Marriage of Gonzalez Morales

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
January 4, 2024

2024COA2

No. 22CA1867, Marriage of Gonzalez Morales — Family Law —
Uniform Child-custody Jurisdiction Enforcement Act —
Warrant to Take Physical Custody of Child — Convention on
the Civil Aspects of Child Abduction — Patria Potestas

This case requires a division of the court of appeals to address,

for the first time in Colorado, the doctrine of patria potestas and its

impact on a parent’s ability to seek the return of a child to their

habitual place of residence if the child was wrongly removed and

transported to another country. In addressing this issue, the

division sets forth the proper framework for determining whether a

parent has sufficient custodial rights to invoke the protections of

the Hague Convention on the Civil Aspects of International Child

Abduction. As relevant to the present dispute, because the parties’

divorce decree did not eliminate father’s patria potestas rights, the

division concludes that he retained sufficient rights of custody to
pursue an order in this jurisdiction — where the child is currently

present — for the return of his daughter to Mexico. Because the

trial court reached a contrary conclusion, the division reverses and

remands the case for further proceedings.
COLORADO COURT OF APPEALS 2024COA2

Court of Appeals No. 22CA1867
Garfield County District Court No. 21DR30071
Honorable Denise K. Lynch, Judge

In re the Marriage of

Juan Antonio Gonzalez Morales,

Appellant,

and

Abril Dubbe Meixueiro,

Appellee.

ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS

Division III
Opinion by JUDGE SCHUTZ
J. Jones and Johnson, JJ., concur

Announced January 4, 2024

The Harris Law Firm PLLP, Richard A. Harris, Katherine O. Ellis, Kady L. Tran,
Denver, Colorado, for Appellant

Defiance Law Firm, Peter A. Rachesky, Glenwood Springs, Colorado, for
Appellee
¶1 Juan Antonio Gonzalez Morales (father) appeals the district

court’s order granting the C.R.C.P. 41(b) motion of Abril Dubbe

Meixueiro (mother) seeking the dismissal of a proceeding initiated

by father under the provisions of the Convention on the Civil

Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No.

11,670 (Hague Abduction Convention), and its implementing

statutes, 22 U.S.C. §§ 9001-9011.

¶2 The parties’ dispute requires us to address, for the first time in

Colorado, the doctrine of patria potestas and its impact on a

parent’s ability to seek the return of a child to their habitual place

of residence if the child was wrongly removed and transported to

another country.

¶3 In addressing this issue, we set forth the proper framework for

determining whether a parent has sufficient custodial rights to

invoke the protections of the Hague Abduction Convention. As

relevant to the present dispute, because the parties’ divorce decree

did not eliminate father’s patria potestas rights, we conclude that he

retained sufficient rights of custody to pursue an order in this

jurisdiction — where the child is currently present — for the return

of his daughter to Mexico. Because the district court reached a

1
contrary conclusion, we reverse and remand the case for further

proceedings.

I. Background

¶4 The parties were married in Texas in 2014 and have one

daughter, who was born in 2015. Shortly after the child’s birth, the

parties relocated to Mexico, where they settled in the city and state

of Chihuahua. Father filed for divorce in September 2019. In

November 2020, the Family Court of the Morelos Judicial District,

Chihuahua, Mexico, entered a decree dissolving the marriage.

¶5 The decree memorialized the parties’ agreement regarding

their child. As relevant here, the decree provided that mother

would have custody of the child with father having regular

parenting time. Father’s parenting time included every other

weekend, two hours each Wednesday evening, half of the child’s

summer break, and shared holidays. In early 2021, father went to

mother’s home in Chihuahua for his scheduled parenting time and

discovered that mother and the child were missing.

¶6 Shortly thereafter, believing that mother had left the country

with the child, father applied to the Mexican authorities for the

return of the child under the Hague Abduction Convention. In

2
June 2021, after learning that the child was in Colorado, father

filed in the district court of Garfield County a petition for the

registration and expedited enforcement of a child-custody

determination pursuant to the Uniform Child-custody Jurisdiction

and Enforcement Act. See §§ 14-13-101 to -403, C.R.S. 2023.

