Opinion

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 25-cv-24087-BLOOM/Elfenbein

JOHNNY TEIXEIRA JARDIM,

Petitioner,

v.

BARBARA YAILYN PEREZ PAEZ,

Respondent.

__________________________________/

ORDER GRANTING PETITION

THIS CAUSE is before the Court following an evidentiary hearing on November 4,

2025 and November 26, 2025. ECF Nos. [39],[44]. On September 8, 2025, Petitioner Johnny

Teixeira Jardim filed a Verified Petition for Return of Children to Venezuela and Issuance of

Show Cause Order (“Petition”). ECF No. [1]. On October 8, 2025, Respondent Barbara Yailyn

Perez Paez filed a Verified Answer and Affirmative Defenses. ECF No. [15]. The Court has

considered the testimony at the evidentiary hearing, the exhibits admitted into evidence. Upon

request of the Court, the parties submitted post-evidentiary arguments, findings of fact, and

conclusions of law. See ECF Nos. [47],[49]. The Court has considered the Petition, the

supporting and opposing submissions, the testimony and evidence received, the applicable law,

and is otherwise fully advised. For the reasons that follow, the Petition is granted.

I. FINDINGS OF FACT

The following findings of fact are based on the testimony elicited during trial, the

evidence entered into the record, and the parties’ submissions. Petitioner and Respondent met in

Venezuela in 2012 and began living together in August 2015. ECF No. [47] at 9. Minor children

M.J.T.P. (“MJ”) and E.J.T.P (“EJ”) were born to Petitioner and Respondent in Venezuela on

September 2, 2015 and January 15, 2021, respectively. ECF No. [1-1]. Petitioner and

Respondent lived together in Venezuela for approximately nine years until they separated in

2024. The children lived and attended school in Venezuela for their entire lives. Respondent has

family in the United States and had traveled to the United States with the children in previous

years. Each time, Respondent timely returned the children to Venezuela. ECF No. [49] ¶ 35. On

June 14, 2024, Petitioner gave Respondent permission to take MJ and EJ to the United States to

see her family on June 26, 2024 and to return to Venezuela on September 18, 2024. ECF No. [1-

2]. On September 6, 2024, Respondent texted Petitioner and stated that she did not want to return

to Venezuela with the children. ECF No. [48-5]. Respondent stated:1

I would like to talk to you. [MJ] just received a scholarship to study at school for

the English course. I just arrived, and with his drawings, there are [sic] a class that

accumulates points toward the scholarship at university. I think its great for his

future. That’s why I’m thinking about staying and giving them a better life here.

Obviously, this decision isn’t easy for you, but I would like us to think about

giving them a better future, and for you to be able to come visit him every year.

He also wants to try out to play for Real Madrid Junior, and I would like to take

him to see how he does. They won’t need anything here, and it’s up to you to give

him what you were giving him between school and food there. Otherwise, they

won’t lack anything.

In Venezuela, I’m not doing well financially. Here, I have many options to give

the children a better life.

ECF No. [48-5] at 1.

In response, Petitioner texted “I’m telling you right now, don’t even think about it . . .

You stay, I’ll stay with the children[.]” Id.

Respondent’s mother and two sisters live in South Florida. ECF No. [49] ¶ 31.

Respondent’s mother applied for asylum in the United States nine years ago and her sisters

applied for asylum six and eleven years ago, respectively. Id. Respondent’s grandmother and

aunts also live in the United States. Id. ¶ 32. Respondent testified that, although she was

1 The messages were entered into evidence having been translated from Spanish to English.

previously aware that asylum existed, she did not consider seeking asylum in the United States

until she had already arrived in the United States. Respondent testified that it was not until she

“saw the difference of how my child was feeling, that I had a future with the help of my family

because I didn’t have the support of anybody in Venezuela,” that she decided to remain in the

United States. In December 2024, Respondent filed an Application for Asylum and for

Withholding of Removal for herself and her children. ECF No. [40]. The Application is still

pending.

