USA – CA – MARTINEZ – 1997 (Return ordered) (Article 13) MARTINEZ DE ARRENDONDO v SALTO. The mother took the children to California and concealed them. The father applied for their return under the Hague Convention. The children, 11 and 12, were interviewed by a court appointed mental health professional. Based on the interview, the children were ordered returned to Mexico and the father. Mr. Hilton represented the father. The mother’s lawyer filed an appeal as well as an application for an ex parte order to have the children’s returned stayed pending the appeal. The children were ordered returned on Saturday the 8th and the response to the request for a stay was answered on Monday the 10th. The children were already in Mexico.
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De Arrendondo vs Salto (Cal.Super. 1997)Santa Clara County NO. FL065075
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PROLOGUE
The matter before the Superior Court of Californian, County
of Santa Clara, was a wrongful retention. By a stipulated
agreement in the Mexican courts, the father had custody of
the children and the mother had visitation. The children
were taken from Mexico to Los Angeles for a visit in Dec
1995 by their mother and subsequently concealed and later
moved to Santa Clara County, California, about 400 miles to
the North of Los Angeles.
The father filed his request for return with the Mexican
Central Authority on 04 Jan 1996 after he learned that the
mother would not return the children. The children were
located in Oct 1996 and an action was filed in the Superior
Court of California on 28 Jan 1997 by the District Attorney
of Santa Clara County. The children were picked up using a
Warrant in Lieu of a Writ of Habeas Corpus on 28 Jan 1997
and were immediately taken to court. The judge made interim
orders and ordered all parties back for a hearing on the
Petition for Return on 04 Feb 1997.
At the hearing of 04 Feb 1997 the sole issue before the
court was the application of the “age and maturity” test of
Art. 13: “The judicial or administrative authority may also
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.”
The two children in question were 11 and 12 years of age.
The Court had the children seen by a Mental Health
Professional (MHP) from the Court’s Family Court Service
Department who then rendered her findings to the court
orally.
The transcript below sets forth the court proceedings after
the interview and report of the MHP to the court.
Done on 22 Feb 1997 by:
William M. Hilton, CFLS
Attorney At Law
Box 269, Santa Clara, CA 95052-0269
TEL: 408-246-8511 FAX: 408-246-0114
Web Site: http://www.hiltonhouse.com
E-Mail: [email protected]
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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA
BEFORE THE HONORABLE RAYMOND J. DAVILLA, JR., JUDGE
DEPARTMENT 120
Ä–000–Ä
IN RE THE MARRIAGE OF:
MARCO ROMERO MARTINEZ )
DE ARRENDONDO, )
PETITIONER, )
) NO. FL065075
VS. )
VIRGINIA MURILLO SALTO, )
RESPONDENT. )
ÄÄÄ000–Ä
REPORTER’S PARTIAL TRANSCRIPT OF PROCEEDINGS
HELD ON FEBRUARY 4, 1997
ÄÄÄ000-ÄÄ
A P P E A R A N C E S:
FOR THE PETITIONER: WILLIAM M. HILTON, ESQ
FOR THE RESPONDENT: SIDNEY FLORES, ESQ
CENTRAL AUTHORITY DESIGNEE
AND FRIEND OF THE COURT: JANET MURPHY HEIM, D.D.A.
SPANISH INTERPRETER: SAM FABILA
SPANISH INTERPRETER: HEATHER ROJAS
OFFICIAL COURT REPORTER: ANITA L. WOODRUFF, CSR
CERTIFICATE NO. 10776
SAN JOSE, CALIFORNIA
FEBRUARY 4, 1997
PARTIAL TRANSCRIPT:
THE COURT: ALL RIGHT. BACK ON THE RECORD ON THE DE
ARRENDONDO AND SALTO MATTER.
THE RECORD SHOULD REFLECT THAT ALL PARTIES AND COUNSEL ARE
PRESENT.
