Background
Sergio Sanchez Lozano and Maria Isabel Herrera Perez married in Mexico in 2015 and had two sons, including M.A.S., who was born in El Paso, Texas. The couple divorced in November 2021, with Herrera Perez receiving full custody and Lozano limited visitation. In December 2022, Lozano signed a travel authorization permitting Herrera Perez to take M.A.S. to Texas for a one-year “pleasure trip.” Herrera Perez brought the child to the United States in January 2023 but did not return. She eventually settled in Fort Worth, Texas, remarried, and informed Lozano in August 2023 that the family would not be returning to Mexico.
In December 2023, Lozano filed a petition under the Hague Convention on the Civil Aspects of International Child Abduction, seeking M.A.S.’s return to Mexico. The district court held a two-day hearing in late October 2024. Although it found that Herrera Perez had “wrongfully retained” the child under the Hague Convention, the district court applied two exceptions to deny Lozano’s petition: the child’s settlement in his new environment (Article 12) and a grave risk of harm upon return (Article 13(b)).
The district court found that Lozano has connections to Mexican drug traffickers in Durango, with his brother having disappeared twelve years earlier due to involvement with a cartel member’s wife. The court also found that Lozano is a regular cocaine user and cocaine addict who has used the drug for eighteen years, including as recently as eight days before the hearing, and that he is an alcoholic who abuses alcohol weekly. Critically, the court noted that Lozano never committed to ceasing his drug use or distancing himself from the cartel should the child be returned.
The Court’s Holding
The Fifth Circuit affirmed the district court’s denial of Lozano’s petition. The court held that clear and convincing evidence supported the district court’s conclusion that returning M.A.S. to Mexico would expose him to a grave risk of physical or psychological harm under Article 13(b) of the Hague Convention. The grave risk exception is not an invitation to determine the child’s best interests generally; rather, it focuses on the specific risk of harm posed by repatriation.
The court emphasized that the grave risk must be “grave, not merely serious”—greater than the normal trauma of separation from a parent. The risk analysis requires consideration of both the magnitude of potential harm and the probability that the harm will materialize. Here, the combination of Lozano’s documented cartel connections, his active and uncontested cocaine addiction (confirmed by his admission of use eight days before trial), his weekly alcohol abuse, and his explicit refusal to change his lifestyle created an objective, substantial, and grave risk to the child’s safety and wellbeing if returned.
Because the grave risk exception applied, the court did not need to address whether M.A.S. was well-settled in the United States, though the facts supported that conclusion: the child had lived in the U.S. for two years, was in third grade at the same school since arrival, had made the honor roll, had made friends, and lived in a stable household with his mother, stepfather, and siblings.
Key Takeaways
- The Hague Convention’s return remedy is not absolute and does not require return “at any cost.” Courts may apply narrow affirmative defenses when circumstances warrant.
- The grave risk exception requires clear and convincing evidence and focuses on the actual risk of repatriation—not on the broader question of custody or parental fitness.
- Active substance abuse, particularly when coupled with involvement in dangerous criminal enterprises and a parent’s refusal to change behavior, can establish grave risk sufficient to overcome the Convention’s strong presumption for return.
- The court will credit witness testimony establishing a parent’s criminal connections and substance abuse, and may infer the substantial risk such conduct poses to a child.
Why It Matters
This decision illustrates the Fifth Circuit’s willingness to protect children from objectively dangerous circumstances in the country of habitual residence when the evidence meets the demanding clear and convincing standard. While the Hague Convention strongly favors prompt return of wrongfully retained children to restore the pre-abduction status quo, it does not compel courts to expose children to grave risks. The court’s affirmation demonstrates that documented cartel ties and active, uncontested drug addiction, when combined with a parent’s refusal to abandon such associations, can constitute grounds for denying return even where the child meets the other criteria for mandatory repatriation.
The decision also reflects a practical recognition that the Convention’s exceptions exist precisely to address cases where returning the child would place him in circumstances manifestly harmful. The ruling provides guidance to district courts that specific, credible evidence of criminal enterprise involvement and substance abuse—particularly when uncontested by the petitioning parent—satisfies the high bar for the grave risk exception, even in a jurisdiction that ordinarily construes the Convention’s exceptions narrowly.