Nadarajan M. v. Sandra W. (Cal.App. 2 Dist 1 Div 2002)B155305
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Filed 20 Nov 2002
NOT FOR PUBLICATION
California Rules of Court, rule 977(a), prohibits courts and
parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule
977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
B155305
(Super. Ct. No. BH 001509
NADARAJAN M.,
Plaintiff and Appellant,
v.
SANDRA W.,
Defendant and Respondent.
APPEAL from an order of the Superior Court of Los Angeles County.
Aviva K. Bobb, Judge. Affirmed.
Law Offices of Leslie M. Jordon and Leslie M. Jordon for
Plaintiff and Appellant.
William M. Hilton for Defendant and Respondent.
Bill Lockyer, Attorney General, Manuel M. Medeiros, State
Solicitor General, Robert R. Anderson, Chief Assistant Attorney
General, Pamela C. Hamanaka, Assistant Attorney General, Linda C.
Johnson and Elaine F. Tumonis, Deputy Attorneys General, as
Amicus Curiae for California Attorney General.
001 Appellant, a South African, petitioned for the return of
his minor child to South Africa under the Hague Convention on the
Civil Aspects of International Child Abduction (October 25, 1980,
51 Fed. Reg. 10,494, 10,498 (1986), hereinafter “the Convention”
or “the Hague Convention,” implemented by the International Child
Abduction Remedies Act, 42 U.S.C. 11601 et seq.). The superior
court denied the petition after finding the child’s mother, to
whom the South African courts had granted sole custody of the
child, did not violate appellant’s custody rights by removing the
child to the United States. We affirm.
BACKGROUND
002 Mother Sandra W. and Father Nadarajan M. were married in
South Africa in 1992. Their son Tyron M. was born in South
Africa in 1994. The couple obtained a divorce in South Africa in
1996, when Tyron was a year and a half. The divorce order,
issued by the Supreme Court of South Africa, Durban FN01 and
Coast Local Division, awarded Mother sole legal and physical
custody of Tyron. The divorce order granted Father visitation on
alternate weekends.
003 During the divorce proceedings, the South African Supreme
Court issued an interlocutory “Interdict” or restraining order
against Father. The restraining order prohibited Father from
removing Tyron from Mother’s custody, “save for the purposes of
exercising his rights of access to the said child,” from
“assaulting, interfering with, threatening, or harassing” Mother
and Tyron, and from communicating with Mother except in writing.
In her declaration filed in this proceeding, Mother explained the
restraining order was issued after Father had held a gun to
Tyron’s head in order to prevent Mother from leaving with Tyron.
Mother attested that before their separation, Father was
unemployed, “consumed excessive quantities of alcohol and was
physically and verbally abusive to me and the child.” The South
African Supreme Court “reaffirmed” or reissued the restraining
order upon entering the final divorce decree awarding sole
custody to Mother on July 5, 1996.
004 According to Mother’s declaration, Father continued to
harass and threaten her after the divorce: “His harassment and
constant telephone threats at work finally caused me to give
notice at work. The problem of [Father’s] harassment was also
compounded by the fact that both his brother and sister are
police officers, stationed at the Verul[a]m Police Station . . .
making it exceedingly difficult to obtain law enforcement
assistance to enforce the existing Interdict against violence and
harassment.”
005 Mother further stated that in July or early August 1996,
Father failed to return Tyron to her after a weekend visit. The
Verulam police, according to Mother, were uncooperative in
securing Tyron’s return. Mother sought assistance from her local
police in Sydeham, who helped secure Tyron’s return to Mother’s
custody.
006 In September 1996, according to Mother, Father again
refused to return Tyron after a visit. This time, however,
Father took Tyron to Johannesburg, and threatened that Mother
would not see Tyron again unless she joined them there. After
Mother arrived in Johannesburg, Father held her against her will
for two weeks, during which time he beat and assaulted her. She
described her ordeal as follows: “The next day, afraid of what
[Father] may do, I left on the first bus out of Durbin for
Johannesburg w[h]ere he was waiting for me at the bus station
(without the baby) when I arrived. He took me to his friend’s
house in Bedfordview where he had the baby. [Father] did not
turn over the baby to me as I had hoped and anticipated.
Instead, he kept me hostage and held me captive for two weeks
where he repeatedly beat and assaulted me. I had no way of
contacting anyone during this time. Finally, after two weeks of
torture, [Father] decided that we should all leave together
threatening to shoot me and the baby if I did not obey him. We
returned by air from Johannesburg to Durbin. When we arrived at
the Durbin airport, he released me but once again refused to let
the baby go.”
