custody
requirement to obtain a certificate of citizenship applies to children born
outside of the United States who automatically derive citizenship after birth
when they are lawfully admitted to the United States for permanent
residence with a citizen parent (through an adoption, for example). (See
8 U.S.C. § 1431.) The instructions for Form N-600 specifically provide, “Proof
of legal and physical custody is generally not required for applicants claiming
U.S. citizenship at birth.” (https://www.uscis.gov/n-600.)
10 Beaver did not explain why he thought Garcia could interfere with the
application. “[E]ither parent may apply for [a CRBA] regardless of which
parent has been awarded custody.” (8 F.A.M. § 506.1.)
11 Beaver did not explain why he thought he would be able to establish
citizenship through the certificate of citizenship process but not through the
CRBA process. The requirements for acquiring citizenship at birth through
an unmarried father are statutory and not dependent upon the method used
to obtain documentation. (See 8 U.S.C. §§ 1401, subds. (e), (g), 1409;
22 C.F.R § 50.5.)
12 Beaver did not explain the basis for this concern either. A U.S. citizen
11
Beaver told Garcia that the process to obtain a certificate of citizenship
for HBG would take until June 2025. But he never actually filed an
application, purportedly because he could not get Garcia to agree to grant
him legal custody.
VII.
The Trial Court Rules That Jurisdiction Over Custody and Visitation
Lies in the United States
On July 15, 2025, Garcia filed an application with the Mexican Central
Authority in Tijuana pursuant to the Hague Convention seeking HBG’s
return. The application was referred to the San Diego County District
Attorney’s Office, which conducted an investigation and filed a petition in
superior court as a friend of the court. (See Fam. Code, §§ 3130–3135, 3455.)
The San Diego Superior Court conducted an evidentiary hearing on the
petition on May 4, 2026. The court provided the parties with an oral ruling
at the conclusion of the hearing and followed up with a written ruling later
that day.
As a preliminary matter, during the hearing, the trial court rejected
Beaver’s affirmative defense that there would be a grave risk of harm to HBG
within the meaning of the Hague Convention if she were returned to Mexico.
Beaver argued Garcia was still in contact with people involved in drug
smuggling. The court did not credit Beaver’s alleged concerns about this
grave danger because he testified that he had agreed to allow Garcia to spend
weekends, holidays, and the summer with Garcia in Tijuana once she had her
U.S. citizenship documented. In addition, as counsel for Garcia pointed out,
minor child under the age of 16 may cross the border with Mexico by
presenting a copy of a CRBA. (8 C.F.R. § 235.1, subd. (b)(8)(i).)
12
Garcia cannot assist smugglers for 10 years while she is barred from crossing
the border.
Turning to Garcia’s case in chief, the trial court found that Garcia and
Beaver agreed that HBG would “stay and remain in the United States up
through and until June . . . 2025.” The court found that Beaver breached
Garcia’s custodial rights when he kept HBG beyond the agreed-upon date for
return. And the court found that, while HBG’s habitual residence “clearly
was in Mexico” when Garcia was detained at the border in March 2024, the
relevant inquiry was where her habitual residence was when Beaver retained
her in June 2025 in violation of Garcia’s custodial rights. The court found,
under the totality of the circumstances, that after 14 months of living with
Beaver, HBG’s habitual residence had become the United States.
The trial court’s written ruling provided:
Garcia “has proven by a preponderance of the evidence that [HBG] was
wrongfully retained in the United States, in breach of [Garcia’s] rights of
custody, and that those custody rights would have been exercised but for the
retention.” [¶] “However, as of this date of wrongful retention, the child had
been living and residing with [Beaver] since [Garcia] was incarcerated in
March . . . 2024, a period of fourteen months. [Garcia] was arrested after
[CBP] had found a large quantity of drugs in her car. During her time in the
United States, [Beaver] enrolled her in school, retained a pediatrician and a
psychologist. As of June 2025, [HBG] had made friends, become fluent in
English, and had settled into [Beaver’s] home. In short, HBG had become
well-settled in the United States and, under an analysis of the totality of the
circumstances before the court, the United States had become her habitual
place of residence.” (Italics added.) Accordingly, the court denied Garcia’s
petition for an order to return HBG to her custody in Mexico.
