In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐1609
JADED MAHELET RUVALCABA MARTINEZ,
Petitioner‐Appellant,
v.
PETER VALDEZ CAHUE,
Respondent‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 15 C 11411 — John J. Tharp, Jr., Judge.
____________________
ARGUED JUNE 1, 2016 — DECIDED JUNE 24, 2016
____________________
Before WOOD, Chief Judge, and BAUER and FLAUM, Circuit
Judges.
WOOD, Chief Judge. For the first seven years of A.M.’s life,
he lived in Illinois with his mother, Jaded Mahelet Ruvalcaba
Martinez. A.M.’s father, Peter Valdez Cahue, lived nearby, alt‐
hough he and Martinez never married. They entered into a
private arrangement, never formalized through a court order,
for custody and visitation rights. The events leading to the
lawsuit before us arose when, in 2013, Martinez moved to
2 No. 16‐1609
Mexico and took A.M. with her. About a year later, Cahue per‐
suaded Martinez to send A.M. to Illinois for a visit; he then
refused to return A.M. to Mexico. Martinez petitioned for his
return under the Hague Convention on Civil Aspects of Inter‐
national Child Abduction (“the Convention”), T.I.A.S. No.
11670, 1343 U.N.T.S. 89 (Oct. 25, 1980), to which both the
United States and Mexico are parties. The Convention has
been implemented in the United States through the Interna‐
tional Child Abduction Remedies Act, 22 U.S.C. §§ 9001 et seq.
Relying heavily on its finding that Martinez and Cahue
did not share the view that A.M.’s habitual residence (a term
of art under the Convention) would be shifted to Mexico, the
district court found that Illinois remained A.M.’s habitual res‐
idence and dismissed Martinez’s petition. We conclude that
the district court asked the wrong question, and thus came to
the wrong answer. At all relevant times, Martinez had sole
custody of A.M. under Illinois law, while Cahue had no right
of custody either under Illinois law or the Convention. That
means that only Martinez’s intent mattered, and it is plain that
Martinez wanted A.M.’s habitual residence transferred to
Mexico. Cahue’s retention of A.M. in Illinois was therefore
wrongful and he must be returned to Mexico.
I
A.M. was born in 2006 in the Chicago suburb of Oak Lawn,
Illinois. Although Cahue voluntarily acknowledged his pater‐
nity at A.M.’s birth, A.M. lived with Martinez for his entire life
until Cahue retained him in Illinois in 2014. With minor ex‐
ceptions, Martinez and Cahue lived separately for most of
their ten‐year on‐again, off‐again relationship. They appear to
have cooperated relatively well, however, with respect to
A.M. On February 24, 2010, Martinez and Cahue entered into
No. 16‐1609 3
a private written custody agreement in which Cahue stipu‐
lated that he would “NOT fight custody in court for [A.M.],”
but would be guaranteed “constant access” and overnight vis‐
its “2 nights a week.” Neither parent ever took steps to me‐
morialize this arrangement in a court order.
In the spring of 2013 Martinez, a Mexican citizen who
worked at the Mexican Consulate in Chicago, began contem‐
plating a move back to Mexico. She asserts that “everyone,”
including Cahue, knew that she was moving. He denies that
he knew that she was planning to relocate permanently to Mex‐
ico or that she was planning to change A.M.’s domicile. In‐
stead, Cahue says, Martinez told him that she and A.M. were
going to Mexico on vacation. The district court believed Ca‐
hue’s version of events and found that Martinez did not tell
Cahue that she was taking A.M. to live in Mexico. Martinez
has not challenged that factual finding on appeal, and so we
accept it.
On July 26, 2013, Cahue signed a notarized letter author‐
izing A.M. to travel to Mexico. After two weeks, he began call‐
ing Martinez and asking when she planned to return. On Au‐
gust 7, he sent her $300 for gas, because (he says) Martinez
had told him that she might drive back to Chicago. Then Mar‐
tinez stopped communicating with Cahue altogether. Cahue
contacted Martinez’s mother, sister, and father, but learned
nothing; he also spoke with the Oak Lawn police, who told
him that there was nothing they could do.