THE CHILDREN WERE INTERVIEWED SEPARATELY BY MARY LOU
HIPOLITO OF FAMILY COURT SERVICES. SHE REPORTS TO ME THAT
THE CHILDREN ARE VERY BRIGHT AND ENTERTAINING, AND WERE VERY
CALM, AND INDICATED THAT THERE’S NO QUESTION THAT EACH OF
THEM PREFER BEING IN CALIFORNIA. THEY FEEL SAFE HERE. THEY
ENJOY THE SCHOOLS HERE. ON THE OTHER HAND, THEY LOVE THEIR
MOTHER AND FATHER EQUALLY AND UNCONDITIONALLY. AND EVEN MORE
IMPORTANTLY, THEY DID NOT INDICATE A REFUSAL TO RETURN TO
MEXICO. IN FACT, IT WAS THE OPINION OF MS. HIPOLITO THAT
THEY INDICATED IN SO MANY WORDS THAT THEY WOULD ABIDE BY
WHATEVER THE JUDGE FOUND WAS APPROPRIATE.
SO BASED ON THAT, I’M GOING TO MAKE THE FOLLOWING FINDINGS
AND ORDER. I WILL FIND THAT THE TIME PERIOD IN ARTICLE 12
HAS BEEN TOLLED, THAT THE ACTION WAS TIMELY AND PROMPTLY
FILED, AND THAT THERE ARE NO EXCEPTIONS IN ARTICLE 13 WHICH
WOULD APPLY. AND THEREFORE, I WILL ORDER THE CHILDREN
RETURNED TO THE CUSTODY OF THEIR FATHER TO RETURN TO MEXICO,
WHICH WILL BE THE JURISDICTION THAT WILL DETERMINE ANY
FURTHER CUSTODY, VISITATION ISSUES. AND I’D LIKE TO HEAR
FROM COUNSEL WITH REGARDS TO WHEN THE CHILDREN SHOULD BE
TURNED OVER.
MR. FLORES: YOUR HONOR, WE WOULD BE REQUESTING ON BEHALF OF
THE MOTHER TO ALLOW FOR THE CHILDREN AT LEAST TO FINISH
THEIR SCHOOLING HERE FOR THIS YEAR WHICH WOULD END
APPROXIMATELY, I BELIEVE, IN JUNE. SO AT LEAST THAT THEY
WOULD GET THE BENEFIT OF THE EDUCATION THEY HAVE BEEN
RECEIVING HERE, AND MOTHER, OF COURSE, NOT HAVING ANY
DIFFICULTIES WITH REFERENCE TO RETURNING THE CHILDREN TO
FATHER AT THAT TIME FORTHWITH.
THE COURT: COUNSEL?
MR. HILTON: YOUR HONOR, ANTICIPATING THAT THIS MIGHT BE ONE
OF THE POSSIBLE RESPONSES TO THE COURT, I’VE DISCUSSED THIS
MATTER WITH THE FATHER AND HE ASSURES US THAT HE WILL HAVE
NO PROBLEM INTEGRATING THE CHILDREN INTO THE LOCAL SCHOOL
SYSTEM IN MEXICO.
I WOULD ALSO POINT OUT TO THE COURT, UNDER ARTICLE 12 THE
COURT STATES THAT THE AUTHORITY CONCERNED SHALL ORDER THE
RETURN OF THE CHILD FORTHWITH, AND THAT’S UNDER ARTICLE 12
IN THE CONVENTION. SO WE WOULD ASK THAT THERE BE A
REASONABLE PERIOD OF TIME FOR THE CHILDREN TO MAKE THEIR
NECESSARY GOODBYES AND SO FORTH, BUT THEY BE RETURNED TO
MEXICO FORTHWITH.
THE COURT: AND WHAT IS YOUR OPINION AS TO WHAT A REASONABLE
PERIOD OF TIME IS?
MR. HILTON: I THINK I’VE READ TWO OR THREE HUNDRED OF THESE
CASES. IT RANGES FROM TWO OR THREE DAYS TO A TEN-DAY PERIOD,
SOMETHING OF THAT NATURE. YOU HAVE TO UNDERSTAND THAT THE
FATHER IS UP HERE, AND HE HAS LIMITED MEANS TO WHICH HE CAN
STAY AS WELL. AND —
THE COURT: I APPRECIATE THAT.