In her Answer, Respondent asserted the following affirmative defenses: (1) Petitioner has

consented and/or acquiesced to the removal and retention of the children in the United States; (2)

Petitioner filed the instant Petition more than a year after the wrongful retention in the United

States and the children are well settled in their new environment; (3) the children would be at

grave risk of harm if returned to Venezuela; (4) the mature child exception applies with regard to

MJ. ECF No. [15] at 8-9.

II. LEGAL STANDARD

“The Hague Convention seeks ‘to protect children internationally from the harmful

effects of their wrongful removal or retention and to establish procedures to ensure their prompt

return to the State of their habitual residence.’” Calixto v. Lesmes, 909 F.3d 1079, 1083 (11th

Cir. 2018) (quoting Hanley v. Roy, 485 F.3d 641, 644 (11th Cir. 2007)). The Hague Convention

allows an individual to “petition a court authorized to exercise jurisdiction in the place where

a child is located for the return of the child to his habitual residence in another signatory

country.” Chafin v. Chafin, 742 F.3d 934, 936 (11th Cir. 2013). The Convention and its

implementing legislation “empower courts in the United States to determine only rights under

the Convention and not the merits of any underlying child custody claims.” Gomez v.

Fuenmayor, 812 F.3d 1005, 1010-11 (11th Cir. 2016) (quoting 22 U.S.C. § 9001(b)(4)).

Accordingly, the Court’s role is limited to acting as a gatekeeper to restore the parties to the pre-

abduction or pre-retention status quo so that issues of child custody may be determined in the

proper contracting state. Seaman v. Peterson, 766 F.3d 1252, 1257 (11th Cir.

2014) (citing Lozano v. Montoya Alvarez, 572 U.S. 1, 4-5 (2014); Abbott v. Abbott, 560 U.S. 1, 9

(2010); Ruiz v. Tenorio, 392 F.3d 1247, 1250 (11th Cir. 2004)).

The International Child Abduction Remedies Act (“ICARA”) is the Convention’s

implementing legislation in the United States. “A petitioning parent must prove ‘by a

preponderance of the evidence, that her child was wrongfully removed or retained within the

meaning of the Convention.’” Berenguela-Alvarado v. Castanos, 950 F.3d 1352, 1358 (11th Cir.

2020) (quoting Chafin, 742 F.3d at 938)). A removal is “wrongful” if:

a) it is in breach of rights of custody attributed to a person, an institution or any

other body, either jointly or alone, under the law of the State in which the child

was habitually resident immediately before the removal or retention; and

b) at the time of removal or retention, those rights were actually exercised, either

jointly or alone, or would have been so exercised but for the removal or retention.

Id. (quoting Hague Convention on the Civil Aspects of International Child Abduction, Oct.

25, 1980, art. 3.).

Custody rights may arise “by operation of law or by reason of a judicial or administrative

decision, or by reason of an agreement having legal effect under the law of that State.”

Convention, art. 3. For purposes of the Convention, rights of custody “include rights relating to

the care of the person of the child and, in particular, the right to determine the child’s place of

residence.” Convention, art. 5(a).

“The respondent who opposes return has the burden of establishing ‘that one of the

exceptions set forth in article 13b or 20 of the Convention applies’ by clear and convincing

evidence, or ‘that any other exception set forth in article 12 or 13 of the Convention applies,’ by

a preponderance of the evidence.” Ovalle v. Perez, No. 16-cv-62134, 2016 WL 6082404, at *7

(S.D. Fla. Oct. 18, 2016), aff’d, 681 F. App’x 777 (11th Cir. 2017) (quoting 22 U.S.C. §

9003(e)(2)). Those exceptions include: (1) where more than a year has elapsed since the

wrongful retention and the child is well-settled in the new environment; (2) the petitioner was

not actually exercising the custody rights at the time of removal or retention, or had consented to

or subsequently acquiesced in the removal or retention; (3) where there is a grave risk that the

child’s return would expose him or her to physical or psychological harm or otherwise place the

child in an intolerable situation; and (4) the return of the child would not be permitted under the

fundamental principles of the requested state relating to the protection of human rights and

fundamental freedoms. Furnes v. Reeves, 362 F. 3d 702, 712 & n.8 (11th Cir. 2004), abrogated

on other grounds by Lozano, 572 U.S. at 10. “These affirmative defenses are to be narrowly

construed to effectuate the purposes of the Convention and, even if proven, do not automatically

preclude an order of return.” Baran v. Beaty, 526 F.3d 1340, 1345 (11th Cir. 2008). “As the