007 Tyron remained in Father’s custody in violation of the
Supreme Court’s custody order. According to Mother, the Verulam
police again failed to help obtain Tyron’s return. Through
Mother’s attorney’s efforts, the kidnapping case was transferred
to the Tongaat Police station, but that “investigation proceeded
endlessly without arrest or prosecution.”
008 While he continued to withhold Tyron from Mother, Father
filed a false child neglect report against Mother with the
Verulam Child and Family Welfare Society (“Society”). The
Society opened an investigation and obtained an order on July 11,
1996, from a Children’s Court Commissioner of Child Welfare
detaining Tyron in Father’s protective care.
009 According to Mother, on November 20, 1996, while Tyron was
detained in Father’s protective care, Father kidnapped Mother at
gunpoint and held her at his mother’s house in Verulam, where he
and Tyron were staying. Mother’s brother, who witnessed the
abduction, reported the crime to the Verulam police. The Verulam
police went to the grandmother’s house twice to investigate, but
twice left without seeing Mother after being told “that all was
in order.” Finally, the police returned to the grandmother’s
house accompanied by Mother’s brother, “who insisted on speaking
to [Mother] directly. Sgt. Daniel Govender came in and was
shocked at how badly swollen my face was from [Father’s] beatings
and said to [Father] that he had instructions from the station
commander to take me back to the police station. When I arrived
at the police station, [Father’s] sister took me aside and
pleaded with me not to open a charge against her brother. But, I
did. I also opened a charge against her for obstructing the ends
of justice. All these cases were forwarded to the Tongaat Police
station. Yet again, nothing has ever come of them and they are
still pending for all I know. Still, Tyron remained with his
father as the police refused to remove the child from [Father]
claiming to act on a Children’s Welfare Order that the child is
to remain in his care pending investigation. My child was not
returned to my custody despite my efforts and the efforts of my
lawyer until June 27, 1997.”
010 On November 1, 1996, Mother moved to Westville, a short
distance from her former home in Overport. On November 28, 1996,
Mother married her present husband, Ivan W. Mother and Ivan W.
lived at the Westville address until November 1997, when they
moved a few miles to Morningside. Mother contends she gave
Father her new addresses, but Father denies this.
011 After completing its investigation of Father’s false child
neglect report, the Society filed a Social Worker’s Report that
vindicated Mother. The report stated that although Father’s
relatives “felt that [Mother] was irresponsible and unfit to”
care for Tyron, Father’s relatives had “alienated themselves
from” Mother due to “their anger over her marriage to a relative.
This has been facilitated by [Father’s] contact with them, and
his own agenda to tarnish [Mother’s] image so as to gain
access/custody of” Tyron. The social worker received reports
that Mother “took good care of the child.” The report found,
however, “that [Father] has led an unstable lifestyle, and
continues to do so though to a lesser degree [] (1) he has
associated with persons of disrepute. [] (2) consumes liquor,
and becomes intoxicated. [] (3) been involved in altercations
with various persons. [] (4) he is aggressive in speech and
behavior. [] (5) has been violent and abuse to [illegible]
married, and thereafter. [] (6) has not shown responsibility to
his family. [] (7) has not been in stable employment.”
012 The report explicitly found Father to be “unfit to have
the child concerned in his care.” The report found “it would be
in the child’s interest to be restored to the care of his mother
. . . . She is in a stable marriage, and is able to care for the
child concerned. . . .” The report stated the Society would
provide Father with “reconstruction services” and would monitor
any visits with Tyron “if and when he is in [Father’s] care.”
013 At the June 27, 1997, Children’s Court hearing, the judge
adopted the report’s findings. The judge admonished Father for
having badly used the Children’s Court in an improper attempt to
overturn the Supreme Court’s custody order. The Children’s Court
returned Tyron to Mother’s sole custody after making findings
consistent with the report’s determination that Father was
violent, dangerous, and an unfit parent. The court ordered
Father to surrender his firearm to the police and warned him that
he “should be charged under the Intimidation Act.” The court
stated it was “disturbed in that it feels that it is being used
by you young man badly after you having taken this child away
from the mother, to then come to this Court and then attempt to
have custody of the child instead of going back to the Supreme
Court, who originally made the first order. [] What is of more
disturbing to this Court is to find that you do it in such a
violent way . . . . [T]his Court, . . . , and the officers of
the Court, have the highest respect for Mrs. Morar [of the
Society]. [] I, in fact, have had personal dealings with [Mrs.