In the meantime, Martinez and A.M. settled into their new
life in Mexico. Martinez began work, and A.M. enrolled in a
highly regarded private school in Aguascalientes. After a
brief period of adjustment, A.M. excelled in the new school.
He played soccer (fútbol) on several elite teams, and he
4 No. 16‐1609
earned a scholarship. He had friends at school and on his
sports teams, spoke Spanish fluently, attended church regu‐
larly, and spent time with his extended family in Mexico.
But from Cahue’s point of view, matters were not settled.
That fall, he consulted an attorney, who informed him of his
rights under the Convention. The attorney began preparing
documents for a petition Cahue could file under the Conven‐
tion, but he had to withdraw after discovering what he con‐
sidered a conflict of interest. Cahue did not seek alternate rep‐
resentation, nor did he file the petition pro se.
Meanwhile, Martinez pursued legal action in Mexico. On
October 16, 2013, she filed a petition against Cahue for child
support and an order of protection. Martinez testified that she
told Cahue about the petition, but she never served it on him.
Instead, she and Cahue agreed to a visitation plan and she
dropped the petition before the Mexican court ruled on it. Ac‐
cording to the plan, Cahue and A.M. would see each other in
December 2013, April 2014, and July 2014, during A.M.’s
school vacations. The December visit did not take place, but
Martinez and Cahue made plans for A.M. to visit Cahue in
April 2014 as contemplated.
In December 2013, Cahue began communicating with the
U.S. Department of State. A person on the Mexican desk,
Rosemarie Skelly Mendoza, explained his rights under the
Convention and sent him a blank petition for relief. Cahue
never filed it, but he did keep in touch with the State Depart‐
ment by email. As planned, A.M. visited his father during the
April 2014 spring break, from April 26 through May 4, and at
the end of the visit, Cahue sent him back to Mexico. Cahue
testified that he thought about keeping A.M. at that time, but
he did not because Martinez had already agreed to allow
No. 16‐1609 5
A.M. to visit Cahue that summer, and he did not want to dis‐
rupt A.M.’s school year.
In July, Martinez again sent A.M. to Chicago as agreed,
thinking that he would stay there for another short visit and
be back in time to start school on August 18, 2014. At first,
Cahue bought only a one‐way air ticket, but Martinez called
his bluff: she refused to allow A.M. to travel without a return
ticket. Cahue appeared to capitulate and bought the round‐
trip ticket. But Martinez’s suspicions were well founded. As
Cahue later admitted, he had no intention of sending A.M.
back to Mexico.
Martinez learned this on August 16, 2014, when she went
to the airport to pick up A.M. and he never arrived. When
Martinez contacted Cahue, he told her that he had forgotten
about the flight, and then he stopped answering her calls. On
August 21, he contacted the State Department and asked it to
put A.M.’s passport “on hold” so that A.M. could not leave
the United States.
Martinez flew to Illinois on August 25, 2014, meaning to
reclaim her son. She arrived at Cahue’s home that day, sur‐
prising him; with A.M. in tow, she decamped to her parents’
home in Illinois. Two days later, Cahue filed a petition for cus‐
tody in Illinois court, along with an emergency motion for im‐
mediate possession of A.M. and preliminary and permanent
injunctions barring Martinez from removing A.M. from Illi‐
nois. The state court granted his emergency motion, after
which Cahue sent the police to Martinez’s parents’ home, the
police seized A.M., and they returned him to Cahue. Martinez
promptly obtained counsel, filed an answer to Cahue’s peti‐
tion for custody, and attended a hearing in Illinois court on
September 17, 2014. The court continued Cahue’s temporary
6 No. 16‐1609
possession of the boy and ordered the surrender of A.M.’s U.S.
and Mexican passports.
After those developments, Martinez returned to Mexico,
where she resumed her legal fight. On February 6, 2015, she
filed her petition under the Convention with the Mexican
Central Authority. The U.S. State Department received the pe‐
tition on March 13, 2015. Then on December 15, 2015, after she
discovered that Cahue had obtained a new U.S. passport for
A.M., Martinez commenced emergency proceedings in the
district court and filed her verified petition in the Northern
District of Illinois for A.M.’s return to Mexico.