13
DISCUSSION
Garcia contends the trial court’s ruling must be reversed because (1)
the court erroneously found that Beaver’s unauthorized retention of HBG
took place on June 2025 instead of August 2024, and (2) incorrectly found
that HBG’s habitual residence was in the United States as of June 2025. We
conclude the court erred when it determined HBG’s habitual residence was
the United States because the record lacks substantial evidence to conclude
HBG’s residence here was “sufficiently enduring to be deemed ‘habitual.’ ”
(Monasky v. Taglieri (2020) 589 U.S. 68, 76 (Monasky).) And because no
affirmative defenses apply, we conclude HBG must be returned to Garcia’s
custody in Mexico. We find it unnecessary, therefore, to reach Garcia’s first
contention regarding the date Beaver unlawfully kept HBG from her.
I.
Governing Legal Principles
An adjudicator’s habitual-residence determination presents a mixed
question of law and fact. (Monasky, supra, 589 U.S. at pp. 83–84.) It is
settled that the “[i]nterpretation of the convention itself is a legal question,
which we review de novo.” (Maurizio R. v. L.C. (2011) 201 Cal.App.4th 616,
634 (Maurizio).) “A trial court’s application of the convention to facts is [also]
reviewed de novo.” (Ibid.)
We observe, however, that “[t]here is no consensus in California
regarding whether the trial court’s factual determinations in an action under
the Hague Convention are reviewed for ‘clear error,’ under the federal
standard, or ‘substantial evidence,’ under California law.” (Maurizio, supra,
201 Cal.App.4th at p. 633.) In our view, the substantial evidence standard of
review almost certainly applies because “rules defining the standard of
appellate review are, in general, procedural not substantive.” (Schlessinger v.
14
Holland America (2004) 120 Cal.App.4th 552, 558, fn. 3.) But we do not need
to resolve this question because our conclusion is the same under either
standard.
Under California law, the trial court’s resolution of disputed factual
issues must be affirmed if supported by substantial evidence. “ ‘Substantial
evidence’ is evidence of ponderable legal significance, evidence that is
reasonable, credible and of solid value.’ ” (Roddenberry v. Roddenberry (1996)
44 Cal.App.4th 634, 651.) “The ultimate test is whether it is reasonable for a
trier of fact to make the ruling in question in light of the whole record.” (Id.
at p. 652.)
Under federal law, the “standard of review is [also] deferential to the
finder of fact. . . . A finding is ‘clearly erroneous’ [only] when although there
is evidence to support it, the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has been committed.”
(Escobar v. Flores (2010) 183 Cal.App.4th 737, 748 [cleaned up].)
“[F]or a petitioner to prevail on a claim under the Hague Convention,
he or she must demonstrate: ‘(1) that the child was habitually resident in one
[s]tate and has been removed to or retained in a different [s]tate; (2) that the
removal or retention was in breach of the petitioner’s custody rights under
the laws of the [s]tate of habitual residence; and (3) that the petitioner was
exercising those rights at the time of the removal or retention.’ ” (Velozny on
behalf of R.V. v. Velozny (S.D.N.Y. 2021) 550 F.Supp.3d 4, 13 (Velozny).)
Garcia, as the petitioner, has the burden of establishing each of these
elements by a preponderance of the evidence. (Ibid.)
“[O]nce a [petitioner] establishes that removal [or retention] was
wrongful, the child must be returned unless the defendant can establish [an
affirmative defense.] The Convention provides four potential defenses: (1)
15
that judicial proceedings were not commenced within one year of the child’s
abduction and the child is well settled in the new environment, (2) that the
person seeking return of the child consented to or subsequently acquiesced in
the removal or retention, (3) that there is a grave risk that [the child’s] return
would expose the child to physical or psychological harm or otherwise place
the child in an intolerable situation, or (4) that return of the child would not
be permitted by the fundamental principles . . . relating to the protection of
human rights and fundamental freedoms. In addition to these enumerated
defenses, a court may refuse to order the return of the child if it finds that the
child objects to being returned and has attained an age and degree of
maturity at which it is appropriate to take account of its views.” (Velozny,
supra, 550 F.Supp.3d at p. 14 [cleaned up].)
These defenses are permissive. “[A] court may order return even if it
finds that the parent opposing the petition has established that one of the
exceptions applies.” (Walker v. Walker (3d Cir. 2012) 701 F.3d 1110, 1123.)
Relevant here, “[a] child’s habitual residence depends on the totality of
the circumstances specific to the case.” (Monasky, supra, 589 U.S. at p. 71.)
As explained by the United States Supreme Court, “[a] child ‘resides’ where
she lives.” (Id. at p. 76.) But “[a child’s] residence in a particular country can
be deemed ‘habitual’ . . . only when [the child’s] residence there is more than
transitory.” (Ibid., italics added.)