Convention’s official commentary has noted, narrow interpretations of the exceptions are

necessary to prevent them from swallowing the rule and rendering the Convention ‘a dead

letter.’” Gomez v. Fuenmayor, 812 F.3d 1005, 1011 (11th Cir. 2016) (quoting Elisa Perez–Vera,

Explanatory Report: Hague Conference on Private International Law, in 3 Acts and Documents

of the Fourteenth Session 426 (1980)).

III. DISCUSSION

A. Prima Facie Case

Respondent concedes that Petitioner has “established a prima facie case in support of his

Petition, and would therefore be entitled to the relief sought therein[,]” but argues that she has

“met her burden of proof as to her first, second and fourth2 Affirmative Defenses[.]” ECF No.

[49] ¶ 60, 69. Indeed, the Court finds that Petitioner has established a prima facie case that

Respondent wrongfully retained MJ and EJ in the United States: (1) the children were habitual

residents of Venezuela immediately before they were brought to the United States; (2)

Respondent’s retention of the children in the United States breached Petitioner’s custody rights

under Venezuelan law; and (3) Petitioner had been exercising his custody rights at the time of

retention. See Berenguela-Alvarado v. Castanos, 950 F.3d 1352, 1358 (11th Cir. 2020).

First, given that the children lived and went to school in Venezuela until they were

brought to the United States in June 2024, the children were habitual residents of Venezuela.

Second, Petitioner’s custody rights were breached under Venezuelan law. During her testimony,

Respondent admitted that she violated the travel permit issued by a Venezuelan judge, in which

Petitioner consented to the children traveling to the United States solely from June 26, 2024 to

September 18, 2024. ECF No. [1-2] at 3. Third, Petitioner also put forward credible evidence that

he had been exercising his custodial rights over the children at the time of their retention by

Respondent. He testified that he regularly spent time with MJ and EJ in Venezuela when he

came home from work, and they would go to the beach, pool, and parks together. Because

Petitioner has established a prima facie case by a preponderance of the evidence, the burden

shifts to Respondent to prove her affirmative defenses.

2 Respondent concedes in her Proposed Findings of Fact and Conclusions of Law that her “third Affirmative

Defense has not been established under law.” ECF No. [49] ¶ 63. She acknowledges in her recommended findings

of fact that “there is not clear and convincing evidence that the parties’ children would themselves be at ‘grave risk

of harm’ if forced to return to Venezuela.” Id. ¶ 57.

B. Affirmative Defenses3

i. Consent/Acquiescence

Respondent’s first affirmative defense is that “Petitioner has consented and/or acquiesced

to the removal and retention of the children in the United States.” ECF No. [15] at 8. This

affirmative defense must be proven by a preponderance of the evidence. Berenguela-Alvarado,

950 F.3d at 1359 (citing Convention, art. 13(a); 22 U.S.C. § 9003(e)(2)(B)). Although the

consent “needn’t be formal . . . [t]he focus of the court’s inquiry should be on the petitioning

parent’s ‘subjective intent,’ and should take into account ‘[t]he nature and scope of the

petitioner’s consent, and any conditions or limitations’ on that consent.” Id. (quoting Baxter v.

Baxter, 423 F.3d 363, 371 (3d Cir. 2005)).

Respondent has not put forward any evidence to support this affirmative defense.

Respondent solely argues “[t]he petition does not contain any allegations regarding the Mother’s

or Father’s actions from September 6, 2024 until ‘the end of August, 2025.’” ECF No. [49] ¶ 5.

