Article 13(b) Grave Risk Established by Cartel Ties and Ongoing Substance Abuse in Hague Return Proceedings

1. Introduction

Lozano v. Perez (5th Cir. Aug. 4, 2026) arises from an international parental child abduction dispute under the Hague Convention on the Civil Aspects of International Child Abduction and its U.S. implementing statute, the International Child Abduction Remedies Act (ICARA), 22 U.S.C. §§ 9001–9011. Plaintiff-Appellant Sergio Sanchez Lozano sought the return of his young son, M.A.S., to Mexico after Defendant-Appellee Maria Isabel Herrera Perez brought the child to Texas and then did not return.

The district court found that the child was wrongfully retained in the United States (a finding not contested on appeal), but denied return based on two Convention exceptions: (1) the child was well-settled in the United States (Article 12), and (2) return would expose the child to a grave risk of physical or psychological harm or place him in an intolerable situation (Article 13(b)).

On rehearing, the Fifth Circuit withdrew its prior opinion and substituted the present decision, affirming the denial of return based on Article 13(b) alone and expressly declining to reach the “well-settled” issue.

2. Summary of the Opinion

The Fifth Circuit affirmed the district court’s denial of the Hague return petition because the respondent proved, by clear and convincing evidence, that returning M.A.S. to Mexico would expose him to a grave risk of harm or an intolerable situation under Article 13(b). The district court’s factual findings—particularly that the father had ties to a cartel/drug traffickers and had ongoing, serious cocaine addiction and alcohol abuse—were not clearly erroneous.

The panel noted that the Fifth Circuit has not definitively resolved whether the ultimate “grave risk” determination is reviewed de novo or for clear error, but held the result would be the same under the less deferential de novo standard.