MR. HILTON: — NOT TRYING TO APPORTION THE BLAME OR
ANYTHING, BUT THAT CONSIDERATION WASN’T GIVEN WHEN THE
CHILDREN WERE TAKEN TO BEGIN WITH.
THE COURT: I THINK THE CHILDREN SHOULD BE RETURNED PROMPTLY,
BUT I DIDN’T INTEND TO DO IT RIGHT NOW. MY THINKING IS THAT
PERHAPS BY THE WEEKEND, BUT I’LL HEAR FURTHER FROM MOM ON
THAT.
MR. HILTON: BY THIS WEEKEND WOULD BE APPROPRIATE, YOUR
HONOR.
MR. FLORES: THAT WOULD BE FINE, YOUR HONOR, WITH MOTHER.
YOUR HONOR, IF I MAY —
THE COURT: YES.
MR. FLORES: WITH REFERENCE TO THE REPORT FROM MS. HIPOLITO,
I TAKE IT THAT THAT REPORT WAS IN WRITING TO THE COURT?
THE COURT: NO, IT WAS NOT IN WRITING.
MR. FLORES: SO THIS WAS VERBAL?
THE COURT: THAT’S CORRECT.
MR. FLORES: AND THE QUESTIONS THAT WERE
PROPOUNDED TO THE CHILDREN WERE VERBALIZED BY YOU TO MS.
HIPOLITO RATHER THAN IN WRITING?
THE COURT: THAT’S CORRECT.
MR. FLORES: OKAY.
THE COURT: SHE’S AVAILABLE FOR CROSS-EXAMINATION IF YOU SO
DESIRE.
MR. FLORES: I WOULD LIKE TO DO THAT, YOUR HONOR, IF I MAY.
THE COURT: WOULD YOU CALL MS. HIPOLITO?
MS. HEIM: EXCUSE ME, YOUR HONOR. WHILE WE’RE WAITING, I HAVE
A PROPOSED ORDER, IF I COULD.
THE COURT: YOU MAY SUBMIT THAT.
MS. HEIM: YES, I’M GIVING A COPY TO COUNSEL.
THE COURT: MADAM REPORTER, WOULD YOU FIND THE PART IN THE
TRANSCRIPT WHERE I RECITED WHAT SHE TOLD ME? SHE SHOULD HEAR
THAT, AND I WANT THAT PART READ BACK.
(WHEREUPON, MS. MARY LOU HIPOLITO ENTERED THE COURTROOM.)
THE COURT: COME FORWARD AND BE SWORN, PLEASE.
MARY LOU HIPOLITO,
BEING CALLED AS THE COURT’S OWN WITNESS, HAVING BEEN FIRST
DULY SWORN, WAS EXAMINED AND TESTIFIED AS FOLLOWS:
THE COURT: WOULD YOU STATE YOUR NAME FOR THE RECORD, PLEASE?
THE WITNESS: MARY LOU HIPOLITO.
THE COURT: MS. HIPOLITO, AT MY REQUEST, YOU INTERVIEWED THE
TWO CHILDREN IN THIS MATTER; IS THAT CORRECT? THE WITNESS:
THAT’S CORRECT, YOUR HONOR. THE COURT: AND YOU DID NOT
RECEIVE ANY WRITTEN INSTRUCTIONS FROM ME, NOR DID YOU ISSUE
A WRITTEN REPORT; IS THAT CORRECT?
THE WITNESS: THAT’S CORRECT.
THE COURT: ALL RIGHT. IN YOUR ABSENCE I RECITED FOR THE
RECORD TO COUNSEL AND THE PARTIES WHAT YOUR REPORT, YOUR
ORAL REPORT WAS TO ME. AND I’M GOING TO HAVE THE COURT
REPORTER READ IT BACK, AND THEN MR. FLORES WANTS TO ASK YOU
SOME QUESTIONS.
THE WITNESS: CERTAINLY.
(WHEREUPON, THE RECORD WAS READ BY THE REPORTER.) WMH FN1
THE COURT: IS THAT AN ACCURATE REPRESENTATION OF WHAT YOU
TOLD ME?
