## Facts

- Wiliam Estuardo Luis Ischiu (father) and Nely del Rosario Gomez Garcia (mother), both Guatemalan nationals, had a minor son, W.M.L.G.
- The mother left Guatemala with the child in 2016 and traveled to the United States, alleging a sustained pattern of severe physical and sexual abuse by the father and involvement or support by members of his family.
- A Guatemalan court issued a security-measures order restricting the father’s contact with the mother and child.
- The father allegedly violated that order by appearing at the mother’s family home and making death threats.
- The father filed a federal petition under the Hague Convention and ICARA seeking the child’s return to Guatemala.
- The court held a two-day bench trial with lay and expert testimony on Guatemalan law and psychological harm, and conducted an in camera, on-the-record interview of the child.
- The evidence showed the child was aware of, and at times witnessed, violence against the mother and expressed fear about returning to Guatemala.

## Issues

1. Whether the child’s removal from Guatemala was “wrongful” under the Hague Convention because it breached the father’s “rights of custody” exercised at the time of removal.
2. Whether the mother proved by clear and convincing evidence that return would expose the child to a “grave risk” of physical or psychological harm or otherwise place him in an intolerable situation under Article 13(b).
3. Whether the child objected to return and had sufficient age and maturity for the court to consider his views under Article 13.
4. Whether the Guatemalan security-measures order extinguished or sufficiently limited the father’s custody rights such that removal was not wrongful.

## Decision

- The court denied the petition for return and declined to order the child’s return to Guatemala.
- The court treated the custody-rights dispute as non-dispositive by assuming arguendo that the father had Hague “rights of custody.”
- The court held the mother established the Article 13(b) grave-risk exception by clear and convincing evidence based on severe domestic violence, the child’s exposure to it, and the limited effectiveness of protective measures.
- The court considered the child’s expressed fears and desire not to return as corroborating the grave-risk analysis, without relying on the child-objection exception as the primary ground.

## Legal Principles

- Under ICARA and the Hague Convention, a petitioner must prove wrongful removal or retention; if shown, return is generally required unless a treaty exception applies.
- Article 13(b) permits denial of return when clear and convincing evidence shows a grave risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
- Domestic violence directed at a parent can create a grave risk to a child, particularly where the child is aware of or witnesses the abuse and faces a likelihood of continued exposure upon return.
- Courts may examine whether proposed protective measures in the habitual-residence country will meaningfully reduce risk; prior violations of protective orders and limits on enforcement can support a finding that such measures are inadequate.
- Article 13 allows a court to consider a child’s objection to return when the child has reached an age and degree of maturity making it appropriate to account for the child’s views, with weight depending on the circumstances.

## Conclusion

The court denied return under the Hague Convention after finding, on clear and convincing evidence, that returning the child to Guatemala would create an Article 13(b) grave risk due to severe domestic violence, the child’s exposure and fear, and the demonstrated limits of protective measures.


Luis Ischiu v. Gomez Garcia, 274 F. Supp. 3d 339 (D. Md. 2017)