Father also sought and obtained a warrant under section 14-13-

311, C.R.S. 2023, and the Hague Abduction Convention to take

immediate custody of the child and return her to Mexico.

¶7 In October 2022, 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 promptly set a hearing on father’s

request to return the child to Mexico pursuant to the Hague

Abduction Convention.

¶8 At the hearing, the parties presented competing Spanish to

English translations of the decree.1 After father presented his case,

mother moved for a directed verdict in her favor under C.R.C.P. 50,

contending that father had not proved that he possessed rights of

1 Although there are linguistic variations between the two

translations, the parties do not point to any substantive differences.

3
custody sufficient to entitle him to relief under the Hague Abduction

Convention. The court deferred ruling on the issue and instead

allowed mother to begin presenting her case opposing the return of

the child. The district court then set the case for an additional day

of testimony but also ordered the parties to submit written briefs on

mother’s motion for a directed verdict in the interim.

¶9 After reviewing the briefs, the court construed mother’s motion

for a directed verdict as a motion for entry of judgment under

C.R.C.P. 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 return of the

child under the Hague Abduction Convention.

II. Standards of Review Under C.R.C.P. 41(b)(1)

¶ 10 C.R.C.P. 41(b)(1) provides that, when an action is tried by the

court without a jury, after the moving party’s presentation of

evidence, “the defendant, without waiving his right to offer evidence

in the event the motion is not granted, may move for a dismissal on

the ground that upon the facts and the law the plaintiff has shown

no right to relief.” When ruling on a motion pursuant to C.R.C.P.

41(b)(1), the district court “must determine whether judgment in

4
favor of defendant is justified on the evidence presented.” Colo.

Coffee Bean, LLC v. Peaberry Coffee Inc., 251 P.3d 9, 25 (Colo. App.

2010) (quoting DSCO, Inc. v. Warren, 829 P.2d 438, 441 (Colo. App.

1991)). C.R.C.P. 41(b)(1) states that, when a court grants such a

motion, it must “make findings as provided in Rule 52.” See

C.R.C.P. 52 (titled “Findings by the Court”).

¶ 11 Our review of a judgment or order entered following a trial to

the court presents a mixed question of fact and law. State Farm

Mut. Auto. Ins. Co. v. Johnson, 2017 CO 68, ¶ 12. “We apply a

bifurcated standard to such questions, reviewing the evidentiary

factual findings for an abuse of discretion and the legal conclusions

de novo.” Id. Therefore, in reviewing the grant of a C.R.C.P.

41(b)(1) motion, we defer to the district court’s factual findings “[i]f

reasonable minds could differ over the inferences and conclusions

to be drawn from the evidence at the conclusion of a plaintiff’s

case.” Colo. Coffee Bean, 251 P.3d at 25.

III. The Hague Abduction Convention

¶ 12 The purpose of the Hague Abduction Convention is to

promptly return children who are wrongfully removed from their

place of habitual residence, unless one of the narrow exceptions to

5
return applies. See 22 U.S.C. § 9001(a)(4); In re Marriage of Jeffers,

992 P.2d 686, 690 (Colo. App. 1999). “The Convention is based on

the principle that the best interests of the child are well served

when decisions regarding custody rights are made in the country of

habitual residence.” Abbott v. Abbott, 560 U.S. 1, 20 (2010). Thus,

the Hague Abduction Convention should not be interpreted to

permit a parent to select the country to adjudicate parental

responsibilities by crossing a border. See id. at 21; see also March

v. Levine, 249 F.3d 462, 472 (6th Cir. 2001) (“The . . . Convention

. . . [was] specifically designed to discourage those who would

remove or retain children in the hopes of seeking a ‘home court

advantage’ . . . .”).

¶ 13 Under the Convention, the removal of a child is wrongful if

a. it is in breach of rights of custody attributed
to a person, . . . either jointly or alone, under
the law of the State in which the child was
habitually resident immediately before the
removal or retention; and

b. at the time of removal or retention those
rights were actually exercised, either jointly or
alone, or would have been so exercised but for
the removal or retention.

