Grave-Risk Return Bar Under the Hague Convention Where Repatriation Would Expose a Child to a Parent’s Cartel Ties and Active Substance Addiction

1. Introduction

Lozano v. Perez (5th Cir. July 9, 2026) arises from an international child-abduction dispute governed by the Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”) and its U.S. implementing statute, the International Child Abduction Remedies Act (ICARA), 22 U.S.C. §§ 9001–9011.

The petitioner, Sergio Sanchez Lozano (“Father”), sought the return of his young son, M.A.S., to Mexico after the respondent, Maria Isabel Herrera Perez (“Mother”), brought the child to Texas and thereafter retained him in the United States. The district court found the child was wrongfully retained under the Convention, but denied return based on two exceptions: (1) the “well-settled” exception (Article 12) and (2) the “grave risk” exception (Article 13(b)).

On appeal, the Fifth Circuit affirmed solely on Article 13(b), holding the district court did not clearly err in finding that returning the child to Mexico would expose him to a grave risk of physical or psychological harm or otherwise place him in an intolerable situation due to Father’s cartel connections and ongoing cocaine and alcohol abuse.

2. Summary of the Opinion

The Fifth Circuit affirmed the denial of Father’s return petition under the Hague Convention. Although wrongful retention was established and undisputed on appeal, the court held that Mother met her burden under ICARA to prove, by clear and convincing evidence, that return would create a grave risk under Article 13(b).

Critically, the panel declined to review the district court’s “well-settled” finding because Article 13(b), if satisfied, independently permits denial of return. The court emphasized the limited role of Hague proceedings: they are not custody adjudications, but forum-restoring mechanisms subject to narrow defenses.

3. Analysis

3.1. Precedents Cited

  • Abbott v. Abbott, 560 U.S. 1 (2010)
    Cited for the Convention’s purpose and mechanics: prompt return is the “central operating feature,” designed to restore the status quo and deter forum shopping. The Fifth Circuit used Abbott as foundational authority for the Convention’s return-first structure, while recognizing exceptions.
  • Lozano v. Montoya Alvarez, 572 U.S. 1 (2014)
    Used to frame the Convention’s objectives and the non-absolute nature of the return remedy, as well as to situate Article 12’s one-year/well-settled structure. The panel also relied on Lozano to reiterate that exceptions exist but are limited.
  • Monasky v. Taglieri, 589 U.S. 68 (2020)
    Invoked for the Convention’s “core premise” that custody disputes should be decided in the child’s country of habitual residence and that return is a “provisional” remedy fixing the custody forum rather than deciding custody merits.
  • Madrigal v. Tellez, 848 F.3d 669 (5th Cir. 2017)
    Cited for the deterrence/status-quo rationale and, importantly, for the Fifth Circuit’s articulation of Article 13(b): a grave risk must be “greater than would normally be expected” from transferring a child between parents.
  • England v. England, 234 F.3d 268 (5th Cir. 2000)
    Used for two propositions: (1) the standard of review for factual findings (clear error), and (2) the prohibition on adjudicating the merits of underlying custody disputes in Hague cases.
  • Guevara v. Castro, 155 F.4th 353 (5th Cir. 2025), cert. denied, 146 S. Ct. 1066 (2026)
    Relied upon to stress that the Convention does not pursue return “at any cost” and that defenses are “narrow affirmative defenses.” The panel used Guevara to justify careful but limited application of exceptions.
  • Hernandez v. Pena, 820 F.3d 782 (5th Cir. 2016)
    Quoted (via Guevara) for the narrowness of the Convention’s affirmative defenses and for the framing that return may yield where the child’s interests are better served by remaining.
  • Golan v. Saada, 596 U.S. 666 (2022)
    Cited to reinforce that return is not absolute and to underscore statutory and Convention limits—Hague litigation is not a best-interests custody inquiry.
  • Galaviz v. Reyes, 95 F.4th 246 (5th Cir. 2024)
    The panel leaned heavily on Galaviz for modern Fifth Circuit treatment of Article 13(b): the grave-risk inquiry is about repatriation risk (not parental fitness), requires clear and convincing evidence, and must be more than speculation. The court used Galaviz to validate reliance on concrete testimony and to reject conjecture as insufficient.
  • Rodriguez v. Yanez, 817 F.3d 466 (5th Cir. 2016) and Sealed Appellant v. Sealed Appellee, 394 F.3d 338 (5th Cir. 2004)
    Cited to support the principle that Hague exceptions must be construed narrowly to avoid swallowing the return rule, and to reinforce clear-error review deference.
  • Soto v. Contreras, 880 F.3d 706 (5th Cir. 2018) (quoting Tavarez v. Jarrett, 252 F. Supp. 3d 629 (S.D. Tex. 2017))
    Used to warn against transforming Hague proceedings into custody disputes via expansive defenses. Also provides the “grave, not merely serious” gloss (via the State Department analysis).
  • Walsh v. Walsh, 221 F.3d 204 (1st Cir. 2000) and Souratgar v. Lee, 720 F.3d 96 (2d Cir. 2013)
    Borrowed for cross-circuit articulation of the grave-risk standard: harm must exceed ordinary relocation distress, and grave risk turns on both magnitude and probability of harm.
  • Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed. Reg. 10494 (Mar. 26, 1986)
    The panel cited the State Department’s official interpretive analysis to ground the narrow construction of defenses and the “grave, not merely serious” characterization.
  • Standards of review and evidentiary deference cases: 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); plus the non-speculation principle drawn from Kinnear-Weed Corp. v. Humble Oil & Refin. Co., 441 F.2d 631 (5th Cir. 1971).
    Together, these authorities supported the panel’s central appellate move: defer to the district court’s credibility-based findings unless implausible.
  • Nunez-Escudero v. Tice-Menley, 58 F.3d 374 (8th Cir. 1995)
    Cited (via England) for the principle that Hague proceedings do not adjudicate custody merits.