The district court held an evidentiary hearing, after which
it determined that there was sufficient evidence that A.M. had
acclimatized to Mexico during the year he lived there with his
mother. It also found, however, that Cahue and Martinez did
not jointly intend that A.M. should move to Mexico in the first
place. To the contrary, it said, Martinez took A.M. to Mexico
without Cahue’s permission or knowledge (presumably
about the permanence of the move—Cahue admitted that he
knew about the trip). Emphasizing the absence of shared pa‐
rental intent, the district court held that Illinois had remained
A.M.’s habitual residence during the year he spent in Mexico,
and thus Martinez’s petition had to be dismissed. Martinez
appeals from that judgment.
II
The Convention represents an international effort to deal
with the vexing problem of child custody when more than one
country is involved. It is fundamentally “an anti‐abduction
treaty.” Garcia v. Pinelo, 808 F.3d 1158, 1162 (7th Cir. 2015)
(quoting Redmond v. Redmond, 724 F.3d 729, 742 (7th Cir.
No. 16‐1609 7
2013)). Its dual purposes are “to secure the prompt return of
children wrongfully removed to or retained in any Contract‐
ing State,” and “to ensure that rights of custody and of access
under the law of one Contracting State are effectively re‐
spected in the other Contracting States.” Id. (quoting Conven‐
tion art. 1, T.I.A.S. No. 11670). To fulfill the latter purpose, it
seeks “to deter parents from absconding with their children
and crossing international borders in the hopes of obtaining a
favorable custody determination in a friendlier jurisdiction.”
Id. (quoting Walker v. Walker, 701 F.3d 1110, 1116 (7th Cir.
2012)). The Convention is based on the principle “that a child’s
country of habitual residence is ‘best placed to decide upon
questions of custody and access.’” Id. (quoting Whallon v.
Lynn, 230 F.3d 450, 456 (1st Cir. 2000)).
Key among the Convention’s provisions is its “remedy of
return,” which “entitles a person whose child has wrongfully
been retained in the United States in violation of the Conven‐
tion to petition for return of the child to the child’s country of
‘habitual residence.’” Id. (citations and quotation marks omit‐
ted). A removal or retention is wrongful under the Conven‐
tion where it is “in breach of rights of custody … under the
law of the state in which the child was habitually resident im‐
mediately before the removal or retention,” and “at the time
of removal or retention those rights were exercised … or
would have been so exercised but for the removal or reten‐
tion. Convention art. 3, T.I.A.S. No. 11670.
The pivotal question under the Convention is generally
that of habitual residence. Redmond, 724 F.3d at 742. “In prac‐
tical terms, the Convention may be invoked only where the
child was habitually resident in a Contracting State and taken
8 No. 16‐1609
to or retained in another Contracting State.” Id. at 737 (quot‐
ing U.S. Dep’t of State, Hague International Child Abduction
Convention; Text and Legal Analysis, 51 Fed. Reg. 10,494,
10,504 (Mar. 26, 1986)).
The district court recognized this. We review its findings
of fact for clear error, and its conclusions of law (including the
legal framework it adopts) de novo. The determination of ha‐
bitual residence is a “mixed” question of law and fact, see Red‐
mond, 724 F.3d at 743 (quoting Koch v. Koch, 450 F.3d 703, 710
(7th Cir. 2006)), to which we have given de novo review. See id.
at 742. We have done so because this question is antecedent to
many other issues under the Convention, and it is often de‐
terminative: if a child is currently located in her habitual resi‐
dence, her presence in the country (whether by removal or re‐
tention) is not wrongful. Id. at 737. In order to assure both the
national and the international uniformity that the Convention
was designed to achieve, de novo review is essential. Cf. Or‐
nelas v. United States, 517 U.S. 690, 697 (1996) (requiring inde‐
pendent appellate review of determinations of reasonable
suspicion or probable cause, because they “acquire content
only through application” and “[i]ndependent review is …
necessary if appellate courts are to maintain control of, and to
clarify, the legal principles”). To the extent that “habitual res‐
idence” turns on findings of historical fact, such as the inten‐
tions of the parties or the child’s adjustment to a new environ‐
ment, our review is deferential.