THE WITNESS: YES, IT IS, YOUR HONOR.
THE COURT: MR. FLORES?
MR. FLORES: YES.
CROSS-EXAMINATION
BY MR. FLORES:
Q MS. HIPOLITO, YOU SEPARATED THE CHILDREN WHEN YOU
INTERVIEWED THEM; IS THAT CORRECT?
A I INTERVIEWED THEM SEPARATELY, YES.
Q AND DID YOU INTERVIEW THEM TOGETHER BY ANY CHANCE?
A NO.
Q AND WITH REFERENCE TO YOUR INDICATION THAT THEY BOTH
PREFER BEING IN CALIFORNIA, HOW WAS IT THEY TOLD YOU THAT
THEY PREFERRED TO BE IN CALIFORNIA?
A BASICALLY BY THOSE WORDS. ALSO, THAT THEY ENJOY THE HOME
WHERE THEY NOW RESIDE. IT HAS A TENNIS COURT, IT HAS A
SWIMMING POOL, AND THEY LIKE THE SCHOOL.
Q OKAY. DID YOU ASK THEM IF THEY HAD AN OBJECTION TO GOING
TO MEXICO?
A I DID ASK THEM IF THEY — IF THE COURT DECIDED THEY SHOULD
GO TO MEXICO, WOULD THEY REFUSE TO GO, AND THE CHILDREN
REPLIED THAT, INDIVIDUALLY, THEY DO WHATEVER THE ADULTS SAY.
BUT THEY WOULD PREFER TO STAY HERE.
Q OKAY. BUT YOU NEVER DID ASK THEM WHETHER THEY OBJECTED TO
RETURNING TO MEXICO AT THIS TIME, DID YOU?
A I DID NOT USE THE WORD “OBJECT,” NO.
Q OKAY. AND YOU COUCHED IT IN TERMS OF IF THE JUDGE WERE TO
ORDER YOU TO GO TO MEXICO, YOU WOULDN’T HAVE A PROBLEM?
BASICALLY IS THAT THE WAY YOU COUCHED IT?
A YES, IN THE MANNER IN WHICH I INTERVIEW CHILDREN, YES.
Q AND YOU UNDERSTAND THE CULTURE FROM WHICH THEY COME?
A I CERTAINLY DO.
Q ESPECIALLY WITH REFERENCE TO THE RESPECT FOR AUTHORITY
SUCH AS JUDGES?
A YES, I DO.
Q AND YOU UNDERSTAND THAT IF A CHILD OF MEXICAN HERITAGE,
SUCH AS THESE CHILDREN HERE, IF A JUDGE IS GOING TO ORDER
SOMETHING, THAT THEY USUALLY SAY THEY WILL RESPECT THAT AND
ABIDE BY IT?
A GENERALLY I THINK SO, YES.
Q SO WOULD IT BE FAIR TO SAY, MS. HIPOLITO, THAT YOU REALLY
DIDN’T ASK THE QUESTION AS TO WHETHER OR NOT THEY
THEMSELVES, WITHOUT REFERRING TO ANY AUTHORITY AT ALL, BUT
WHAT THEIR DESIRE WAS WITH REFERENCE TO REMAINING HERE IN
CALIFORNIA OR GOING TO MEXICO?
A I DON’T DO ANY INTERROGATION OF THE CHILDREN. IN MY
CONVERSATION WITH THEM, THEY BOTH STATED INDIVIDUALLY THAT
THEIR PREFERENCE WAS TO STAY HERE IN CALIFORNIA, PRIMARILY
SAN JOSE. THEY DID NOT INDICATE THAT THEY OBJECTED BY SAYING
“I OBJECT” OR “I WOULD NOT GO” AND REFUSE TO GO. THEY DID
NOT SAY THAT.
Q WELL, DID YOU ASK THEM IF THE JUDGE DIDN’T MAKE AN ORDER
AND IF THEY WERE ASKED BY YOU WHAT DO YOU WANT, WHERE DO YOU
WANT TO STAY, THEY TOLD YOU THEY WOULD RATHER STAY IN SAN
JOSE, CALIFORNIA; IS THAT CORRECT?