When assessing whether there has been a change in a child’s habitual
residence, “facts indicating acclimatization [are] highly relevant.” (Monasky,
supra, 589 U.S. at p. 78.) “Facts courts have considered include: a change in
geography combined with the passage of an appreciable period of time, age of
the child, immigration status of child and parent, academic activities, social
engagements, participation in sports programs and excursions, meaningful
16
connections with the people and places in the child’s new country, language
proficiency, and location of personal belongings.” (Ibid. , fn. 3 [cleaned up].)
In addition, “[b]ecause children, especially those too young or otherwise
unable to acclimate, depend on their parents as caregivers, the intentions
and circumstances of caregiving parents are relevant considerations.” (Id. at
p. 78.)
II.
Analysis
A. Habitual Residence
Applying the governing legal principles, the evidence amply supported
a finding that HBG resided in the United States as of June 2025. As the trial
court explained, “[she] had made friends, become fluent in English, and had
settled into [Beaver’s] home.” But the test is whether there is evidence of
habitual residence, and we conclude the evidence was insufficient to establish
that the United States was HBG’s habitual residence within the Hague
Convention’s meaning.
We start with the understanding between the parties. As noted, “the
purposes and intentions of the parents” are a relevant factor when assessing
a child’s habitual residence. (Monasky, supra, 589 U.S. at p. 79.) Here, the
trial court found that Garcia and Beaver entered into a “clear” agreement
that HBG’s stay in the United States would be temporary, not indefinite or
permanent. The contemplated stay was until June 2025 and even less time if
Beaver obtained HBG’s U.S. citizenship. Beaver’s misrepresentations to
Garcia about starting the citizenship documentation process, when he did
not, and his undisclosed intent to keep HBG in the United States indefinitely
are relevant to this factor. (See generally, Rishmawy v. Vergara (S.D. Ga.
2021) 540 F.Supp.3d 1246, 1275–1277 [Honduras was child’s habitual
17
residence despite father’s undisclosed intent to permanently reside with her
in the United States].)
Against the backdrop of this agreement, HBG was a young child, aged
only six years old when she began living with Beaver in the United States.
She had previously lived on a full-time basis with her mother, and half-
sibling, and there is no evidence HBG was ever told—before June 17, 2025—
that she would not be returning to Mexico and that her stay with her father
was permanent. It was undisputed that Garcia kept in close contact with
HBG on an almost daily basis with the shared expectation that she would be
returned to her mother in Mexico at the end of the school year, or sooner if
Beaver documented her U.S. citizenship. Beaver was asked repeatedly what
he told HBG about her situation. He never told her she would not be
returning to her mother.
The parties further lived within commuting distance of each other.
This is not the typical Hague convention case where an ocean or vast distance
separates the parties. San Diego and Tijuana together comprise a binational,
regional, cross-border economy. For five and one-half years, HBG lived in
Mexico while her mother worked in Tijuana and her father commuted to
work in the United States. HBG’s experience is commonplace here for
children on both sides of the border. This fact weighs heavily against
concluding that a single school year spent in the United States—with her
mother in regular contact under the assumption that a commuting
arrangement would be reinstated—was “sufficiently enduring to be deemed
‘habitual.’ ” (Monasky, supra, 589 U.S. at p. 76.)
Finally, and most important to our analysis, HBG’s undocumented
status was decidedly unsettled and, indeed, precarious. It still is. We find
this factor to be an overriding consideration.
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“[While] . . . the legal definition of ‘residency’ is not determinative of
the ‘habitual residency’ question under the Hague Convention, courts
commonly consider the legal residency status of the parties in a new country.”
(Foster v. Foster (W.D. Wis. 2019) 429 F.Supp.3d 589, 609; cf. Cabrera v.
Lozano (In re Cabrera) (S.D. Fla. 2004) 323 F.Supp.2d 1303, 1314 [“[T]he
uncertain immigration status of a parent and her child is a factor suggesting
that a child is not settled.”].)
Here, Beaver took no steps to document HBG’s U.S. citizenship for the
14 months prior to June 17, 2025, and only recently—on June 8, 2026—
started the process by filing a petition in superior court to acknowledge his
parental relationship. As we have explained, the citizenship application
process is within Beaver’s control. Without the protection of documented
citizenship, HBG is at risk of detention and deportation. Absent such
protection, under the circumstances here, we cannot find the United States is
HBG’s habitual residence.
For all of the reasons discussed, but for this final reason in particular,
we conclude the evidence was insufficient to establish that HBG’s residence
in the United States in June 2025 was more than “transitory” and
“sufficiently enduring to be deemed ‘habitual.’ ” (Monasky, supra, 589 U.S. at
p. 76.) We do not believe proceedings are appropriate here in the
United States when HBG is at risk of being deported.