Morar] since 1981, and I do not doubt any word that this lady
will say, and it shocks me to find that you had the audacity to
try and convince the Court that the lady would lie, or that the
lady would even deliberately do anything because she dislikes
you. [] This does not go down very easily with the Court.
This in fact tells against you despite all the efforts of your
attorney to assist you there. [] The Court finds that this
child is in need of care and must be returned to the mother in
terms of the Order of the Supreme Court. [] You have your
rights. You have an attorney now. You must consult your
attorney and you must abide by what he says. You must not play
God, Mr. M[.] There is only one God, and it is not you. You
will abide by what the Courts say, and the Courts will be guided
by social workers, understand?” FN02
014 Although the June 27, 1997, Children’s Court order did not
mention Father’s visitation rights, the Social Worker’s report
(which the court indicated it would follow) recommended that
visitation, if and when it occurred, must be monitored. Father,
however, never exercised his visitation rights after the June 27
hearing. Father contends this was because he did not know
Mother’s address. Mother, however, states he must have known her
address because his attorney had come to her home after the
hearing “to pressure me to allow liberal contact between [Father]
and the child despite the Children’s Court order.” Father,
however, claims he had to hire a private investigator to find her
address, but Mother had moved each time before he could contact
her.
015 On November 10, 1998, Mother moved with her husband and
Tyron to America. Mother concedes she “did not inform [Father]
of my departure.” It is undisputed that Father neither consented
to Tyron’s departure from South Africa nor signed Tyron’s
passport application.
016 Father contends that under South African law, despite his
non-custodial parent status, he retained a statutory right of
guardianship that required, in the absence of a court order, both
parents to consent for Tyron, while a minor, to marry, be
adopted, leave the country, apply for a passport, or alienate or
encumber any immovable property or any right to immovable
property. (South Africa Guardianship Act 192 of 1993.)
017 According to Father’s declaration, he suspected in the
late fall of 1998 that Mother had moved to America with Tyron.
At that time, Father phoned Mother’s parents’ residence in Los
Angeles and recognized Mother’s voice, but she hung up on him.
Thereafter, Father “contacted Barbara Hechter[, the Chief Family
Advocate] of the South African Central Authority[, and] asked her
to initiate legal proceedings for the return of my son. . . . ”
FN03 In May 1999, Hechter forwarded Father’s Hague Convention
application for Tyron’s return to the United States National
Center for Missing and Exploited Children. In July 2000, the
District Attorney of Los Angeles County filed Father’s Hague
Convention application with the United States Department of
State.
018 On September 13, 2000, Father filed the present petition
in superior court seeking an order to compel Tyron’s return to
South Africa, alleging Tyron had been wrongfully removed in
violation of Father’s right of custody under the Hague
Convention. The petition alleged each of the prerequisites for
return had been met: (1) Father had a right of custody at the
time of removal; (2) Father was exercising his right of custody
at the time of removal; (3) Tyron was a habitual resident of
South Africa at the time of removal; and (4) Father had filed the
Hague petition within a year of the wrongful removal. Father
contended that despite his non-custodial parent status, his
statutory right to object to Tyron’s removal from the country
constituted a “right of custody” for purposes of the Hague
Convention.
019 In opposition to the petition, Mother contended that
Father, as a non-custodial parent, had no right and was
exercising no right of custody at the time of Tyron’s removal.
Mother alleged that a non-custodial parent’s guardianship right
to object to a child’s removal does not constitute a “right of
custody” that would trigger the remedy of automatic return under
the Hague Convention. In addition, Mother argued the removal was
not wrongful because the Children’s Court had suspended Father of
his guardianship right to object to Tyron’s removal by virtue of
its June 27, 1997, order naming Mother as Tyron’s sole custodial
parent and _s_o_l_e_ _g_u_a_r_d_i_a_n. FN04
020 In reply, Father submitted the declaration of Barbara
Hechter, who disagreed that the June 27 order had suspended
Father’s implied statutory guardianship rights. The June 27
Children’s Court order, according to Hechter, could not have
overturned the Supreme Court divorce decree which, by its silence
with regard to Father’s guardianship rights, had implicitly left
intact Father’s statutory guardianship rights. According to
Hechter, the Children’s Court lacked jurisdiction to suspend
Father’s statutory guardianship rights. Hechter stated that the
June 27 order “required the return of physical custody of the
minor child to [Mother]. This Order, however, did not and could
not `overturn’ the Divorce Decree of the Supreme Court of South
Africa. Only the Supreme Court has jurisdiction to amend an
order about custody, control and access to a child pursuant to
the `Amendment of Court Orders of Children’, Rule 13.2. . . .