A
The Convention does not define “habitual residence,” but
we have understood the inquiry to be a “practical, flexible,
factual” one that “accounts for all available relevant evidence
and considers the individual circumstances of each case.”
No. 16‐1609 9
Redmond, 724 F.3d at 732 (quoting Mozes v. Mozes, 239 F.3d
1067, 1071 (9th Cir. 2001). As the term suggests, the search is
for the place where the child has made his or her home; it
identifies the country whose courts should be entrusted with
determinations such as custody and support. Generally “[a]
court should infer a change in habitual residence only where
[it] ‘can say with confidence that the child’s relative attach‐
ments to the two countries have changed to the point where
requiring return to the original forum would now be tanta‐
mount to taking the child out of the family and social envi‐
ronment in which its life has developed.’” Id. at 745 (quoting
Mozes, 239 F.3d at 1081).
The two most important factors in the analysis are paren‐
tal intent and the child’s acclimatization to the proposed home
jurisdiction. Id. at 744–45. Courts have differed on the weight
each factor should receive. We have tended to privilege the
parents’ perspective, id., but even so, we have stressed that
this emphasis is dependent on the circumstances. Id. at 746.
We also have noted that “[t]he intention or purpose which has
to be taken into account is that of the person or persons entitled
to fix the place of the child’s residence.” Id. at 747 (quoting
Mozes, 239 F.3d at 1076). Importantly, shared intent “has less
salience when only one parent has the legal right” to deter‐
mine residence. Id.
1
We consider first the question whether Martinez’s initial
removal of A.M. to Mexico in July 2013 was subject to any le‐
gal restrictions that might allow Cahue’s intent to affect the
analysis. Martinez argues that, as the parent with sole custody
of A.M., she had the exclusive right to establish his habitual
residence. This is not quite accurate. In Illinois, a custodial
10 No. 16‐1609
parent’s discretion to remove a child from the state is not com‐
pletely unrestrained. In the absence of a custody order, she is
not required to seek the court’s permission to relocate outside
of Illinois. See In re Parentage of R.B.P., 915 N.E. 2d 434, 439 (Ill.
App. Ct. 2009) (holding that where there is no custody order,
a mother need not seek permission under 750 ILCS 5/609
(2013) to leave the state). Nevertheless, a custodial parent may
be enjoined “upon application by any party” from relocating
with a child outside of Illinois “pending the adjudication of
the issues of custody and visitation.” 750 ILCS 45/13.5(a)
(2013). The latter section applies only in an “action brought
under [the Illinois Parentage Act of 1984] for the initial deter‐
mination of custody or visitation of a child or for modification
of a prior custody or visitation order.” A party may obtain an
injunction under section 13.5 even if the parentage action
commences after the custodial parent has left the state.
Hedrich v. Mack, 27 N.E.3d 666, 670 (Ill. App. Ct. 2015). At the
conclusion of the proceeding, even if the resulting court order
grants her sole custody, the custodial parent must show that
moving “is in the best interests of [the] child.” 750 ILCS
5/609(a) (2013); see also Fisher v. Waldrop, 849 N.E.2d 334 (Ill.
2006) (section 609(a) applies where there is a custody order in
place).
But Cahue never obtained rights of custody for Conven‐
tion purposes under these statutes, nor was Martinez’s right
to relocate A.M. constrained by them. In the absence of a court
order, Illinois law presumes that the mother of a child born
out of wedlock has sole custody. See 720 ILCS 5/10–5(a)(3)
(2013) (for purposes of statute on child abduction it is “pre‐
sumed that, when the parties have never been married to each
other, the mother had legal custody of the child unless a valid
court order states otherwise”); 750 ILCS 45/14(a)(2) (2013)
No. 16‐1609 11
(presuming mother had legal custody even where there has
been a judgment of paternity if no order grants custody to the
father, unless he has had physical custody for at least six
months prior to the date when the mother seeks to enforce her
custodial rights); see also In re Arthur H., 819 N.E.2d 734, 756‐
57 (Ill. 2004) (Garman, J., dissenting). Joint custody does not
arise automatically; a court must award it. See 750 ILCS
5/602.1(b) (2013). Moreover, joint custody is not the default
option: a court may confer joint custody only “if it determines
that joint custody would be in the best interests of the child.”