B. Affirmative Defenses
Beaver contends affirmance is required because the trial court correctly
ruled that he proved the affirmative defense that “judicial proceedings were
not commenced within one year of the child’s abduction and the child is well
settled in the new environment.” (Velozny, supra, 550 F.Supp.3d at p. 14.)
We are not persuaded.
19
The relevant part of the court’s ruling states: “In short, [HBG] had
become well-settled in the United States and, under an analysis of the
totality of the circumstances before the court, the United States had become
her habitual place of residence.” Our understanding of the court’s use of
“well-settled” in this context is that the court was invoking the term’s
ordinary meaning—fixed, rooted, enduring—and not ruling that Beaver
proved the elements required to establish the “well-settled” defense under the
Hague Convention. Regardless, if the court intended otherwise, this aspect of
its ruling would be clearly erroneous. The court found that Beaver retained
HBG in violation of Garcia’s custody rights in June 2025, and Garcia
commenced proceedings under the convention in July 2025, well within the
one-year deadline. The well-settled defense applies only if the deadline is
missed. Garcia did not miss the deadline and so the defense is inapplicable.
Beaver in addition contends that the trial court’s ruling should be
upheld on the alternative ground that there is a grave risk that HBG’s return
to Mexico will expose her to physical harm. (Velozny, supra, 550 F.Supp.3d
at p. 14 [cleaned up].) His argument is forfeited because it is conclusory,
undeveloped, and unsupported by citations to the record. (Jameson v. Desta
(2018) 5 Cal.5th 594, 608–609.) We address his contention nevertheless
because HBG’s safety is paramount to all concerns of where her custody
should be adjudicated.
The record demonstrates that trial court gave serious consideration to
Beaver’s testimony that he believed HBG would be unsafe in Mexico because
he believed Garcia was still in contact with people involved in drug
smuggling. The court actively questioned Beaver in detail on this point. It
actively questioned Garcia as well and she denied having “any relationship
with any sort of cartel members or persons involved in illicit cross-border
20
activity currently in Tijuana,” or with the person who asked her to smuggle
jewelry. The court further considered expert testimony by the
District Attorney’s investigator about Mexican drug cartels, as well as
Garcia’s point that Garcia is of no use to the cartels because she cannot
legally cross the border.
After hearing the evidence, the trial court stated on the record that it
did not credit Beaver’s testimony that it would be dangerous for HBG to
return to Mexico because he had testified that he was willing to let HBG
travel there to spend summers with Garcia. And thus, the court ultimately
did not rule in favor of Beaver with respect to this affirmative defense. We
defer to the court’s well-supported credibility finding against Beaver on this
question. “It is not our role as a reviewing court to reweigh the evidence or to
assess witness credibility.” (Thompson v. Asimos (2016) 6 Cal.App.5th 970,
981.)
C. Conclusion
HBG’s habitual residence was in Mexico on June 17, 2025 when Beaver
failed to return her to Garcia in violation of their agreement and Garcia’s
custody rights. Beaver failed to demonstrate that the well-settled defense or
the grave-risk-of-harm defenses apply under the circumstances presented
here. Jurisdiction over HBG’s custody proceedings accordingly lies in Mexico,
not here where she was wrongfully retained in violation of the Hague
Convention.
The parties are encouraged to cooperate to (1) arrange for early
issuance of the remittitur, and (2) swiftly bring HBG to the United States
Consulate in Tijuana to process an application for a CRBA.
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DISPOSITION
Let a writ of mandate issue directing respondent Superior Court of
San Diego County to vacate its order denying Garcia’s petition and issue an
order granting the petition and directing Beaver to cooperate with the San
Diego District Attorney’s Child Abduction Unit to effectuate the return of
HBG to Garcia in Mexico. The return shall take place within 10 days of
issuance of the remittitur unless otherwise agreed by both parties in writing
and approved by the trial court. Costs and expenses are awarded to Garcia.
(Cal. Rules of Court, rule 8.493(a)(1)(A); 8 U.S.C. § 9007, subd. (b)(3).) This
opinion is final immediately as to this court. (Cal. Rules of Court, rule
8.490(b)(2)(A).) The remittitur shall issue on or after 60 days after the filing
date of this opinion unless the parties stipulate in writing to the earlier
issuance of the remittitur. (Cal. Rules of Court, rules 8.264(b)(1), 8.272(a),
(c)(1).)
DO, J.
WE CONCUR:
O’ROURKE, Acting P. J.
RUBIN, J.
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