## Facts

- Richard Whallon and Diana Lynn, both U.S. citizens, lived in Cabo San Lucas, Baja California Sur, Mexico; their daughter Micheli was born there in 1995 and raised in Mexico.
- The parents never married and separated in late 1995; Micheli lived primarily with Lynn and her half-sister.
- No Mexican court entered a custody order, and the parents had no formal custody agreement.
- Whallon remained involved in Micheli’s life after the separation, though Lynn characterized his support and parental role as limited.
- Lynn alleged Whallon was verbally abusive and sometimes physically violent toward her and the half-sister; she did not allege abuse of Micheli.
- In early 2000, Lynn removed Micheli from Mexico to Massachusetts without Whallon’s consent.
- Whallon filed a petition in federal court under the Hague Convention and ICARA seeking Micheli’s return to Mexico.

## Issues

1. Whether Mexican “patria potestas” granted Whallon “rights of custody” under the Hague Convention such that Lynn’s unilateral removal was wrongful.
2. Whether Whallon consented to or acquiesced in the removal or retention in the United States.
3. Whether Lynn proved the Article 13(b) defense that return would expose Micheli to a grave risk of physical or psychological harm or place her in an intolerable situation.

## Decision

- The First Circuit affirmed the return order.
- The court held Mexico was Micheli’s habitual residence and the removal breached Whallon’s custody rights under Mexican law.
- The court concluded Whallon was exercising those rights at the time of removal.
- The court rejected the acquiescence/consent defense.
- The court held Lynn failed to prove the Article 13(b) grave-risk/intolerable-situation defense by clear and convincing evidence.

## Legal Principles

- A removal is wrongful under the Hague Convention if it breaches custody rights under the law of the child’s habitual residence and those rights were being exercised at the time of removal (Convention art. 3).
- “Rights of custody” include rights relating to the child’s care, including the right to determine the child’s place of residence (Convention art. 5(a)).
- Under Mexican law, patria potestas confers joint, non-waivable parental authority over major decisions concerning the child; such authority can qualify as “rights of custody” for Convention purposes, even where one parent is the primary residential caregiver.
- The petitioner must prove wrongful removal by a preponderance of the evidence; Article 13(b) must be proved by clear and convincing evidence under ICARA.
- Acquiescence generally requires clear, formal, and convincing manifestations of consent; prompt pursuit of return relief is inconsistent with acquiescence.
- Hague return proceedings determine the proper forum for custody litigation, not the merits of custody; custody and protective measures are ordinarily left to the courts of the habitual-residence country.

## Conclusion

The First Circuit ordered Micheli’s return to Mexico because her removal breached the father’s Mexican-law patria potestas custody rights, the father did not consent or acquiesce, and the mother did not establish an Article 13(b) grave-risk or intolerable-situation defense.


Whallon v. Lynn, 230 F.3d 450 (1st Cir. 2000)