3. Analysis

3.1. Precedents Cited

  • Abbott v. Abbott, 560 U.S. 1 (2010)
    Used for core Convention framing: the Convention’s “central operating feature” is return, aimed at restoring the pre-abduction status quo and deterring forum shopping. The Fifth Circuit leaned on Abbott’s articulation that return is required unless an exception applies, keeping the analysis anchored in the Convention’s structure rather than domestic “best interests.”
  • Lozano v. Montoya Alvarez, 572 U.S. 1 (2014)
    Cited for the proposition that the return remedy is “not absolute” and for the Article 12 one-year/well-settled framework. Even though the Fifth Circuit did not decide the well-settled issue, Lozano supplied the baseline architecture: return is the default, exceptions are recognized.
  • Monasky v. Taglieri, 589 U.S. 68 (2020)
    Cited for the Convention’s “core premise” that custody merits should be decided in the child’s habitual residence, and that the Hague remedy is “provisional” in fixing the forum. This supports the court’s repeated insistence that Article 13(b) is not a custody best-interests inquiry.
  • Madrigal v. Tellez, 848 F.3d 669 (5th Cir. 2017) and England v. England, 234 F.3d 268 (5th Cir. 2000)
    These Fifth Circuit cases reinforce the Convention’s deterrence purpose and the limited nature of Hague proceedings. Madrigal is also used for the “grave risk” threshold: harm must be “greater than would normally be expected” from transferring a child between parents across borders.
  • Guevara v. Castro, 155 F.4th 353 (5th Cir. 2025), cert. denied, 146 S. Ct. 1066 (2026), and Hernandez v. Pena, 820 F.3d 782 (5th Cir. 2016)
    Cited for the caution that the Convention does not pursue return “at any cost” and for characterizing the defenses as “narrow.” Guevara is also cited for appellate review methodology (including that Guevara addressed de novo review for the well-settled exception), which the panel contrasted with its still-open approach for grave risk.
  • Golan v. Saada, 596 U.S. 666 (2022)
    Cited to underscore that courts may not adjudicate underlying custody merits in Hague cases, and to reinforce that exceptions exist and must be applied carefully.
  • Galaviz v. Reyes, 95 F.4th 246 (5th Cir. 2024)
    Central to the panel’s articulation of Article 13(b): the focus is the risk posed by repatriation, not parental worthiness; the harm must be grave; and the analysis considers magnitude and probability. Galaviz also supplies the caution that “mere speculation” cannot satisfy the clear-and-convincing burden.
  • Soto v. Contreras, 880 F.3d 706 (5th Cir. 2018) and Tavarez v. Jarrett, 252 F. Supp. 3d 629 (S.D. Tex. 2017)
    Cited for the “exception must not swallow the rule” principle—i.e., defenses must be narrowly construed to prevent Hague proceedings from becoming de facto custody litigation.
  • Rodriguez v. Yanez, 817 F.3d 466 (5th Cir. 2016) and Sealed Appellant v. Sealed Appellee, 394 F.3d 338 (5th Cir. 2004)
    Reinforce the “narrow defenses” lens. Sealed Appellant is also used for clear-error review framing (“plausible in light of the record”).
  • Nunez-Escudero v. Tice-Menley, 58 F.3d 374 (8th Cir. 1995)
    Cited (via England) for the non-merits principle: Hague courts do not adjudicate custody merits.
  • Walsh v. Walsh, 221 F.3d 204 (1st Cir. 2000) and Souratgar v. Lee, 720 F.3d 96 (2d Cir. 2013)
    Used for gravamen of “grave risk”: not just seriousness but probability; and that the harm must exceed the normal disruption of return and custodial transfer.
  • Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed. Reg. 10494 (Mar. 26, 1986)
    Used as interpretive guidance emphasizing narrow construction of defenses and clarifying Article 13(b)’s function. This supports the court’s insistence on disciplined application and avoidance of best-interests adjudication.
  • Standards-of-review and factfinding authorities: United States v. U.S. Gypsum Co., 333 U.S. 364 (1948), Anderson v. City of Bessemer City, 470 U.S. 564 (1985), United States v. Powers, 168 F.3d 741 (5th Cir. 1999), A.P. ex rel. E.P. v. Pearland Indep. Sch. Dist., 158 F.4th 672 (5th Cir. 2025), Ali v. Stephens, 822 F.3d 776 (5th Cir. 2016), and Fed. R. Civ. P. 52(a)(6).
    These authorities collectively justify strong deference to the trial court’s credibility determinations and factual findings in a Hague evidentiary hearing.
  • Evidence sufficiency authority: Kinnear-Weed Corp. v. Humble Oil & Refin. Co., 441 F.2d 631 (5th Cir. 1971)
    Cited (through Galaviz) to emphasize that speculation cannot carry a clear-and-convincing burden.

3.2. Legal Reasoning

(a) Sequencing and issue selection. The panel accepted that wrongful retention was established and treated Article 13(b) as dispositive: because Article 13(b) applies “[n]otwithstanding” the Article 12 return command, the court affirmed on grave risk alone and declined to decide whether the child was “well-settled.”

(b) Burden and standard of proof. Under ICARA, once wrongful removal/retention is shown, the respondent bears the burden to prove the Article 13(b) defense by clear and convincing evidence (22 U.S.C. § 9003(e)(2)(A)). The opinion repeatedly distinguishes this from a comparative parenting inquiry: the question is risk from return, not whether the petitioner is “a worthy custodian.”

(c) The “grave risk” threshold: magnitude and probability. Relying on Galaviz v. Reyes, Soto v. Contreras, Madrigal v. Tellez, Walsh v. Walsh, and Souratgar v. Lee, the panel frames grave risk as requiring more than “serious” harm: it must be “grave,” considering both the severity of potential harm and the likelihood it will occur.

(d) Deference to trial factfinding, especially credibility. Applying clear-error review to factual findings, the panel held that the district court permissibly credited Herrera Perez’s testimony about cartel involvement and safety concerns in Durango, and relied on admissions and corroborating details (e.g., the brother’s long disappearance linked to cartel activity, the father’s history of buying drugs). The court emphasized that this was not “mere speculation” and that credibility calls are owed substantial deference under Fed. R. Civ. P. 52(a)(6).