Therefore, [Father] retained his joint guardianship rights.”
Hechter further stated that under South African law, the June 27,
1997, order necessarily expired two years after it was entered.
(Tyron, however, left the country _b_e_f_o_r_e the two-year period had
elapsed.)
021 Father also submitted a supplemental declaration denying
that he had physically abused Mother.
022 On October 31, 2000, the superior court continued the
hearing on Father’s petition for six months “to permit the
parties to pursue any remedies they might have within the
jurisdiction of South Africa.”
023 The record shows that Father attempted to instigate two
criminal child abduction proceedings against Mother in South
Africa. Mother stated in her declaration: “I have since learned
that both actions have been dismissed as unmeritorious. The
first claim was dismissed on February 27, 2000 pursuant to a
written statement of the Manager for the Missing Persons Bureau,
stating that the child and the mother are currently residing in
the United States of America, that the child is legally in the
custody of his mother, and that the mother and the child should
be left alone to continue with their lives without being harassed
all the time. A true and correct copy of that letter is attached
hereto as Exhibit 4 and incorporated herein by reference. The
second effort, which I believe [Father] commenced in or about
August, 2000 was finalized and closed on September 12, 2000. A
copy of a letter from P. Harrilal, the Unit Commander, Child
Protection Unit, declining to prosecute the case and closing it
is attached hereto as Exhibit 5 and incorporated herein by
reference.”
024 Exhibit 4, dated February 27, 2002, is a bulletin issued
by Captain S. J. van Deventer, Manager of the South African
Police Service Bureau for Missing Persons. The bulletin states
that Tyron is not a missing person and, “[a]s far as can be
ascertained the child and his mother SANDRA W[.] [are] currently
residing in the United States of America. The court records in
South Africa also show[] that the child is legally in the custody
of his mother. [] . . . Attached please find a copy of the
final divorce agreement where custody of the child is given to
the plaintiff (Sandra) Par. 2. [] . . . I also include a copy
of an order of a Children’s Court dated 27 June 1997 w[h]ere it
was ordered again that the child must be restored into the
custody of [Mother], plus the findings of the said Court. [] .
. . I hope that these documents will clarify the situation and
that the said individuals will be left alone to continue with
their lives without being harassed all the time.”
025 Exhibit 5, dated September 29, 2000, is a bulletin issued
by Captain P. Harrilal, Unit Commander of the Durban Police Child
Protection Unit. The bulletin states that Father’s abduction
complaint was rejected by “the Senior Public Prosecutor who
declined to prosecute on 2000-09-12. [] . . . The matter is
considered finalized by this office.”
026 On November 5, 2001, the superior court rejected Father’s
Hague petition. The superior court concluded Father’s
guardianship right to object to Tyron’s removal from South Africa
does not constitute a right of custody under the Hague
Convention. The superior court also found that Mother’s removal
of Tyron “was not wrongful in that it was acknowledged that
[Mother] had sole custody of the minor child.”
027 After the petition was denied, Father requested a
statement of decision under Code of Civil Procedure section 632.
The court denied the request, finding the statute to be
inapplicable to motion hearings. The court stated it “did not
make a child custody decision, but rather ruled on whether this
court had jurisdiction to make such a decision.”
028 On appeal, Father challenges the superior court’s legal
finding that his guardianship right to object to Tyron’s removal
from South Africa does not constitute a custody right under the
Hague Convention. Father also challenges the superior court’s
refusal of his request for a statement of decision.
DISCUSSION
030 The Hague Convention, to which the United States and South
Africa are both signatories, was adopted in an effort “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, as well as to secure protection for rights of access.”
(Hague Convention, Preamble, 51 Fed.Reg. at 10,498.) “The
Convention rests on the principle that a child’s country of
`habitual residence’ is best placed to decide upon questions of
custody and access. [Citation.]” (_C_r_o_l_l_ _v_._ _C_r_o_l_l (2d Cir. 2000)
229 F.3d 133, 137, fn. omitted.)
A. _T_h_e_ _R_i_g_h_t_ _o_f_ _C_u_s_t_o_d_y_ _v_._ _t_h_e_ _R_i_g_h_t_ _o_f_ _A_c_c_e_s_s_
031 In this case, the South African Supreme Court granted
Mother sole custody of Tyron, and granted Father a right of
access (visitation on alternate weekends). The South African
Children’s Court, however, after finding Father to be a violent
and unfit parent, indicated it would follow the Society’s
recommendation of monitored visitation.