A WELL, THE CHILDREN SEEMED TO HAVE AN IDEA OF WHAT WE MIGHT
ASK, OR WHAT I MIGHT ASK, BECAUSE THEY HAD SOMEWHAT OF A
PREPARED STATEMENT, ESPECIALLY THE YOUNGEST CHILD, AS TO
WHAT HER PREFERENCE WAS.
Q HOW WAS THAT?
A SAYING IT’S NOT MY FAULT MY PARENTS ARE DIVORCED. THIS IS
WHAT I LIKE, THIS IS WHAT I DON’T LIKE, I’M HAPPIER HERE,
ONE, TWO, THREE. I MEAN, SHE WAS VERY METHODICAL ABOUT HER
PRESENTATION.
Q SO YOU FELT SHE WAS PREPARED, CANNED?
A I WOULD THINK THAT A CHILD HER AGE COMING TO A COURT, NOT
KNOWING THE SYSTEM OF WHAT WAS TO BE ASKED, THAT SOMEHOW
THERE MAY HAVE BEEN SOME PREPARATION. I DON’T KNOW. THEY’RE
VERY BRIGHT CHILDREN, YES.
Q SO IT MIGHT BE THAT YOU COULD BE WRONG, THAT IT’S JUST
THAT SHE’S BRIGHT AND SHE RESPONDED ACCORDINGLY, CORRECT?
A I THINK MAYBE, YES.
Q THEY CERTAINLY WERE NOT CANNED WHEN THEY TOLD YOU — OR
SHE WAS NOT CANNED WHEN SHE TOLD YOU THAT SHE LOVED BOTH HER
MOTHER AND FATHER, CORRECT, OR DID THAT APPEAR TO BE CANNED
TOO?
A I THINK THAT SHE’S VERY TRUTHFUL, THAT SHE LOVES BOTH
PARENTS, YES.
Q AND HOW LONG DID YOUR INTERVIEW TAKE WITH REFERENCE TO
EACH?
A TEN, FIFTEEN MINUTES.
Q DID YOU FEEL THAT THESE CHILDREN WERE BRIGHT AND MATURE IN
THEIR RESPONSES TO YOU?
A I THINK THEY’RE VERY BRIGHT CHILDREN. THEY’RE
AGE-APPROPRIATE MATURITY.
Q AND WOULD YOU SAY THAT THEY’RE OLD ENOUGH, GENERALLY
SPEAKING, AS TO BE MAKING A DECISION AS TO WHERE THEY WOULD
PREFER TO BE, WITH EITHER MOTHER OR FATHER?
A I COULDN’T TELL YOU AT THIS POINT WHETHER THEY ARE OLD
ENOUGH OR MATURE ENOUGH TO MAKE THAT DECISION.
Q OKAY. WHY IS THAT? DO YOU THINK YOU NEED MORE TIME WITH
THEM?
A I WOULD NEED MORE TIME. AND ALSO THEIR SITUATION. THEY’RE
CAUGHT BETWEEN TWO PARENTS. THEY’RE LOYAL TO EACH PARENT. I
CERTAINLY WOULD THINK THAT IT NEEDS MORE TIME, MORE
EXPLORATION.
Q HOW MUCH MORE TIME WOULD YOU NEED TO BE ABLE TO MAKE THAT
KIND OF DETERMINATION?
A I DON’T KNOW WHETHER I COULD MAKE THAT DETERMINATION, OR
HOW MUCH TIME. I REALLY CAN’T GIVE YOU AN EXACT AMOUNT OF .
TIME.
Q HOW MUCH GENERALLY DOES IT TAKE YOU TO DO IT, AS A MATTER
OF PRACTICE?
A IT ALL DEPENDS ON —
Q GIVEN THE AGE OF THESE CHILDREN IN PARTICULAR, I’M SURE
YOU’VE HAD OTHER INSTANCES WHERE YOU’VE INTERVIEWED ELEVEN
AND TWELVE YEAR OLDS?
A SOMETIMES WITHIN AN HOUR, TWO HOURS. SOMETIMES WE DO IT
NOT JUST ONE SESSION BUT MORE.