Id. § 602.1(c).
Cahue did not obtain a custody order during the time that
mattered. His agreement with Martinez provided him only
with agreed visitation rights—that is, a right of access that
does not trigger the remedy of return under the Convention.
See Abbott v. Abbott, 560 U.S. 1, 13 (2010). And even if that
agreement had spoken to custody, it would not have legal ef‐
fect: Illinois courts generally do not respect private agree‐
ments affecting custody. See In re Marriage of Linta, 18 N.E.3d
566, 570 (Ill. App. Ct. 2014) (noting that “the law severely lim‐
its on public‐policy grounds the enforceability of contracts af‐
fecting the custody … of children” and “per se rejects premar‐
ital agreements that … specify custody”). In July 2013, there‐
fore, Cahue had no custody rights under Illinois law.
Neither did Illinois accord him the lesser right of ne exeat,
which is a joint right to determine a child’s country of resi‐
dence. See Abbott, 560 U.S. at 10 (holding ne exeat to be right
of custody under the Convention). While section 13.5(a) pro‐
vides a mechanism to enjoin temporarily the removal from, or
compel the return of a child to, the state of Illinois, it is not a
right to veto the relocation. It merely requires that the removal
12 No. 16‐1609
be subjected to the scrutiny of a court. The court then deter‐
mines whether relocation should be enjoined pending the ad‐
judication of the custody question, considering the peti‐
tioner’s previous involvement with the child, the likelihood of
parentage, and the impact on the person being enjoined. 750
ILCS 45/13.5(a) (2013). The injunction lasts only until the ad‐
judication of custody or visitation is completed. After that, the
custodial parent may remove the child if a court finds that it
“is in the best interests of [the] child.” 750 ILCS 5/609(a)
(2013). The noncustodial parent has no right to determine the
child’s location; he or she has only the right to ask a court to
supervise. These laws show that Cahue never took the proper
steps to secure the rights on which he is trying to rely. There
was no existing custody order or even a pending custody pro‐
ceeding relating to A.M. in July 2013. As a result, neither sec‐
tion 13.5(a) nor section 609(a) could have restrained Martinez
from moving to Mexico with A.M.
Cahue asserts that because he and Martinez executed a
Voluntary Acknowledgement of Paternity at A.M.’s birth, and
because 750 ILCS 46/305(a) (2016) “confers upon the acknowl‐
edged father all of the rights and duties of a parent,” he has
rights of custody as a matter of law. There are two problems
with this theory. First, section 305(a) was not enacted until
2016. Second, even a judgment of paternity does not in itself
confer any rights of custody or visitation. See In re Parentage
of J.W., 990 N.E.2d 698, 706 (Ill. 2013) (“[A] judgment of pater‐
nity does not automatically entitle a biological father to visit‐
ation.”); J.S.A. v. M.H., 863 N.E.2d 236, 253 (Ill. 2007) (noting
that “the right of a biological father to establish paternity to a
child born to a marriage does not also mean that the legal
No. 16‐1609 13
rights flowing from the parent and child relationship,” in‐
cluding custody, “are automatically conferred”).
Cahue’s argument to the contrary finds no support in Illi‐
nois law. Nor are we persuaded by his criticism of our reliance
on Redmond. It is true, as he points out, that unlike the father
in Redmond, whom Irish law did not recognize as a parent,
Cahue is A.M.’s acknowledged father. We accept that for some
purposes this has legal consequences. But the Convention in‐
sists on a particular right—the right of custody—and Cahue
lacked that both when Martinez moved to Mexico in July 2013
and when Cahue refused to return A.M. to his mother in Au‐
gust 2014. Neither did Illinois law restrict Martinez’s move‐
ment of A.M. at either time. At both times that mattered, Ca‐
hue had no legal right to decide A.M.’s residence, and Mar‐
tinez had an unrestricted right to do so.