However, it is undisputed that Petitioner agreed to permit the children to go to the United States

with Respondent from June 24, 2024 to September 18, 2024. ECF No. [1-2]. There is no

evidence that Petitioner consented to the children remaining in the United States beyond that

period. Indeed, Petitioner admitted into evidence text messages between him and Respondent

showing that when Respondent told Petitioner that she did not intend to return to Venezuela,

Petitioner immediately objected. ECF No. [48-5]. On September 6, 2024, four minutes after

Respondent texted Petitioner “I’m thinking about staying [in the United States] and giving [the

children] a better life here[,]” Petitioner responded, “I’m telling you right now, don’t even think

about it” and “You stay, I’ll stay with the children[.]” Id.

3 Because Respondent concedes that she has not met her burden of proof on her third affirmative defense, the Court

only addresses the first, second, and fourth affirmative defenses. ECF No. [49] ¶ 63.

Respondent suggests that the Court should interpret the fact that Petitioner “waited more

than one year after September 6, 2024 . . . to file his petition in this case[,]” as evidence that he

consented to or acquiesced in the removal of the children. ECF No. [49] ¶¶ 8, 16. However, as

Respondent acknowledges, Petitioner testified that “he tried to take action in Venezuela by

contacting an attorney there and filing papers under Venezuelan law[.]” Id. ¶ 17. Respondent

points out that Petitioner did “not identify the attorney and he did not introduce any documents to

support that testimony.” Id. However, Petitioner’s testimony was credible, and the record

supports that he did not consent or acquiesce. Moreover, as Respondent is asserting the

affirmative defense of consent or acquiescence, she has the burden to prove the defense by a

preponderance of evidence. Respondent has failed to satisfy her burden for the first affirmative

defense.

ii. Settled Child

Respondent’s second affirmative defense is that more than one year has elapsed since the

children’s unlawful retention, and they are well-settled in their new environment. ECF No. [15]

at 8 (citing Furnes, 362 F. 3d at 712; Hague Convention, art. 12. This affirmative defense must

be proven by a preponderance of the evidence. 22 U.S.C. § 9003(e)(2)(B).

As an initial matter, the Court must determine whether more than a year has elapsed since

the children’s unlawful retention. As Respondent points out, Petitioner alleged in his Petition that

the wrongful retention “began on or about September 6, 2024,” when Respondent sent Petitioner

a text stating that “she was not going to return the Children to Venezuela at the end of the

Children’s visits to Florida, which was to be September 18, 2024.” ECF No. [1] ¶ 2. However, in

his Proposed Findings of Fact and Conclusions of Law, Petitioner recedes from that position and

argues that “[c]ourts have held that the wrongful retention in Art. 12 begins when the agreed date

passes, not when the Mother gave her earlier text notice on September 6, 2024.” ECF No. [47] at

28-29 (citing Chechel v. Brignol, No. 510-cv-164, 2010 WL 2510391, at *7 (M.D. Fla. June 21,

2010). Indeed, “courts have uniformly held that the wrongful retention begins when the agreed

date passes, not when the earlier notice of intent is given.” Chechel, 2010 WL 2510391, at *7.

Pursuant to the travel permit Petitioner signed, Respondent’s wrongful retention of the children

began on September 18, 2024, when Respondent did not board the flights back to Venezuela that

were specifically outlined in the permit. ECF No. [1-2] at 3. Because Petitioner filed his Petition

on September 8, 2025, less than a year has elapsed since the wrongful retention, and Respondent

is foreclosed from asserting her second affirmative defense.

However, even if more than a year had elapsed since the wrongful retention before

Petitioner filed his Petition, the Court would not find that the children are settled in their new

environment. The Eleventh Circuit has stated that a child is considered “settled” under ICARA

and the Convention where:

a preponderance of the evidence shows that the child has significant connections

to their new home that indicate that the child has developed a stable, permanent,

and nontransitory life in their new country to such a degree that return would be

to the child’s detriment . . . . Although all returns will necessarily involve some

level of disruption to the child or children involved, we caution that disruption

should not be considered per se detrimental. Rather, the “settled” inquiry requires

courts to carefully consider the totality of the circumstances.

Fernandez v. Bailey, 909 F.3d 353, 361 (11th Cir. 2018) (internal citations omitted).