032 The Hague Convention provides a remedy of return where the
child is wrongfully removed in breach of the petitioner’s right
of custody (as opposed to a right of access), provided the
petitioner was actually exercising (or would have been
exercising) the right of custody at the time of removal. The
remedy of return is not available under the Hague Convention for
a removal that is merely in breach of the petitioner’s right of
access to the child.
033 A removal is only wrongful under the Hague Convention if
it was in breach of a right of custody. A removal in breach
solely of a right of access is not wrongful under the Hague
Convention. One purpose of the Hague Convention is to deter
parents from forum shopping abroad for more favorable custody
rulings: “In order to `preserve the status quo and to deter
parents from crossing international boundaries’ to secure a more
favorable forum for the adjudication of custody rights, _B_l_o_n_d_i_n
_v_._ _D_u_b_o_i_s, 189 F.3d 240, 246 (2d Cir. 1999) (internal quotation
marks omitted), the Convention provides for the return of
children `wrongfully removed to or retained in any Contracting
State.’ Hague Convention, art. 1, 51 Fed. Reg. at 10,498. A
removal or retention is to be considered `wrongful’ where: []
`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
and 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. art. 3, 51
Fed.Reg. at 10,498 (emphasis added). Rights of custody `may
arise in particular 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.’ Id.” (_C_r_o_l_l
_v_._ _C_r_o_l_l, supra, 229 F.3d at p. 137.)
034 Rights of custody are defined under the Convention as
“`rights relating to the care of the person of the child and, in
particular, the right to determine the child’s place of
residence.’ Id. art. 5, 51 Fed. Reg. at 10,498. [] Rights of
custody are distinguished from rights of access, which are
defined in the Convention as `the right to take a child for a
limited period of time to a place other than the child’s habitual
residence.’ Id. The Convention provides recourse in the event a
child is removed from an habitual residence in breach of access
rights, but those remedies do not include an order of return to
the place of habitual residence. See id. art. 21, 51 Fed.Reg. at
10,500. To vindicate the breach of access rights, the Convention
authorizes signatory nations to use one or more remedies (short
of return) to `promote the peaceful enjoyment of access rights,’
and to `take steps to remove, as far as possible, all obstacles
to the exercise of such rights.’ Id. One such remedy is a writ
ordering the custodial parent who has removed the child from the
habitual residence to permit, and to pay for, periodic visitation
by the non-custodial parent with access rights. See id. art. 26,
51 Fed. Reg. at 10,500, _V_i_r_a_g_h_ _v_._ _F_o_l_d_e_s, 415 Mass. 96, 612
N.E.2d 241, 246-50 (1993) (ordering a custodial parent who
brought a child to the United States in frustration of a
Hungarian access decree to pay the travel costs of visitation).
The Convention makes plain that unless the petitioner has rights
of custody, a court has no authority to order return.” (_C_r_o_l_l_ _v_.
_C_r_o_l_l, supra, 229 F.3d at pp. 137-138.)
B. _F_a_t_h_e_r_’_s_ _B_u_r_d_e_n_ _o_f_ _P_r_o_v_i_n_g_ _a_ _R_e_m_o_v_a_l_ _i_n_ _V_i_o_l_a_t_i_o_n_ _o_f_ _C_u_s_t_o_d_y
_R_i_g_h_t_s
035 “In the United States, a petitioner claiming wrongful
removal under the Convention may bring a petition for an order of
return in a United States district court or in a court of any
state. See 42 U.S.C. . . . 11603(a), (b). The court has the
authority only to determine whether the child’s removal was
`wrongful’ within the meaning of the Convention, i.e., whether
the removal `was in breach of custody rights’ held by the
petitioner. See id. 11603(e)(1)(A). The petitioner bears the
burden of proving `wrongful removal’ by a preponderance of the
evidence. See id. 11603(e)(1). If the petitioner shows that
the child was wrongfully removed, the court must order the
child’s return to the country of habitual residence unless the
respondent demonstrates that one of four narrow exceptions apply.
See id. 11601(a)(4); _B_l_o_n_d_i_n, 189 F.3d at 245-46 (discussing
enumerated exceptions). The court is not permitted to consider
the merits of underlying custody disputes. See id.
11601(b)(4).” (_C_r_o_l_l_ _v_._ _C_r_o_l_l, supra, 229 F.3d at p. 138.)
036 Accordingly, in this case Father had the burden of
proving, by a preponderance of the evidence, that Tyron was
wrongfully removed in breach of Father’s custody rights.