When Martinez moved to Mexico with A.M., she may
have violated the terms of the couple’s private custody agree‐
ment. But the move did not violate a right of custody for Con‐
vention purposes. Martinez’s removal of A.M. to Mexico was
therefore not wrongful. See Redmond, 724 F.3d at 738–39; White
v. White, 718 F.3d 300, 304‐06 (4th Cir. 2013). Nor did it violate
Illinois law. Because only Martinez has rights of custody un‐
der the Convention, and Illinois law did not in any way re‐
strict her right to move away from the country with her son,
only her intent was of legal significance.
2
The second key consideration in determining habitual res‐
idence is the extent to which the child has acclimatized to one
or the other place. The district court found that by August
2014, A.M. had acclimatized to Mexico. While A.M. had spent
14 No. 16‐1609
most of his life in Illinois, that fact is not dispositive. (That
would create the kind of formulaic, ratio‐based test that ap‐
pears nowhere in the Convention.) By the end of his first year
in Mexico, he displayed all of the indicia of habitual residence,
including friends, extended family, success in school, and par‐
ticipating in community and religious activities. The district
court found that A.M. had adapted successfully to Mexico,
and that finding is not clearly erroneous. Based on Martinez’s
intent that he change habitual residence, the lack of any right
on Cahue’s part to veto her preference, and A.M.’s own suc‐
cessful acclimatization, we conclude that Mexico was A.M’s
habitual residence at the time Cahue acted to retain him in the
United States.
B
Because the district court found that A.M.’s habitual resi‐
dence was Illinois, it had no reason to evaluate the wrongful‐
ness of Cahue’s 2014 retention of A.M., or any possible de‐
fenses that Cahue might have raised. Although it will some‐
times be desirable to remand to the district court for it to con‐
sider wrongfulness and possible defenses in the first instance,
that will depend on how well the record is developed,
whether the parties have had an opportunity to brief the is‐
sues, and how time‐sensitive the case is. In this instance, those
considerations persuade us to take up these issues now, with‐
out a remand.
1
As we noted earlier, a removal or retention is wrongful un‐
der the Convention if it is “in breach of rights of custody …
under the law of the state in which the child was habitually
resident immediately before the removal or retention”; and
No. 16‐1609 15
“at the time of removal or retention those rights were exer‐
cised … or would have been so exercised but for the removal
or retention.” Convention art. 3, T.I.A.S. No. 11670.
Cahue admits that he retained A.M. in Illinois without
Martinez’s consent. In doing so, he violated her rights of cus‐
tody under Mexican law. See Civil Code for the State of
Aguascalientes, arts. 434, 437, 440–41; Garcia, 808 F.3d at 1164
(noting that the right called patria potestas is “a ‘right of cus‐
tody’ under the Convention” that is conferred to both parents,
and whose “central values” are “fairness and reciprocity”).
Martinez regularly sought contact with A.M. from the time
Cahue retained him forward. See Walker, 701 F.3d at 1121 (not‐
ing that “any sort of regular contact” with the child qualifies
as “exercising … custody rights” under the Convention). Ca‐
hue’s retention of A.M. was wrongful under the Convention.
2
Because Cahue’s retention of A.M. in July 2014 was wrong‐
ful, A.M. must be returned to Martinez unless Cahue can
show that either of the two defenses he presented applies: that
A.M. is now so “settled in [his] new environment” that he
should not be returned, see Convention art. 12, T.I.A.S. No.
11670, or that Martinez “subsequently acquiesced in the … re‐
tention,” see id. art. 13(a). It is important, in evaluating these
defenses, to bear in mind that even if the facts provide some
support for a defense, “a court still has discretion to order the
return of a child if it would further the aim of the Conven‐
tion[,] which is to provide for the return of a wrongfully re‐
moved child.” Garcia, 808 F.3d at 1167 (quoting de Silva v. Pitts,
481 F.3d 1279, 1285 (10th Cir. 2007)). The Convention achieves
its aims both by returning children in individual cases and by
deterring future abductions or wrongful retentions. Id. at
16 No. 16‐1609
1168–69. “The Convention’s ‘defenses … are narrowly con‐
strued’ at least in part to preserve that deterrence.” Id. at 1169
(quoting de Silva, 481 F.3d at 1285). Where applying a defense
would undermine the deterrent effect of the Convention’s sys‐
tem, a court should hesitate to take that step.
