MEXICO – HERNANDEZ – 2000 (Return ordered) HERNANDEZ v LOPEZ. Mother applies for return from Mexico under the Hague Convention. The court returned the child to the authorities of California. W.M. Hilton foot notes: “It is implicit in actions under The Convention that the courts of all contracting states have equal dignity and that this is an accepted legal position once a country becomes a contracting state. If this were not so then the Convention would not have any validity. The Mexican court recognizes that the sole issue before it is whether or not the child should be returned to San Diego and that the Mexican Court, in this proceeding, could not go into the merits of the case, e.g., “. . . will not decree on the root under cause of the matter regarding custody rights. See Art. 19 of The Convention. The Mexican Court finds that the child can be returned safely to San Diego, despite the unproven allegations of the father that the mother is somehow unfit. This is done by providing a “Safe Harbor” return, by having the California agents available to help with the return”.
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Hernandez and Lopez (Mexico 2000)State of Michoacan 21 Jan 2000
1 International Abduction [MEXICO 2000]
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CONSTITUTIONAL HEARING REFERRED
BY CONSTITUTIONAL
ARTICLES 14 AND 16
21 Jan 2000
Petitioner: Maria Hernandez
and
Respondent: Ramiro Sanchez Lopez
In the City of Apatzingan, Michoacan at twelve noon of
January the Twenty First, of the year Two Thousand with
staff from the First Civil Court for the Judicial District,
which included Attorneys, SUSANA SILVIA GARCES NOBLECIA and
JOSE MIGUEL CARDENAS MAGANA, Judge and Clerk respectively,
in order to comply a public hearing decreed by ruling dated
January the eighteenth of this year.
Likewise present was Attorney CARLOS JACOBO RAMIREZ, in his
legal capacity as Attorney for the minor and family from
this city.
The System For Integral Family Development (Fostering), Mrs
MARIA HERNANDEZ, as well as the Investigating Agent
appointed by the District Attorney from the County of San
Diego, California, FN01 citizen IRMA Z PARTIDA the minor
child, RAMIRO SANCHEZ HERNANDEZ and Attorney FERNANDO
ROTELLIO BECERRA, in his capacity as Legal Representative
for Mr. RAMIRO SANCHEZ LOPEZ, herewith introduces his power
of attorney for Collections and Lawsuits, granted in his
favor on the 20th. day of January of this year before the
Notary Public number 113, Attorney JOSE MAURO CISNEROS
FONSECA, whose legal capacity is herewith acknowledged for
all legal purposes that might arise.
Furthermore, Mr. RAMIRO SANCHEZ LOPEZ is advised, through
his Legal Representative, that on October 29th, of last
year, this legal authority received [a] copy of the official
document number 5833 dated September 23rd., of last year
along with its annexes, same documents that were sent by the
Attorney MIGUEL ANGEL GONZALEZ FELIX, Legal Adviser for the
Department of Family Law from the offices of the Secretariat
of Foreign Affairs, FN02 in order to initiate for
proceedings the application towards the return of the minor,
RAMIRO SANCHEZ HERNANDEZ, that in view of La Hague
Convention on Civil Matters on International Child
Abduction, published in the Official Gazette of the
Federation of March sixth, 1992, One Thousand Nine Hundred
and Ninety Two, the Central Authority from the United States
of America delivered to the above mentioned legal consulting
agency, in compliance with the aforementioned Convention,
the [request for] return of the minor child illegally
abducted from his habitual place of residence, and likewise
informing them on the competent Court hearing the custody
case, which is the Higher Court for the San Diego,
California County, United States, Court before which Mrs
MARIA HERNANDEZ requested the temporary custody of the minor
child, RAMIRO SANCHEZ HERNANDEZ, according to file number DV
007000, but, this First Court on Civil Matters located at
Apatzingan, Michoacan, will not decree on the root under
cause of the matter regarding custody rights, but solely on
its authority to request the prompt return of the minor and
his temporary placement under the authority of the local
System for the Integral Family Development (DIF Spanish
abbreviation), while the legal advising agency arranges for
the return of the minor child before the central authority
in the United States of America. FN03
Once the above procedures are carried out, the right to a
hearing as referred by Articles 14 and 16 of the Political
Constitution of the United Mexican States, FN04 for Mr.
RAMIRO SANCHEZ LOPEZ in order for him to state the best of
his interests, stating as follows:
“In my position as Legal representative for Mr.
RAMIRO SANCHEZ LOPEZ, I oppose the petition of
temporary return of the minor child requested by
Mrs MARIA HERNANDEZ, because she is not fit
according to law. Likewise, because the
aforementioned MARIA HERNANDEZ did not in an
effective way the custody right over the child
RAMIRO SANCHEZ HERNANDEZ Likewise because the
removal of the child was with his consent.
Besides, there is the great risk that if the
child is returned, he will be exposed to a
physical or physical damage that will put the
minor under an intolerable situation, requesting
that I be allowed a period of time to provide
evidence of the above mentioned exceptions.”