C. _F_a_t_h_e_r_ _F_a_i_l_e_d_ _t_o_ _E_s_t_a_b_l_i_s_h_ _a_ _V_i_o_l_a_t_i_o_n_ _o_f_ _H_i_s_ _C_u_s_t_o_d_y_ _R_i_g_h_t_s
037 In this case, the South African Supreme Court granted
Mother sole custody of Tyron. Given Father’s inability to rely
upon a court order to establish his right of custody, Father
argued below that his statutory right to object to Tyron’s
removal (under the South African Guardianship Act 192 of 1992)
constituted a custody right under the Hague Convention.
038 The South African Guardianship Act 192 of 1993 states that
a guardian has the right to object to, among other things, a
child’s removal from the country of habitual residence. Custody
decrees or agreements sometimes contain similar language, called
a _n_e_ _e_x_e_a_t clause, stipulating that both parents must consent to
the child’s removal from the country. In this case, the parties’
divorce order did not contain a _n_e_ _e_x_e_a_t clause. Father contends
that under South African law, the Supreme Court’s failure to
mention the right of guardianship in his divorce order means he
retained his right to object to Tyron’s removal under the
Guardianship Act.
039 Assuming that Father possessed guardianship rights when
the divorce order was entered, we turn to Mother’s response that
Father’s guardianship rights were suspended by the Children’s
Court order naming her as Tyron’s sole custodial parent and _s_o_l_e
_g_u_a_r_d_i_a_n. Mother argued below that the Children’s Court, by
failing to strike the word “guardian” from the preprinted order,
had granted Mother temporary sole custody and guardianship over
Tyron.
040 In reply, Father did not dispute the import of the
Children’s Court’s failure to strike the word “guardian” from the
order, but rather attacked that court’s jurisdiction to rule on
the matter. According to Hechter’s declaration, the June 27
Children’s Court order “did not and could not `overturn’ the
Divorce Decree of the Supreme Court of South Africa. Only the
Supreme Court has jurisdiction to amend an order about custody,
control and access to a child pursuant to the `Amendment of Court
Orders of Children’, Rule 13.2. . . . Therefore, [Father]
retained his joint guardianship rights.”
041 Hechter’s declaration, however, does not carry the force
of law. Other than Hechter’s declaration, Father has provided no
legal authority to support his position that the June 27
Children’s Court order suspending his right of guardianship is
void for lack of jurisdiction. As far as we are aware, he has
not obtained a reversal of that order on direct appeal, nor has
he filed a collateral action attacking the order. On the
contrary, apart from Hechter’s declaration, every indication in
the record weighs against Father’s claim that the June 27
Children’s Court order is invalid.
041 The record shows, without contradiction, that South
African authorities have twice rejected Father’s efforts to have
Mother prosecuted for removing Tyron in violation of Father’s
access and guardianship rights. The South African police have
declined to proceed with Father’s child abduction allegations
against Mother. Captain van Deventer, Manager of the South
African Police Service Bureau for Missing Persons, explicitly
stated in Exhibit 4 that the final divorce order and the June 27
Children’s Court order and findings supported the dismissal of
Father’s child abduction allegations. In addition, according to
exhibit 5, the Senior Public Prosecutor has refused to prosecute
Mother for child abduction.
042 In these proceedings, the superior court even granted
Father a six-month stay (which stretched to a year) to pursue any
available remedies in South Africa. At the end of that one-year
period, Father produced no new evidence to support his claim that
the removal was wrongful or in breach of his rights of custody
under South African law. Given the absence of such evidence, we
conclude the superior court properly determined, based on the
court orders, exhibits, and declarations contained in the record,
that Tyron was not removed in violation of Father’s custodial
rights. Even assuming that guardianship rights are the
equivalent of custodial rights for Hague Convention purposes,
substantial evidence supports the finding that Father had no
guardianship or custodial rights when Tyrone was removed to this
country.
D. _N_o_ _R_e_m_e_d_y_ _o_f_ _R_e_t_u_r_n_ _f_o_r_ _V_i_o_l_a_t_i_o_n_ _o_f_ _t_h_e_ _R_i_g_h_t_ _o_f_ _A_c_c_e_s_s
043 Given that Tyron’s removal was not wrongful because it did
not violate Father’s custodial rights, we conclude the superior
court properly refused to order Tyron’s return to South Africa.
“The Convention makes plain that unless the petitioner has rights
of custody, a court has no authority to order return.” (_C_r_o_l_l_ _v_.
_C_r_o_l_l, supra, 229 F.3d at p. 138.)