Respondent argues that the children’s school records, Respondent’s testimony, and the

testimony of the children’s aunt demonstrate that the children are well-settled in the United

States. ECF No. [49] ¶ 55. However, the evidence offered by Respondent speaks primarily to the

children’s happiness in the United States, not whether they have developed “a stable, permanent,

and nontransitory life in their new country[.]” Fernandez, 90 F.3d at 361. The Court considered

the testimony of Plaintiff’s expert who pointed out that a pending asylum petition does not

provide any status in the United States. As such, the glaring obstacle to finding that the children

are settled in the United States is that, although Respondent has filed an asylum application, ECF

No. [40], there appears to be nothing that would protect the MJ, EJ, or Respondent from being

deported at any moment. See In re Ahumada Cabrera, 323 F. Supp. 2d 1303, 1314 (S.D. Fla.

2004) (stating that, although the child attends school in the United States regularly, “any stability

she may enjoy in the United States is significantly undermined by the Respondent’s uncertain

immigration status”).

In De La Riva v. Soto, the court considered the circumstances of a seven-year-old child

who had been in the United States for two years. 183 F. Supp. 3d 1182, 1192 (M.D. Fla. 2016).

The court acknowledged several factors that weighed in favor of the child being settled in the

United States, acknowledging testimony that child “seems to be doing well in Florida[,]” has lots

of clothes and toys, lives in a private, two-bedroom, two bathroom apartment, consistently

attends school in Florida, where he performs satisfactorily, has learned English, has many

relatives in Florida whom he seems often, and participates in extracurriculars. Id. at 1200-1201.

However, despite all of these factors, the court found that they “are counter-balanced and

outweighed by the fact that [the child’s] financial security in the United States is unstable, and

his stay here may come to an abrupt end, since Respondent is here illegally, without a work

permit, and could be ‘subject to deportation at anytime.’” Id. at 1201 (quoting Lopez v. Alcala,

547 F. Supp. 2d 1255, 1260 (M.D. Fla. 2008)). Therefore, the court concluded it was “preferable

to return [the child] to Mexico now, rather than to risk the Child being forced to return when he

is older and more fully immersed in life in the United States.” Id.

Respondent concedes that “by staying in the United States beyond the expiration date of

her travel visa, she was in violation of that visa[.]” ECF No. [49] ¶ 37. Petitioner’s expert,

Rebeca Sánchez-Roig, who has spent 29 years practicing immigration law,4 testified that filing

an application for asylum does not inherently protect Respondent or the children from

deportation. Although testimony elicited during the hearing indicates that Respondent has family

in Florida and that the children are doing well, the Court is unable to find that the children are

settled in a country where—based on unrebutted testimony—they could be deported at any

moment. c.f. Alvarez Romero v. Bahamonde, No. 20-cv-104, 2020 WL 8459278, at *15 (M.D.

Ga. Nov. 19, 2020) (children without legal status in the United States were settled where

“Respondent’s immigration attorney . . . testified during the hearing [that] neither the children

nor Respondent are under immediate threat of removal”), aff’d sub nom. Romero v. Bahamonde,

857 F. App’x 576 (11th Cir. 2021). Therefore, Respondent has not met her burden as to her

second affirmative defense.

iii. Mature Child

Respondent argues that the “mature child exception” applies to MJ, the older of the two

children, who is ten years old. ECF No. [15] at 9 (citing Mendez Lynch v. Mendez Lynch, 220 F.

Supp. 2d 1347 (M.D. Fla. 2002)). The Hague Convention provides that the Court may “refuse to

order the return of the child if it finds that the child objects to being returned and has attained an

age and degree of maturity at which it is appropriate to take account of its views.” Convention,

art. 13. This must be proven by a preponderance of the evidence. 22 U.S.C. § 9003(e)(2)(B).

“The text of the Convention restricts the age and maturity exception to cases in which

the child states an objection, rather than a mere preference against repatriation.” de Jesus Joya

4 Sánchez-Roig served as an attorney for the United States Department of Homeland Security, Immigration and

Customs Enforcement for 17 years. ECF No. [48-23] at 2. She currently is the Senior Managing Attorney for

Catholic Legal Services, in which capacity she “[p]rovide[s] substantive legal guidance in complex immigration

litigation[.]” Id. at 1.