6
Hague Abduction Convention art. 3. If the petitioner establishes

these elements, the court “shall order the return of the child

forthwith,” id. at art. 12, unless the responding party can establish

one of the exceptions under Articles 12, 13 or 20. 22 U.S.C.

§ 9003(e)(2).

¶ 14 “No wrongful removal exists without the possession of

custodial rights by the parent seeking the child’s return.”

Lieberman v. Tabachnik, 625 F. Supp. 2d 1109, 1116 (D. Colo.

2008). “[R]ights of custody” are defined to “include rights relating to

the care of the person of the child and, in particular, the right to

determine the child’s place of residence.” Hague Abduction

Convention art. 5(a). However, rights of custody are distinct from

“rights of access,” which “include the right to take a child for a

limited period of time to a place other than the child’s habitual

residence.” Id. at art. 5(b). A petitioning party that only has rights

of access does not have a specific remedy for the return of a child

under the Hague Abduction Convention. Lieberman, 625 F. Supp.

2d at 1116-17.

¶ 15 In determining whether a parent has rights of custody, courts

look to the law of the child’s habitual residence. Hague Abduction

7
Convention art. 3(a); Abbott, 560 U.S. at 10 (“This Court consults

Chilean law to determine the content of [father’s] right, while

following the Convention’s text and structure to decide whether the

right at issue is a ‘righ[t] of custody.’”). Rights of custody sufficient

to allow a petitioner to seek the removal of a child under the Hague

Abduction Convention are quite broad. See Palencia v. Perez, 921

F.3d 1333, 1339 (11th Cir. 2019) (“The Convention’s intent is for

courts to ‘invoke[] in the widest possible sense’ the law of the child’s

habitual residence.” (quoting Elisa Pérez-Vera, Hague Conf. on Priv.

Int’l L., Explanatory Report on the 1980 Hague Convention on the

Civil Aspects of International Child Abduction ¶ 67 (1982)).

[T]he violation of a single custody right suffices
to make removal of a child wrongful. That is, a
parent need not have “custody” of the child to
be entitled to return of his child under the
Convention; rather, he need only have one
right of custody. Further, he need not have a
sole or even primary right of custody.

Furnes v. Reeves, 362 F.3d 702, 714-15 (11th Cir. 2004), abrogated

on other grounds by Lozano v. Montoya Alvarez, 572 U.S. 1 (2014);

see also Palencia, 921 F.3d at 1338 (“The term ‘rights of custody’

does not have a fixed definition, but it is not limited to physical

custody.”).

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IV. Discussion

¶ 16 Father contends that the district court wrongfully granted

mother’s C.R.C.P. 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 “rights of custody” as

defined by the Hague Abduction Convention. Specifically, father

argues that the district court erred by relying on Ibarra v.

Quintanilla Garcia, 476 F. Supp. 2d 630 (S.D. Tex. 2007), to hold

that the decree’s award of custody to mother eliminated all rights of

custody that father had under Mexican law, including rights under

the Mexican doctrine of patria potestas. We turn now to the

substance of father’s contention.

¶ 17 Parental rights in Mexico encompass more than one right of

custody. One of those rights is patria potestas, which “has its roots

in Roman law,” under which the doctrine “conveyed absolute and

despotic rights of a father over his children.” Saldivar v. Rodela,

879 F. Supp. 2d 610, 623 (W.D. Tex. 2012). The doctrine has been

significantly modified over time, and today patria potestas refers to

the reciprocal authority of mother and father (and sometimes

grandparents) to exercise parental authority that encompasses “the

9
comprehensive physical, mental, moral[,] and social protection of

the minor child.” Whallon v. Lynn, 230 F.3d 450, 457 (1st Cir.

2000); see Saldivar, 879 F. Supp. 2d at 624 (“[P]atria potesta[s]

constitutes the ‘most comprehensive’ right that a parent can

exercise over the person and property of his or her minor children.”

(quoting Stephen Zamora et al., Mexican Law 482 (2004))).

¶ 18 “In other words, patria potestas establishes the parent’s

bundle of rights over a minor child, one of which is formal custody,

but it also includes the right to care for the child and make

decisions about his or her life.” Gonzalez v. Preston, 107 F. Supp.