E. _T_h_e_ _C_r_o_l_l_ _D_e_c_i_s_i_o_n
044 Father contends the superior court erroneously relied upon
the _C_r_o_l_l decision in denying his petition. In _C_r_o_l_l_ _v_._ _C_r_o_l_l,
supra, 229 F.3d 133, the court rejected the notion that a child’s
removal in violation of a _n_e_ _e_x_e_a_t clause constituted a violation
of the non-custodial parent’s custody rights. _C_r_o_l_l held that a
_n_e_ _e_x_e_a_t clause does not confer custodial rights upon a
non-custodial parent. _C_r_o_l_l held “that rights of access do not
constitute rights of custody within the meaning of the Hague
Convention, even when coupled with a _n_e_ _e_x_e_a_t clause.” (Id. at
p. 135.)
045 Father contends _C_r_o_l_l was wrongly decided and represents a
minority view because many other jurisdictions have reached a
different conclusion. We need not decide whether we agree or
disagree with _C_r_o_l_l, however, because in this case, Father’s
guardianship rights were suspended by the June 27 Children’s
Court order granting Mother sole custody and guardianship of
Tyron. Even if we were to disagree with _C_r_o_l_l_’_s holding, it
would make no difference here because in this case, there was no
_n_e_ _e_x_e_a_t clause in effect at the time of Tyron’s removal.
Accordingly, we express no opinion regarding whether Father’s
guardianship rights, had they not been suspended, constituted
rights of custody within the meaning of the Hague Convention.
FN05
F. _S_t_a_t_e_m_e_n_t_ _o_f_ _D_e_c_i_s_i_o_n
046 Father requested a formal statement of decision under Code
of Civil Procedure section 632. The superior court invited
briefing on the matter. Father contended in his papers below
that judicially created exceptions exist to the traditional rule
that a statement of decision is not required after a ruling on a
motion. Citing In re _M_a_r_r_i_a_g_e_ _o_f_ _B_a_l_t_i_n_s (1989) 212 Cal.App.3d
66, 80, and _I_n_ _r_e_ _M_a_r_r_i_a_g_e_ _o_f_ _S_. (1985) 171 Cal.App.3d 738, 747,
Father contended the exception exists in child custody matters,
due to their exceptional importance. Father requested findings
on three specific issues: (1) whether Father’s right of
guardianship to object to Tyron’s removal constituted a right of
custody under the Hague Convention; (2) whether Father was
exercising his right of custody at the time of removal; and (3)
whether the removal was wrongful.
047 The superior court refused to apply the exception here,
finding that it had made no custody rulings that would require
the issuance of a statement of decision.
048 The superior court was correct. Its authority under the
Convention was simply to determine whether a wrongful removal had
occurred in breach of Father’s custody rights. (_C_r_o_l_l_ _v_._ _C_r_o_l_l,
supra, 229 F.3d at pp. 137-138.) The superior court, by finding
that no wrongful removal had occurred, did not change or modify
any existing custody order. Accordingly, no statement of
decision was required in this case.
049 Father contends that even if a statement of decision was
not required, the court retained the discretion to issue one.
Here, however, it is impossible to find the denial of a formal
statement of decision constituted an abuse of discretion. The
superior court’s ruling was plainly and fully stated in its
minute order of November 5, 2001, which incorporated by reference
the “findings and order as more fully reflected in the notes of
the Court Reporter[.]” There were no disputed material facts.
G. _O_t_h_e_r_ _I_s_s_u_e_s
049 Mother contends, and the Attorney General agrees, that if
we reverse the superior court’s ruling, we should remand for
further proceedings (in the first instance) on whether return is
inappropriate due to other circumstances. FN06 Father contends
such a remand would be prejudicial because of the delay that
would be required. In light of our resolution of this case, we
do not reach this issue.
DISPOSITION
050 We affirm the order denying Father’s petition for Tyron’s
return to South Africa under the Hague Convention. Mother is
awarded her costs.
_N_O_T_ _T_O_ _B_E_ _P_U_B_L_I_S_H_E_D.
ORTEGA, J.
We concur:
SPENCER, P.J.
VOGEL (Miriam A.), J.
Footnotes
1. The record contains references throughout to both “Durban”
and “Durbin.” We similarly use both spellings in this
opinion as reflected in the record.
2. Although Father has filed declarations in this proceeding
denying the abuse, this is not the proper forum in which
to challenge the South African court’s fidings, which we
accept as final.
3. According to her declaration, Barbara Hechter “was the
Chief Family Advocate for the South African Central
Authority” in May 1999.
