USA – CA – CSOKA – 2000

Csoka v Superior Court (Scott-Robson)(Cal.App. 4 Dist 3 Div 2000)
4 International Abduction (USA 2000)
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NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE

Civil Number G026988
(Super. Ct. No. OOFLOOO13)
03 Mar 2000

KATALIN CSOKA,
Petitioner,

v.

ThE SUPERIOR COURT OF
CALIFORNIA, COUNTY OF ORANGE,
Respondent;

STEPHEN EDWARD SCOTT-ROBSON,
Real Party in Interest.

OPINION

001 Original proceedings; petition for a writ of
supersedeas to stay enforcement of a judgment of the
Superior Court of California, County of Orange, David S.
Weinberg, Temporary Judge. (Pursuant to Cal. Const., art.
VI, 21.) Writ denied.

Jeffrey W. Doeringer for Petitioner.

No appearance for Respondent.

Stephen Edward Seott-Robson, in pro. per., for Real Party in
Interest.

Bill Lockyer, Attorney General, David P. Druliner, Chief
Assistant Attorney General, Gary W. Schorts, Senior
Assistant Attorney General, Esteban Hernandez and Raquel M.
Gonzalez, Deputy Attorneys General and Tony Rackauckas,
Disirict Attorney, David Wagner, Deputy District Attorney
assisting the United States Central Authority for Hague
Cases.

Dinnebier King & Werts, Jennifer J. King for the Minor.

002 This is a proceeding under the Hague Convention on the
Civil Aspects of international Child Abduction. The superior
court has ordered the return of a minor child, Robert Csanad
Csoka-Robson, to his natural father (real party in interest)
pursuant to a judgment which has been considered and left
standing by the Supreme Court of Sweden. The father has
stipulated to return the child to Sweden (where he will
finish the school year, probably in June) and that further
proceedings may occur in that country’s courts.

003 The mother has appealed the judgment of the superior
court (No. 0026992) and in this proceeding petitions this
court for a writ of supersedeas and invokes the 30-day
automatic stay provisions of Code of Civil Procedure section
917.7. We asked the parties, including appointed counsel for
the minor, to brief two issues: whether section 917.7 is
preempted by the Hague Convention’s “most expeditious
procedures available” language and whether petitioner can
make a prima facie showing that she is likely to prevail on
appeal. We also set a hearing on the matter for this date.

004 Having read and heard the submissions of the attorneys
for all interested parties, we now rule as follows:
Assuming, without deciding, that Code of Civil Procedure
section 917.7 is not preempted by the Hague Convention, we
find no reasonable probability that petitioner will prevail
on appeal on her claim that the child will be exposed to “a
grave risk of harm” if the order is affirmed, or on any of
her other claims. We also find that she has an adequate
legal forum in the Swedish courts and that is where any
further proceedings in this matter should be presently
resolved, since it is clear that the child was wrongfully
removed from Sweden, which is that country “in which [he]
was habitually resident immediately before the removal. . .
.” (Hague Conv., Arts. 3(a), (b).)

005 The petition for writ of supersedeas is DENTED. The
automatic stay of Code of Civil Procedure section 917.7, if
not preempted, is ordered dissolved forthwith. The minor and
real party in interest are awarded costs for. this writ
proceeding against petitioner. (42 U.S.C.  11607, subd.
(b)(3).) Petitioner and the Central Authority shall bear
their own costs for this writ proceeding. Counsel assisting
the Central Authority shall return the passports of the
minor and real party in interest forthwith.

CROSBY, J.

WE CONCUR:

SILLS, P.J.

BEDSWORTH, J.

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31 Mar 2000

Wm M Hilton Comment:

This decision looks to the language of California Code of
Civil Procedures 917.7 (CCP 917.7):

“The perfecting of an appeal shall not stay
proceedings as to those provisions of a judgment
or order which award, change, or otherwise
affect the custody, including the right of
visitation, of a minor child in any civil
action, in an action filed under the Juvenile
Court Law, or in a special proceeding, or the
provisions of a judgment or order for the
temporary exclusion of a party from a dwelling,
as provided in the Family Code. However, the
trial court may in its discretion stay execution
of these provisions pending review on appeal or
for any other period or periods that it may deem
appropriate. Further, in the absence of a writ
or order of a reviewing court providing
otherwise, the provisions of the judgment or
order allowing, or eliminating restrictions
against, removal of the minor child from the
state are stayed by operation of law for a
period of seven calendar days from the entry of
the judgment or order by a juvenile court in a
dependency hearing, or for a period of 30
calendar days from the entry of judgment or
order by any other trial court. The periods
during which these provisions allowing, or
eliminating restrictions against, removal of the
minor child from the state are stayed, are
subject to further stays as ordered by the trial
court or by the juvenile court pursuant to this
section. [Amended 1993 ch. 219, 1999 ch. 346.]”

There is a “tension” between CCP 917.7 and the language of
Art. 12 of The Convention:

“Where a child has been wrongfully removed or
retained in terms of Article 3 and, at the date
of the commencement of the proceedings before
the judicial or administrative authority of the
Contracting State where the child is, a period
of less than one year has elapsed from the date
of the wrongful removal or retention, the
authority concerned shall order the return of
the child forthwith.

The judicial or administrative authority, even
where the proceedings have been commenced after
the expiration of the period of one year
referred to in the preceding paragraph, shall
also order the return of the child, unless it is
demonstrated that the child is now settled in
its new environment.

Where the judicial or administrative authority
in the requested State has reason to believe
that the child has been taken to another State,
it may stay the proceedings or dismiss the
application for the return of the child.”

The Convention requires that the child be returned
“forthwith” and it could be said that his language pre-empts
CCP 917.7.

While this may be the case in jurisdictions outside of the
United States, one must consider the language of 42 U.S.C.
11604(b):

“LIMITATION ON AUTHORITY.-No court exercising
jurisdiction of an action brought under section
4(b) may, under subsection (a) of this section,
order a child removed from a person having
physical control of the child unless the
applicable requirements of State law are
satisfied.”

Note the specific language: “. . . unless the applicable
requirements of State law are satisfied.

Under CCP 917.7 California state law requires a thirty (30)
day stay of the removal of a Ne Exeat order, unless (as was
the case here) the Court of Appeal orders otherwise.

The Court of Appeal made no ruling on whether or not CCP
917.7 applies under The Convention. Instead the Court of
Appeal used the power granted to it by the express language
of CCP 917.7 to enter its order that eliminated the
automatic stay.

It could be argued that since the Court of Appeal had
specifically asked that this issue be addressed and then
(without deciding this point) used the specific provisions
of CCP 917.7 to eliminate the stay, that the requirements of
CCP 917.7 apply even when the matter is an action under The
Convention.

While this may seem contra to the “forthwith” language of
Art. 12 of The Convention, it has a certain amount of logic
in that it permits an application to the Intermediate Court
of Appeal while holding the child in the jurisdiction. If
this were not the case then an appeal would be pointless
since even if one were successful it would be a hollow
victory as the child would have been long gone from the
forum.