The record here is equivocal at best on the applicability of
the “settled‐child” defense, and as our account of the facts
demonstrates, it does not support a finding that Martinez ever
acquiesced in Cahue’s actions. Moreover, it was Cahue who
willfully circumvented the Convention’s procedures, time
and again. Based on his conversations with an attorney and
State Department personnel, Cahue was aware of his legal
remedies. He nevertheless declined to exercise them because
he “knew [he] wouldn’t have won” (as he put it) on the peti‐
tion. Instead, he took advantage of Martinez’s good faith and
made her think that it was safe to send A.M. to Illinois for a
visit. He lulled Martinez into a false sense of security when he
returned A.M. to Mexico at the conclusion of A.M.’s spring‐
break stay.
Cahue may have tipped his hand when he bought the one‐
way ticket for the summer visit, but when Martinez raised the
point, he changed it to a round‐trip ticket. Yet all the while, he
planned to keep A.M. with him. In the past, we have sharply
criticized such “self‐help” measures, even suggesting that
there should be an anti‐self‐help poison pill: where a parent
exercises self‐help instead of using the Convention’s legal
remedies, he or she would transform the other parent’s juris‐
diction into the child’s habitual residence. See Kijowska v.
Haines, 463 F.3d 583, 588–89 (7th Cir. 2006). We need not go
that far now, however, and we note that any such step should
never lose sight of the best interests of the child. It is enough
No. 16‐1609 17
to say that in this case, rewarding Cahue’s strategy would be
quite damaging to the deterrent effect of the Convention.
Cahue has also taken advantage of Martinez’s pursuit of
her legal remedies through the Convention: during the pen‐
dency of her petition, he has worked actively to cement his
advantage in the courts of Illinois, his preferred jurisdiction.
When Martinez flew to Illinois, Cahue obtained an emergency
order from an Illinois court to keep A.M. there. After Martinez
returned to Mexico, despite her pending petition under the
Convention, he sought and obtained a default judgment in
state court granting him sole custody. Martinez instituted the
present emergency proceeding after she discovered that Ca‐
hue had obtained a new passport for A.M. and taken him to
Mexico without her knowledge or consent.
It is unclear whether the Illinois default judgment can or
will be reopened, and the Convention does not in principle
concern itself with custody decisions. Nevertheless, allowing
Cahue to gain an advantage from circumventing and exploit‐
ing the Convention in this way would pervert its goals. After
all, the Convention “seeks … to prevent a later decision on”
custody from “being influenced by a change of circumstances
brought about through unilateral action by one of the par‐
ties.” Garcia, 808 F.3d at 1162 (quoting Elisa Pérez–Vera, Ex‐
planatory Report: Hague Conference on Private International Law
¶ 71, in 3 Acts and Documents of the Fourteenth Session 426, 447–
48 (1980)). Here, declining to apply the Convention’s remedy
of return would do just that.
III
Martinez’s initial decision to move A.M. to Mexico was
lawful: she had sole custody over A.M. under Illinois law, and
18 No. 16‐1609
neither Illinois law nor the Convention precluded her from
moving with her son to Mexico with or without Cahue’s per‐
mission. Cahue had no rights of custody over A.M. that qual‐
ified Martinez’s position. Once in Mexico, A.M. adapted read‐
ily to his new home, such that by August 2014, when his fa‐
ther refused to return him, he was being kept from his habit‐
ual residence. Cahue retained A.M. in violation of Martinez’s
rights of custody under Mexican law—rights that she exer‐
cised continuously. Cahue’s retention of A.M. was therefore
wrongful under the Convention. Finally, applying a defense
here would not serve the aims of the convention.
We REVERSE the judgment of the district court and order
that A.M. be returned to Martinez’s custody in Mexico at the
earliest possible time.