Q SO IT MIGHT BE THAT THE TEN TO FIFTEEN MINUTES MAY NOT
HAVE BEEN ADEQUATE TIME FOR YOU TO BE ABLE TO GET TO THE
BOTTOM OF IT WITH REFERENCE TO YOU BEING ABLE TO OPINE AS TO
THE LEVEL OF MATURITY OF BOTH GIRLS; IS THAT CORRECT?
A AS I STATED BEFORE, THEY ARE AGE-APPROPRIATE MATURE. I
THINK THE INFORMATION I NEEDED — THE TIME WAS ADEQUATE FOR
THE INFORMATION THAT I NEEDED.
Q BUT YOU’RE TELLING ME, THOUGH, THAT IN ORDER FOR YOU TO
DETERMINE MATURITY LEVEL WITH REFERENCE TO ABILITY TO MAKE A
DECISION FOR THEMSELVES AS TO WHETHER TO STAY, YOU WOULD
NEED MORE TIME TO BE ABLE TO EVALUATE THAT ASPECT OF
MATURITY; IS THAT CORRECT?
A I BELIEVE THAT I ANSWERED YOUR QUESTION WHETHER THE
CHILDREN SHOULD MAKE A DECISION WHETHER TO STAY OR TO GO. I
THINK THAT AT THEIR AGE, WE CERTAINLY WILL TAKE INTO
CONSIDERATION THEIR INPUT, BUT I DON’T THINK THAT THEY’RE
MATURE ENOUGH TO MAKE A DECISION AS TO WHICH PARENT THEY
SHOULD (SIC) PREFER TO LIVE WITH.
Q WHAT’S THAT BASED UPON?
A WELL, THESE ARE ELEVEN AND TWELVE YEAR OLDS. THEY’RE — AT
THIS POINT WITH THEIR LOYALTY AS TO BOTH PARENTS, THEY’RE
EXPRESSING A DESIRE TO RESIDE WHERE THEY ARE ENJOYING THE
AMENITIES. THEY CERTAINLY ENJOY BEING WITH THEIR MOTHER AND
THE YOUNGER SIBLING. BUT TO MAKE A DECISION AS TO WHERE THEY
SHOULD RESIDE PERMANENTLY, I DON’T KNOW WHETHER THESE
CHILDREN WOULD BE PREPARED TO MAKE THE DECISION AT THIS
POINT AT THAT AGE
Q AND THAT’S BECAUSE YOU HAVEN’T HAD TIME ENOUGH WITH THEM
IN THE INTERVIEW PROCESS; IS THAT CORRECT?
A I’M MERELY EXPRESSING MY OPINION.
Q AND I’M JUST TRYING TO GET YOUR OPINION FROM YOU.
A THAT’S MY OPINION, YES.
Q THAT YOU HAVE NOT HAD ENOUGH TIME TO INTERVIEW THEM IN
ORDER TO BE ABLE TO MAKE THAT OPINION?
A I DON’T KNOW WHETHER I WOULD HAVE THE SAME OPINION IF I
SPENT MORE TIME WITH THEM OR NOT.
Q OKAY. AND GENERALLY SPEAKING, YOU USUALLY TAKE UP TO AN
HOUR TO INTERVIEW THESE CHILDREN WHEN ISSUES LIKE THIS COME
UP WITH REFERENCE TO PREFERENCE AS TO MOTHER OR FATHER,
CORRECT?
A NOT ALWAYS. SOMETIMES. IT ALL DEPENDS ON THE CASE, DEPENDS
ON THE CHILDREN, YES.
Q I’M TALKING GENERALLY SPEAKING WITH ELEVEN TO TWELVE YEARS
OLDS, USUALLY AN HOUR?
A SOMETIMES, YES.
MR. FLORES: NOTHING FURTHER, YOUR HONOR.
THE COURT: ANY QUESTIONS?
MS. HEIM: NO QUESTIONS.
MR. HILTON: NO QUESTIONS.
THE COURT: YOU CAN BE EXCUSED. THANK YOU, MS. HIPOLITO.