Afterwards, the Attorney CARLOS JACOBO RAMIREZ, in his Legal
capacity as Central Authority states that
“. . . in regards to the possible physical and
psychical risk referred to by the legal
representative of Mr. RAMIRO SANCHEZ LOPEZ,
fortunately we have highly trained and
professional personnel, to avoid these risks, as
is the case of the Investigative Agent appointed
to the District Attorney for the Higher Court
for the San Diego, California County in the
United States of America, who will be
responsible, as the representative for the
American authorities for the return of the minor
RAMIRO SANCHEZ HERNANDEZ before the
aforementioned Court, to comply with the legal
order granted by it”. FN05
Afterwards, Ms. IRMA Z. PARTIDA, in her capacity as District
Attorney states the following:
“An investigation has been carried out in San
Diego, California, the mother, MARIA HERNANDEZ
has three other children, besides the minor,
RAMIRO SANCHEZ HERNANDEZ, the children arc well
taken care of, they don’t miss school, there’s
enough food in the house, clothing for the
children and Mrs MARIA HERNANDEZ is attending
school to improve herself, while the children
are out for school. Likewise, I want to state
that few hours after the child, RAMIRO SANCHEZ
LOPEZ was picked up, Mr. RAMIRO SANCHEZ LOPEZ
made a phone call to San Diego California,
threatening Mrs MARIA HERNANDEZ, to the baby
sitter, NORMA LETICIA MONTES and MRS. MARIA
HERNANDEZ’s family. He also sent his cousin
SALVADOR, several times, looking for MRS. MARIA
HERNANDEZ. When he did not find her those
several times be called all night long trying to
talk to Mrs MARIA HERNANDEZ”. FN06
Afterwards and since at this stage of the proceedings, there
is no evidence on the exceptions and pleas to support the
allegations of the legal representative of Mr. RAMIRO
SANCHEZ LOPEZ, and there is no evidence to support that Mrs.
MARIA HERNANDEZ was not complying with the right to custody
at the time the minor was taken, nor there was any evidence
that she authorized at any given moment to the removal of
her minor son.
Likewise, there is no evidence of the child being in great
risk for physically or psychological threat by the
restitution, nor that he will be physically or a
psychologically threatened, nor that the child will be
brought into an intolerable situation since at this point of
the proceedings he does not show reluctance to the presence
of his mother.
Therefore and since this is not the time to provide the
Legal Representative of MR. RAMIRO SANCHEZ LOPEZ, time to
offer and introduce evidence to be heard at a later time,
and considering the nature of the matter and that the
mother’s regular residence is in the United States,
herewith, this Authority decrees the return of the minor
child, RAMIRO SANCHEZ HERNANDEZ, who is under the
responsibility of the Central System for Families’ Integral
Development, through the Attorney General from Apatzingan,
Michoacan, Attorney CARLOS JACOBO RAMIREZ, who has the
knowledge of the aforementioned, and states as follows:
“Since the return of the child; RAMIRO SANCHEZ
HERNANDEZ has been decreed by the Court during
this action, therefore and at this point I am
officially returning the mentioned minor to the
District Attorney appointed by the Attorney
General of the Superior Court of the County of
San Diego, California in the United States of
America, Ms IRMA Z PARTIDA, all of the above, in
order to duly comply with the commitment made by
Mexican authorities, through La Hague Convention
on Civil Matters for the International Child
Abduction, the safe return of the child and this
is all I have to declare.”
Afterwards Ms IRMA Z. PARTIDA declared:
“I receive the minor RAMIRO SANCHEZ HERNANDEZ
from Attorney Jacobo. This is going to be
returned to San Diego, California”.
With the aforementioned declarations this proceedings were
completed followed by the signatures of the people involved.
I CERTIFY.
(Illegible signatures)
07 Feb 2000
Notes by Wm. M. Hilton, CFLS
Attorney At Law
Box 269, Santa Clara, CA 95052-0269
TEL: 408 246 8511 FAX: 408 246 0114
EML: [email protected]
1. Words that are surrounded by square brackets “[ . . .
text . . .]” are supplied by Wm M Hilton and are not
part of the original decision.
2. All footnotes have been added by Wm M Hilton
3. Under the facts given in this case, the right result
was reached in that the allegations of the Father that
the Mother was “unfit” were disposed of by a)
referring them to the California Court and b)
providing a “Safe Harbor” for the return of the child.
It is important to note that the Father was not denied
his right to a custody proceeding, but only postponed
and determined by a California Court.
It must be also understood that it is implicit in
actions under The Convention that the courts of all
contracting states have equal dignity and that this is
an accepted legal position once a country becomes a
contracting state. If this were not so then The
Convention would not have any validity.
——————–
1. See California Family Code Section (CFC) 3130 through
3134.5
2. This would be the Central Authority for Mexico. See
The Convention on the Civil Aspects of International
Child Abduction, done at the Hague on 25 Oct 1980 [The
Convention], Arts. 6 and 7.
3. Here the Mexican court recognizes that the sole issue
before it is whether or not the child should be
returned to San Diego and that the Mexican Court, in
this proceeding, could not go into the merits of the
case, e.g., “. . . will not decree on the root under
cause of the matter regarding custody rights . . .”
See Art. 19 of The Convention.
4. Presumably Articles 14 and 16 give the parties a right
to have a hearing on the merits of a custody dispute.
Here the Mexican court states that these rights will
be protected by having the Superior Court of
California in San Diego conduct the hearing. This is
in keeping with the intent of The Convention, more
succinctly put by the Perez-Vera Report at Section 34
(in part): “The practical application of this
principle requires that the signatory States be
convinced that they belong, despite their differences,
to the same legal community within which the
authorities of each State acknowledge that the
authorities of one of them – those of the child’s
habitual residence – are in principle best placed to
decide upon questions of custody and access.”
5. Here the Mexican Court finds that the child can be
returned safely to San Diego, despite the unproven
allegations of the father that the mother is somehow
unfit. This is done by providing a “Safe Harbor”
return in this case by having the California agents
available to help with the return. See also Foot Note
06, below.
6. See Foot Note 05, above