Rubio v. Alvarez, 526 F. Supp. 3d 1186, 1205 (S.D. Fla. 2021)

The Court has little basis upon which to determine (1) whether MJ has attained an age

and degree of maturity at which it is appropriate to take into account his views or (2) the nature

of his views regarding returning to Venezuela. Although courts have found children as young as

eight to be sufficiently mature for the court to consider the child’s view, nearly all of those courts

had the opportunity to hear from the child directly or from a medical professional or guardian ad

litem who spoke with the child and then presented their findings to the court.5 See de Jesus Joya

Rubio, 526 F. Supp. 3d at 1192 (psychologist evaluated twelve-year-old and prepared expert

report); Colon v. Mejia Montufar, 470 F. Supp. 3d 1280, 1289-90 (S.D. Fla. 2020) (same);

Blondin v. Dubois, 238 F.3d 153, 167 (2d Cir. 2001) (district court and psychiatrist evaluated

eight-year-old), abrogated on other grounds by Golan v. Saada, 596 U.S. 666 (2022); Sadoun v.

Guigui, No. 16-cv-22349, 2016 WL 4444890, at *10 (S.D. Fla. Aug. 22, 2016) (guardian ad

litem interviewed fourteen and twelve-year-olds); Lopez v. Alcala, 547 F. Supp. 2d 1255, 1257

(M.D. Fla. 2008) (seven and nine-year-olds evaluated by psychologist); c.f. Mendez Lynch, 220

F. Supp. 2d at 1361-62 (court accepted undisputed and uncontradicted testimony that nine-year-

old “has attained an age and degree of maturity sufficient to take his opinion into account” and

he “wants to stay in the United States and does not want to go to Argentina.”).

MJ did not testify at the evidentiary hearing. The parties offered contradictory testimony

as to whether MJ is sufficiently mature such that the Court should take his views into account.

Indeed, both parties have a clear interest in whether they describe MJ as sufficiently mature to

5 Petitioner submitted an attestation from an educational psychologist at MJ’s school in Venezuela. ECF No. [48-

17]. The psychologist states she “validate[s] and certif[ies] that the information reflected in the psychological report

issued in March 2022 is reliable and reflects what both parents stated during the previous interviews.” Id. However,

Petitioner did not submit the March 2022 report to the Court. Regardless, an evaluation of MJ in March 2022, before

he was removed to the United States, would not impact the Court’s evaluation of his maturity or wishes as of

December 2025.

make such a decision. However, without having heard from MJ directly or any expert testimony

regarding his wishes, the Court has no basis upon which to make such a determination.

Therefore, Respondent has not met her burden as to the fourth affirmative defense.

Because Petitioner has established a prima facie case for granting the Petition and

Respondent has not met her burden on any of the affirmative defenses, the Petition is granted.

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows:

1. The Petition, ECF No. [1], is GRANTED.

2. The minor children, MJ and EJ, shall be RETURNED to Venezuela.

3. Unless otherwise agreed by the Parties in writing, the children shall be returned to

Venezuela no later than January 5, 2026.

4. Respondent may accompany the children to Venezuela if she so chooses.

5. The children shall not be removed from the Southern District of Florida pending their

return to Venezuela.

6. Attorney Andrew Michael Kassier shall return the children’s passports when he is

satisfied the children will be returned to Venezuela.

7. Pursuant to 22 U.S.C. § 9007, Petitioner is entitled to reimbursement by Respondent

of the necessary expenses incurred during the course of proceedings in this action.

Petitioner shall file an affidavit setting forth the allowable costs and fees he seeks to

recover no later than January 19, 2026.

Case No. 25-cv-24087-BLOOM/Elfenbein

DONE AND ORDERED in Chambers at Miami, Florida on December 19, 2025.

BETH BLOOM

UNITED STATES DISTRICT JUDGE

Copies to: Counsel of Record

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