THE WITNESS: THANK YOU, YOUR HONOR.
THE COURT: ALL RIGHT. IN TERMS OF THE RETURN DATE, THE COURT
WOULD PROPOSE SUNDAY, FEBRUARY STH (SIC) AT NOON. IS THAT
CONVENIENT FOR EVERYONE?
MR. HILTON: YES. THE FATHER’S AGREEABLE TO THAT TIME, YOUR
HONOR.
THE COURT: IS THAT CONVENIENT FOR MOM?
MR. FLORES: THAT WILL BE FINE, YOUR HONOR, FOR MOM.
FOR THE RECORD, YOUR HONOR, WE WOULD BE TAKING THE POSITION
THAT IT APPEARS, ESPECIALLY FROM THE STANDPOINT OF THIS TYPE
OF CASE, I THINK1 THAT EVEN THOUGH IT’S A “HAGUE” CASE, THAT
GENERALLY SPEAKING WHEN WE HAVE OUR OWN CHILDREN HERE IN THE
UNITED STATES THAT ARE EVALUATED BY FAMILY COURT SERVICES,
THAT USUALLY THERE IS A LITTLE MORE TIME GIVEN TO ALLOW FOR
INVESTIGATION AND THE OPINION BY THE FAMILY COURT SERVICES
PERSONNEL TO BE ABLE TO RENDER A DECISION TO THE COURT TO
ALLOW FOR THE COURT TO MAKE A JUST AND REASONABLE DECISION.
MY CONCERN AT THIS POINT, YOUR HONOR, IS THAT I BELIEVE THAT
TEN, FIFTEEN MINUTES WITH EACH CHILD WAS PROBABLY
INAPPROPRIATE TO THE EXTENT THAT WE HAVE, ONE, THE
INTERVIEWER INDICATING THAT SHE BELIEVED THAT THEY WERE AGE
MATURE APPROPRIATE (SIC), BUT SHE DID NOT FEEL THAT SHE
COULD MAKE AN EVALUATION WITH REFERENCE TO THE MATURITY
ASPECTS OF THE CHILDREN IN BEING ABLE TO DETERMINE FOR THEIR
OWN BEHALF WHETHER OR NOT THEY HAVE THE ABILITY TO MAKE A
SOLID, GOOD BUSINESS — OR EXCUSE ME, GOOD BASIS DECISION AS
TO WHICH PARENT THEY’RE TO REMAIN WITH.
LASTLY, YOUR HONOR, I DO BELIEVE THAT GIVEN THAT INCIDENT,
AND ESPECIALLY GIVEN THE FACT THAT WE HAVE CHILDREN WHO’LL
NOW BE TAKEN FROM THIS JURISDICTION TO ANOTHER, THAT IT
WOULD HAVE BEEN APPROPRIATE TO ALLOW FOR ADDITIONAL TIME FOR
THE SCREENER TO REALLY GET TO THE TRUE MATURITY LEVEL,
DECISION-MAKING OF THESE CHILDREN, BECAUSE THAT’S WHAT THE
HAGUE ALLOWS FOR THE COURT TO DETERMINE. AND WE HAVE THAT
LACKING IN THIS CASE.
LASTLY, THE COURT HEARD HER QUESTION TO THE CHILDREN, AND
THE QUESTION WAS RELATED TO WOULD THE CHILDREN HAVE A
PROBLEM WITH YOU DIRECTING THEM TO GO BACK TO MEXICO. AND I
WILL SUBMIT TO YOU, YOUR HONOR, ANYONE THAT KNOWS OF MEXICAN
CHILDREN THAT ARE RAISED IN A GOOD FAMILY, AS THESE CHILDREN
HAVE BEEN, THEY’RE TAUGHT TO RESPECT AUTHORITY. AND IT WOULD
BE INAPPROPRIATE FOR THEM TO SAY THAT THEY WOULD NOT ABIDE
BY THE COURT’S ORDER. TO UTILIZE THE RESPONSE THAT THEY
WOULD HAVE NO OBJECTION TO THE COURT ORDERING THEM TO BE
SENT TO MEXICO IS A CONVOLUTION OF ARTICLE 13’S PURPOSE AND,
I BELIEVE, INAPPROPRIATE, YOUR HONOR.