3d 1226, 1234 (M.D. Ala. 2015); cf. Whallon, 230 F.3d at 458

(“[P]atria potestas, like physical custody, plainly means something

‘independent’ from mere visitation rights.”).

¶ 19 The doctrine of patria potestas is codified in the Civil Code of

Chihuahua, which, according to the translation furnished to the

district court, provides that “[p]arental authority is exercised over

the person and property of the children” and that “[m]inor children

not emancipated, are under parental authority as long as there is

one of the ancestors who must exercise it according to law.” Código

Civil del Estado de Chihuahua, arts. 389, 390 (hereinafter Chih.

10
Civ. Code);2 see also Saldivar, 879 F. Supp. 2d at 624 (articles 388

to 402 of the Chihuahua Civil Code recognize patria potestad3 as “a

bundle of correlative rights over a minor child” that are “equally

shared by the mother and the father”); Gonzalez, 107 F. Supp. 3d at

1234.

¶ 20 Mother does not dispute that the rights encompassed by patria

potestas are sufficient rights of custody to allow a party to

prosecute an action for the return of a child under the Hague

Abduction Convention. See Whallon, 230 F.3d at 459 (holding that

patria potestas rights under Mexican law constituted rights of

custody under the Convention); Lieberman, 625 F. Supp. 2d at

1124 (concluding that “patria potestas rights are not mere access

2 The Chihuahua Civil Code was not introduced as an exhibit at the

hearing, but father provided a translated version of the relevant
portions as an attachment to his legal brief submitted in response
to mother’s motion for a directed verdict. The district court quoted
father’s translation in its order. Mother does not appear to object to
father’s inclusion of or reliance on the translated code, and both
parties reference the code provided by father in their appellate
briefs.
3 Though commonly referred to as patria potestas, the doctrine is

also sometimes referred to as patria potestad.

11
rights to the minor children” but also include the rights of custody

under the Convention).

¶ 21 Instead, citing article 393 of the Chihuahua Civil Code, which

provides that, “[i]n case of separation of those who exercise parental

authority, they may agree to the terms of their exercise,” mother

contends that the parties’ custody agreement, as incorporated into

the decree, supersedes father’s patria potestas rights. See Chih.

Civ. Code, art. 393. We disagree because nothing in the decree

specifically provides that father surrendered his patria potestas

rights.

¶ 22 Like the district court, we conclude that the minor differences

in the parties’ translations of the decree do not impact our analysis.

Using father’s translation, the fourth clause of the decree gave

“definitive custody” to mother; whereas under mother’s translation,

she received “full care and custody.” Either way, the decree placed

the child in the care of mother, with father receiving regular visits

under the fifth clause. See Patricia Begné, Parental Authority and

Child Custody in Mexico, 39 Fam. L.Q. 527, 534 (2005)

(“Consequently, although Mexican law refers to care and custody

12
(cuidado y custodia), it suffices to use the term custody on its own,

which means to ‘look after with care.’”).

¶ 23 Mother is correct that a custody agreement, in some

circumstances, may override the doctrine of patria potestas. See

Altamiranda Vale v. Avila, 538 F.3d 581, 587 (7th Cir. 2008)

(“[P]atria potestas is a default doctrine and hence does not override

rights conferred by a valid custody agreement between the

parents.”); Gonzalez, 107 F. Supp. 3d at 1234 (“In the case of

parental separation, the civil code provides that patria potestas

rights and obligations continue, though parents mutually may alter

these terms by agreement.”). But while the decree provides that

mother has primary physical custody of the child, it is silent as to

the parties’ exercise of parental authority or patria potestas over the

child, including the right to make decisions for the child and to

provide the “physical, mental, moral[,] and social protection” of the

child. Whallon, 230 F.3d at 457; Gonzalez, 107 F. Supp. 3d at

1234.

¶ 24 The decree’s silence leaves us to resolve the difficult question

of whether, as mother contends, the decree extinguished father’s

patria potestas rights. In many cases involving foreign divorce

13
decrees or custody agreements, the unambiguous text of the decree

or agreement provides the reviewing court with a clear answer. See

Lieberman, 625 F. Supp. 2d at 1117 (where the parties’ agreement

in the decree provided that “[b]oth parties shall have the paternal

authority of their minor children,” father maintained patria potestas

rights even though mother had custody of the children); Gatica v.