(e) Substantive application to the record. The court treated two clusters of facts as jointly supporting Article 13(b): (1) exposure to cartel/drug-trafficker “connections” in the return environment, and (2) ongoing substance abuse (regular cocaine use and weekly alcohol abuse) with no expressed intent to disengage from drugs or cartel-adjacent activity if the child returned. The combination supported the conclusion that repatriation would expose the child to a grave risk of physical or psychological harm or place him in an intolerable situation.

(f) Standard of review on the ultimate grave-risk determination. The panel highlighted an open Fifth Circuit question: whether the legal conclusion that Article 13(b) is satisfied is reviewed de novo or for clear error. Citing Galaviz v. Reyes, it avoided deciding the issue by holding that Article 13(b) was satisfied even under de novo review (and thus also under a more deferential standard).

3.3. Impact

Although designated “not for publication” (5th Cir. R. 47.5) and thus nonprecedential, the opinion is likely to be cited as persuasive authority in at least three recurring Hague contexts:

  • Cartel/criminal-network risk as Article 13(b) evidence. The decision illustrates that a trial court may find “ties” to a cartel based on credible testimony and surrounding circumstances (including family history linked to cartel violence), without requiring proof of formal membership—so long as the evidence is not speculative and meets the clear-and-convincing threshold.
  • Substance abuse as a repatriation-risk factor. The panel treated ongoing cocaine addiction and alcohol abuse—supported by admissions and credibility findings—as probative of grave risk upon return, particularly where the petitioner does not commit to cessation or distancing from drug acquisition networks.
  • Appellate strategy and issue narrowing. The court’s approach confirms that, where Article 13(b) is established, appellate courts may affirm without reaching Article 12 “well-settled,” focusing litigation on the most outcome-determinative defense.

The opinion also underscores the importance of building a detailed evidentiary record at the district-court hearing: credibility determinations and specific factual findings are difficult to dislodge on appeal, particularly where the respondent’s proof aligns with the Convention’s narrow-but-real safety valve in Article 13(b).

4. Complex Concepts Simplified

  • Wrongful removal vs. wrongful retention. “Removal” is taking a child across borders contrary to custody rights; “retention” occurs when a child is not returned as agreed or required. Here the courts treated the failure to return from Texas to Mexico as wrongful retention.
  • “Habitual residence” and the Hague “return” remedy. Hague proceedings generally decide where custody should be litigated (typically the child’s habitual residence), not who should win custody.
  • Article 12 “well-settled.” If a Hague petition is filed more than one year after wrongful removal/retention, return is still generally ordered unless the child is now “settled” in the new environment. The Fifth Circuit did not reach this defense because Article 13(b) was dispositive.
  • Article 13(b) “grave risk” / “intolerable situation.” A narrow exception allowing a court to refuse return if returning the child would likely expose him to severe physical or psychological harm (or an otherwise intolerable situation). It is not a “best interests” inquiry.
  • “Clear and convincing evidence.” A higher burden than “more likely than not.” The respondent must produce strong, persuasive evidence of grave risk.
  • “Clear error” vs. “de novo” review. “Clear error” is highly deferential to trial-court factfinding; “de novo” is nondeferential review of legal questions. The Fifth Circuit avoided deciding which applies to the ultimate grave-risk conclusion because the outcome was the same under either.

5. Conclusion

Lozano v. Perez reaffirms a disciplined Hague Convention framework: wrongful retention triggers a presumptive return remedy, but Article 13(b) remains a meaningful safety valve where the respondent proves, by clear and convincing evidence, that repatriation would expose the child to a grave risk of harm or an intolerable situation. On the record credited by the district court—cartel-adjacent connections coupled with ongoing cocaine addiction and alcohol abuse—the Fifth Circuit held that Article 13(b) justified denial of return, and it affirmed without addressing the separate well-settled defense.