3.2. Legal Reasoning

The Fifth Circuit’s reasoning proceeds in a conventional Hague structure:

  1. Wrongful retention established; defenses become decisive.
    With wrongful retention conceded, the analysis turned entirely to whether Mother proved an exception under the Convention, as allocated by ICARA.
  2. Burden and quantum of proof.
    Under 22 U.S.C. § 9003(e)(2)(A), Mother bore the burden to prove Article 13(b) by clear and convincing evidence. The panel framed the inquiry as risk-from-repatriation, not comparative custody fitness (tracking Galaviz v. Reyes).
  3. Definition of “grave risk” applied to the record.
    Drawing on Soto v. Contreras, Madrigal v. Tellez, Walsh v. Walsh, and Souratgar v. Lee, the panel reiterated:
    • the risk must be “grave, not merely serious,”
    • the risk must exceed ordinary disruption from a return, and
    • grave risk depends on both magnitude and probability of harm.
    The court then connected these standards to two fact clusters the district court found credible: (a) Father’s cartel/drug-trafficker connections in Durango (including evidence surrounding the brother’s disappearance tied to cartel retaliation), and (b) Father’s active cocaine addiction and weekly alcohol abuse (including admitted recent cocaine use).
  4. Clear-error review did the decisive work.
    The Fifth Circuit stressed that the district court’s findings were “based on an evaluation of the witnesses’ testimony.” Under Rule 52(a)(6) and cases like Anderson v. City of Bessemer City, appellate courts rarely second-guess credibility determinations. The panel rejected the notion that Mother’s evidence was speculative, contrasting it with Galaviz v. Reyes and Kinnear-Weed Corp. v. Humble Oil & Refin. Co..
  5. Affirmance without reaching “well-settled.”
    The court accepted Father’s concession (through counsel) that he needed to defeat both defenses to win. Because Article 13(b) applied “[n]otwithstanding” Article 12’s return mandate, the panel affirmed on grave risk alone.

3.3. Impact

Although the opinion is “not designated for publication,” its reasoning is instructive for Hague litigation within the Fifth Circuit in several ways:

  • Cartel exposure plus active substance addiction can satisfy Article 13(b) when supported by concrete testimony.
    The court treated cartel ties and ongoing drug/alcohol abuse as repatriation-linked dangers that can amount to “intolerable situation” or grave risk, so long as the showing is grounded in record evidence and not conjecture.
  • Credibility-based district court findings will be difficult to overturn.
    The panel’s heavy reliance on clear-error deference signals that respondents who develop a strong evidentiary record at the hearing stage (especially live testimony) can effectively insulate an Article 13(b) victory on appeal.
  • Appellate courts may affirm on Article 13(b) without deciding Article 12’s “well-settled” defense.
    Practically, this encourages litigants to treat grave risk as a potentially case-dispositive defense and to brief it independently, rather than assuming “well-settled” will drive the outcome where the child has been in the United States for an extended time.
  • Reinforcement of the “not custody merits” boundary.
    By repeatedly citing Galaviz v. Reyes, England v. England, and Golan v. Saada, the court reinforced that Hague cases remain forum-determining proceedings, even when evidence overlaps with custody-fitness considerations.

4. Complex Concepts Simplified

  • Hague Convention “return” remedy: A fast, temporary order that typically sends the child back to the country of habitual residence so that country’s courts decide custody.
  • Wrongful removal/retention: Keeping a child across borders in violation of custody rights recognized by the child’s habitual-residence law. Here, wrongful retention was found and not contested.
  • Article 12 “well-settled” exception: If more than one year passes before proceedings commence, return can be denied if the child is now settled in the new environment (school, stability, friendships, community integration).
  • Article 13(b) “grave risk” exception: Return can be refused if it would expose the child to serious danger—physical or psychological—or place the child in an intolerable situation. It is narrower than “best interests.”
  • Clear and convincing evidence: A heightened civil standard requiring a high level of certainty—more than “more likely than not,” less than “beyond a reasonable doubt.”
  • Clear-error review: On appeal, factual findings stand unless the appellate court has a “definite and firm conviction” a mistake occurred, especially where the trial judge observed witnesses and assessed credibility.

5. Conclusion

Lozano v. Perez reaffirms core Hague principles—prompt return as the default, narrow defenses, and avoidance of custody-merits adjudication— while illustrating how Article 13(b) can be met when the evidentiary record shows that repatriation would place a child in the orbit of cartel-linked danger and a parent’s ongoing substance addiction. The Fifth Circuit’s affirmance underscores that, in Hague cases, the hearing-level factual record and credibility determinations are often outcome-determinative, and that a well-supported grave-risk finding can independently sustain denial of return.