Martinez, No. 10-21750-CIV, 2010 WL 6744790, at *2-3 (S.D. Fla.

Oct. 13, 2010) (unpublished report and recommendation) (decree

did not extinguish father’s patria potestas rights despite mother

having custody because the decree provided that “[b]oth parties

agree to retain parental authority”), adopted, 2011 WL 2110291

(S.D. Fla. May 25, 2011) (unpublished order); cf. Takeshi Ogawa v.

Kyong Kang, 946 F.3d 1176, 1178, 1180 (10th Cir. 2020) (father

lacked rights of custody because the decree explicitly awarded only

mother parental authority, which, under Japanese law, included

the right to determine the child’s place of residence).

¶ 25 Here, the decree’s silence on the issue of and the existence of

default patria potestas rights under the law of Chihuahua leads us

to conclude that father did not surrender such rights. Therefore,

we hold that father maintained rights of custody sufficient to

14
pursue an action for the return of the child under the Hague

Abduction Convention.

¶ 26 Our decision is informed by Garcia v. Pinelo, 125 F. Supp. 3d

794, 799 (N.D. Ill.), aff’d, 808 F.3d 1158 (7th Cir. 2015). In Garcia,

as in this case, the parties’ custody agreement, which was adopted

as an order of the Mexican court, did not expressly address patria

potestas or parental authority. See id. at 806. And, as here, the

agreement in Garcia awarded the mother custody and established a

fixed parenting time schedule for the father. Id. Likewise, when the

father in Garcia petitioned in a United States court for the return of

the child under the Hague Abduction Convention, the mother

asserted that he lacked sufficient rights of custody because the

agreement and resulting custody order extinguished his patria

potestas rights. Id. at 805.

¶ 27 In rejecting the mother’s contentions, the court in Garcia

examined the civil code of the state of Nuevo León, Mexico, which —

like Chihuahua’s civil code — affords both parents patria potestas

rights by default. See id.; Chih. Civ. Code, art. 394. The Garcia

court acknowledged that patria potestas rights may be superseded

by rights delineated in a valid custody agreement. See 125 F. Supp.

15
3d at 805 (citing Altamiranda, 538 F.3d at 587). But Garcia

reasoned that the father retained his patria potestas rights because

the custody agreement was silent on the issue, nothing in the

Nuevo León civil code provided that patria potestas rights were

automatically terminated in a custody agreement, and the Mexican

court that adopted the parties’ custody agreement did not explicitly

reject father’s patria potestas rights. Id. at 807.

¶ 28 As in Garcia, we look to the local civil code, which provides

that “[o]nly by court order may [a parent] . . . lose the right to

coexistence . . . as well as in cases of suspension or loss of parental

authority.” Chih. Civ. Code, art. 394. As previously noted, there is

no express or implied provision in the decree that suspends father’s

parental authority. Mother argues that article 393 of the

Chihuahua Civil Code allowed the parties to agree on the terms of

their custody arrangement in the decree. See Chih. Civ. Code, art.

393. That is true, as far as it goes. But nothing in the decree

suggests that the parties, in fact, reached an agreement contrary to

the default position that father retains patria potestas rights.

¶ 29 Mother tries to distinguish Garcia based on that court’s

finding that the parties had “no settled mutual intent” for the child

16
to leave Mexico. See Garcia, 125 F. Supp. 3d at 802. But mother

has failed to explain how this finding was relevant to Garcia’s

holding that the father maintained his patria potestas rights, or how

it is relevant to the present dispute.

¶ 30 Mother also directs our attention to Gonzalez v. Gutierrez, 311

F.3d 942 (9th Cir. 2002), abrogated by Abbott, 560 U.S. 1. But all

that case holds (besides the since-overruled holding that the

doctrine of ne exeat4 does not by itself create a right of custody, see

Abbott, 560 U.S. at 10) is that patria potestas is a default doctrine

and hence does not override those rights actually addressed by a

valid custody agreement between the parents. Gonzalez, 311 F.3d

at 954. Indeed, Gonzalez is supportive of father’s position because,

as we mentioned previously, we must defer to the Chihuahua Civil

Code because the parties’ decree failed to address patria potestas.

