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Huntington Beach girl can stay in U.S. during custody dispute

March 19, 2009|Carol J. Williams

A Mexican girl residing illegally with her mother in Huntington Beach has the right to stay here while her father wages a custody battle from abroad because she is "settled" in her new country despite her lack of legal status, a federal appeals court ruled Wednesday.

The decision overturned a District Court judgment that would have sent the 11-year-old to live with her father in Acapulco. It was the first to address whether a child should be allowed to remain in the United States during an international custody dispute, to prevent further "distress."

The ruling by a panel of the U.S. 9th Circuit Court of Appeals appeared to be a new interpretation of the Hague Conventions on the protection of children in cross-border disputes, establishing that a right of stability be considered, along with each parent's compliance with the law.

Ivan Nemecio Salmeron brought the action under the international conventions protecting abducted children. Salmeron alleged that the girl's mother, Geremias Brito, had kept their daughter in Orange County years beyond the few months' visit to which he had agreed in 2002.

Although Brito has lived most of her life in the United States and Salmeron spent eight years here before being deported for three criminal infractions, neither parent has legal U.S. residency. Their daughter was born in 1996 in Acapulco, after Salmeron's deportation.

Alleging domestic violence and infidelity, Brito left Salmeron and took her daughter back to Orange County in 2001. The child spent the summer of 2002 with her father in Mexico, but later remained in the U.S. during the five-plus years when Salmeron petitioned U.S. and Mexican authorities to intervene.

A U.S. District Court in Santa Ana ruled to repatriate the child in late 2007, and Brito appealed.

In reversing the decision, the 9th Circuit panel pointed to the Hague Convention provision opposing a child's repatriation if "a forced return might only serve to cause him or her further distress and accentuate the harm caused by the wrongful relocation."

Writing for the unanimous panel, Circuit Judge Stephen Reinhardt, an appointee of President Carter, observed that "It is never an easy nor a joyous task to resolve a dispute between parents that may determine the custody of their child, nor is the outcome ever fully satisfactory."

The judges, including appointees of Presidents Reagan and Clinton, noted the girl's good grades, bilingual skills, friendships and after-school activities such as serving as captain of her soccer team as evidence that she was settled despite her lack of legal status.

"I think it is a good precedent," Brito's pro bono attorney, Mark T. Cramer, said of the decision focusing on the best interests of the child.

"One of the things about this case that is key and important is that the mere fact that a child is not a legal immigrant in itself . . . [shouldn't] prevent the finding that the child is now settled."

Ira Mehlman, national media director for the Federation for American Immigration Reform, said it was his organization's view that "they should all be sent back to Mexico and let the Mexican authorities sort it out."

"The fact that someone brings a child to this country doesn't entitle that child to stay automatically, and whatever harm comes to the child occurs because the parents knowingly violated the law," Mehlman said.

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carol.williams@latimes.com

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