4. Mother’s opposing papers below stated in part: “THE ORDER
OF A CHILDREN’S COURT: REGULATION 11 is a preprinted
order which provides several alternatives within each
paragraph which may be circled or crossed-out as the case
requires. The Order at issue here has a series of hand
written interlineations, signed by P.P. Weber, the
Commissioner of Child Welfare. This form contains
references to `guardian’ in two separate places (line 5
after the place for `full name and address’ and on line 2
of subparagraph (a) of the Order itself. Each reference
is preceded by an (asterisk). The reference to which the
asterisk refers appears at the bottom of the form and
states `*Delete whichever is not applicable.’ There is no
deletion in either place.”
5. The California Attorney General has filed an amicus brief
expressing his disagreement with the _C_r_o_l_l decision. The
amicus brief states in part, “Insofar as the trial court
adopted the mechanical analysis in _C_r_o_l_l rather than the
more expansive understanding of the phrase `rights of
custody’ as contemplated by the Hague Convention, the
trial court erred.”
The Crolls were married in Hong Kong, where they had a
daughter in 1990. The Crolls were divorced in Hong Kong
in 1998. The Hong Kong court awarded the mother sole
custody and granted the father a right of reasonable
access. The custody order contained a _n_e_ _e_x_e_a_t clause
prohibiting the child’s removal, while a minor, from Hong
Kong without either the father’s consent or leave of
court.
The mother in _C_r_o_l_l violated the _n_e_ _e_x_e_a_t clause by
bringing the daughter to America without leave of court or
the father’s consent. The mother instituted child custody
proceedings in a New York state court. The father filed a
Hague Convention petition in the Southern District of New
York, seeking the daughter’s return to Hong Kong.
The district court in _C_r_o_l_l held that the _n_e_ _e_x_e_a_t clause
gave the father a right of custody within the meaning of
the Hague Convention, and ordered the child’s immediate
return to Hong Kong. The circuit court reversed, however,
finding the _n_e_ _e_x_e_a_t clause did not create a right of
custody within the meaning of the Convention. The father,
the circuit court held, possessed only a right of access
and not a right of custody, notwithstanding the veto power
created by the _n_e_ _e_x_e_a_t clause. (_C_r_o_l_l_ _v_._ _C_r_o_l_l, supra,
229 F.3d at pp. 138-144.) The court stated in part: “[A]
_n_e_ _e_x_e_a_t clause does not transmute access rights into
rights of custody under the Convention. _N_e_ _e_x_e_a_t or not,
Mr. Croll’s rights include none of the powers (or burdens)
of a custodial parent, and therefore are properly
classified as rights of access. The Convention affords
him several remedies for trespass on those rights, but
return of the child to Hong Kong is not one of them.”
(Id. at pp. 143-144.)
Other courts, however, have reached a contrary conclusion
and there is no consensus available. (See cases cited in
_C_r_o_l_l_ _v_._ _C_r_o_l_l, supra, 229 F. 3d at p. 143.) As noted in
_C_r_o_l_l, “Although the dissent claims `strong support’ in
caselaw for its point of view, . . . the dissent itself
confirms that no consensus is available: the cases
worldwide are few, scattered, conflicting, and sometimes
conclusory and unreasoned.” (Ibid.) “The lack of uniform
interpretation (or application) of the Convention can be
illustrated another way. The rate of return for children
wrongfully removed to the United States from other
countries is approximately 90 percent. See Mary A. Ryan,
Assistant Sec. for Consular Affairs, U.S. Dep’t of State,
Prepared Statement Before the House Committee of
International Relations (Oct. 14, 1999) available in 1999
WL 9009860 (F.D.C.H.) at 3. The rate of return for
American children wrongfully removed from the United
States to a foreign country, however, is less than 30
percent. See Thomas A. Johnson, Prepared Statement Before
the House Committee on International Relations (Oct. 14,
1999) available in 1999 WL 909869 (F.D.H.C.) at 30. . . .
.” (Ibid.)
6. Under Article 12 of the Convention, for example, if the
proceedings are commenced more than one year after the
child’s removal, the child need not be removed if the
child is now settled in the new environment. In this
case, the petition was filed more than one year after
Tyron’s removal. Father contends the proceeding was
nonetheless initiated within a year after removal because
his application was forwarded to the United States
authorities within a year of removal.
In addition, Article 13 of the Convention provides an
exception to the return requirement where it is
established that the return will place the minor child at
grave risk of physical harm or in an intolerable
situation. Mother contends another exception exists under
Article 13 where the minor is so deeply rooted in the new
country that the return would be psychologically or
emotionally damaging.