Gonzalez did not need to reach the issue we do because the

doctrine of patria potestas cannot supplant the express provisions

4 Ne exeat refers to an “equitable writ restraining a person from

leaving, or removing a child or property from, the jurisdiction.”
Lieberman v. Tabachnik, 625 F. Supp. 2d 1109, 1120 (D. Colo.
2008) (quoting Black’s Law Dictionary 1060 (8th ed. 2004)).

17
of a custody agreement. See id.; see also Hague Abduction

Convention art. 3(a) (requiring courts to look to the law of the

child’s habitual residence). Thus, we do not find Gonzalez to be

instructive.

¶ 31 We likewise reject mother’s and the district court’s reliance on

Ibarra, 476 F. Supp. 2d at 633-34. In Ibarra, even though the

decree at issue expressly preserved the father’s “parental authority”

over the child, the court concluded that his patria potestas rights

had been extinguished. Id. In reaching this conclusion, the court

leaned heavily on the testimony of the father, who was a Mexican

attorney, that the “right of custody that I had with the minor, I left

that to the mother.” Id. at 635. Father made no similar concession.

¶ 32 To the extent that mother suggests that the district court did

not err because the decree extinguished father’s rights of custody

by allowing her to remove the child from the country, we disagree.

Nothing in the text of the decree allows mother to permanently

relocate from Mexico, and the sixth clause of the decree, cited by

mother, only references “temporary travel” and requires the

travelling party to provide “dates for the planned travel to the other

parent.”

18
¶ 33 Moreover, the sixth clause grants both parents the right of

temporary travel with the child — including trips out of the country

— on one week’s prior notice to the other. In addition, the decree

required the parents to surrender the child’s passport to the court

for a period of six months. These reciprocal grants of travel rights,

together with the associated notice requirements and the temporary

surrender of the child’s passport, are inconsistent with mother’s

claim that she possessed the unfettered right to permanently move

the child to another country two months after the dissolution of

marriage became final.

¶ 34 Moreover, other cases interpreting the civil code of Chihuahua

have concluded that, within the codified doctrine of patria potestas

is a right to determine a child’s place of residence. See Saldivar,

879 F. Supp. 2d at 625 (quoting article 398 of the Chihuahua Civil

Code, which provides that “[t]he abduction or retention of the minor

away from his habitual residence, without the permission of those

who are exercising patria potesta[s] or [who] have custody, will give

rise to the right of procedure of restitution established in the Code

of Civil Procedure,” and discussing how this provision was

specifically amended in response to Mexico’s adoption of the Hague

19
Abduction Convention); Gonzalez, 107 F. Supp. 3d at 1234 (“Patria

potestas also confers the right to live with the child and determine

the child’s location.”).

¶ 35 In sum, we conclude that because father had sufficient rights

of custody under the doctrine of patria potestas to maintain a

wrongful removal action under the Hague Abduction Convention,

the district court erred by granting mother’s C.R.C.P. 41(b) motion.

We accordingly reverse the district court’s order granting that

motion and remand the case for further proceedings consistent with

C.R.C.P. 41(b)(1), which provides that a denial of a motion under

that rule does not constitute a waiver of a defendant’s “right to offer

evidence in the event the motion is not granted.”

V. Wrongful Retention Under the Hague Abduction Convention

¶ 36 Because we conclude that the district court erred by holding

that father did not have sufficient rights of custody to maintain a

wrongful removal proceeding under the Hague Abduction

Convention, we decline to address father’s alternative contention

that the district court failed to consider the wrongful retention of

the child under the Convention.

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VI. Disposition

¶ 37 The district court’s order is reversed, and the case is

remanded for further proceedings, including the completion of

mother’s presentation of her case in opposition to father’s request to

return the child to Mexico, and issuance of an order that includes

conclusions of law consistent with this opinion.

JUDGE J. JONES and JUDGE JOHNSON concur.

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