MR. HILTON: YOUR HONOR, MAY I BRIEFLY RESPOND TO THAT?
THE COURT: SURE.
MR. HILTON: JUST AS A WAY OF PREFACE, YOUR HONOR, MY LEGAL
PRACTICE IS LIMITED TO ISSUES OF INTERNATIONAL CHILD CUSTODY
AND INTERSTATE CHILD CUSTODY. IN DOING THIS, I’VE READ
NUMEROUS CASES AND DECISIONS FROM AUSTRALIA —
MR. FLORES: EXCUSE ME, YOUR HONOR, WITH REFERENCE TO THIS
ARGUMENT, I CAN, AS WELL, ESPOUSE MY EXPERTISE. I WOULD
PREFER FOR HIM, YOUR HONOR, TO SUBMIT ARGUMENT IF HE HAS
ARGUMENT, AS OPPOSED TO TELLING US HOW MANY CASES HE’S READ.
MR. HILTON: I WOULD LIKE TO CONTINUE, YOUR HONOR. I’VE READ
CASES ON THIS PARTICULAR ISSUE ON AGE AND MATURITY, AND THE
PARTICULAR METHOD THAT THE COURT HAS USED SEEMS TO BE IN
ACCORD WITH THE DECISIONS OUT OF CANADIAN, BRITISH,
AUSTRALIAN, AND TO SOME EXTENT SWEDISH COURTS. THIS IS NOT A
CUSTODY PROCEEDING. WE’RE LOOKING FOR A SUMMARY PROCESS.
IT’S RARE INDEED DO WE HAVE — EVEN HAVE THE EVALUATION
DONE. IN MOST CASES THE DECISION IS JUST MADE BASED ON THE
AGE OF THE CHILD, AND THAT’S ABOUT IT.
MR. FLORES: EXCUSE ME, YOUR HONOR. I’M GOING TO OBJECT TO
THIS WHOLE LINE —
THE COURT: THIS IS ARGUMENT. HE’S NOT CITING AUTHORITY.
MR. HILTON: YOUR HONOR, I BELIEVE THIS IS NOT OUT OF TUNE
WITH THE WAY THAT THIS IS NORMALLY DONE IN THE INTERNATIONAL
ARENA. ONE OF THE INTERESTING THINGS ABOUT THIS TREATY,
WHICH IS ENFORCED IN 40 SOME ODD COUNTRIES, THEY ALL USE THE
SAME LANGUAGE, AND THE CONCEPT HERE IS TO RETURN THE
CHILDREN TO THE HABITUAL RESIDENCE, SO IF THERE ARE ISSUES,
THE COURT HAS THE JURISDICTION HERE IN MEXICO TO RESOLVE
THAT ISSUE.
MR. FLORES: YOUR HONOR, IF I MAY, JUST FOR ARGUMENT SAKE, IN
THE AUTHORITY’S MOVING PAPERS, THERE’S REFERENCE IN THE
MINUTES WITH REFERENCE TO WHAT MR. HILTON HAD SUBMITTED AS A
FRIEND OF THE COURT IN THOSE MINUTES, AND THOSE ARE ATTACHED
TO THE INITIAL PLEADINGS THAT WERE FILED BY THE CENTRAL
AUTHORITY. IN THE MINUTES THERE’S A REFLECTION AS TO SOME
REPRESENTATIVES OF A COUNTRY ARGUING ABOUT THE DELAYS THAT
WOULD TAKE PLACE WITH REFERENCE TO COURTS REQUIRING
EVALUATIONS, SO THAT I BELIEVE IT’S A MISSTATEMENT OF EVEN
THE PAPERS THAT THE COURT HAS BEFORE THEM THAT THERE ARE
INSTANCES WHERE YOU HAVE EVALUATIONS TAKING PLACE. AND IN
FACT TO THE EXTENT THERE’S BEEN ARGUMENT AMONG THE HAGUE
PEOPLE, THAT THERE’S BEEN ACTUAL DELAY WHERE THERE’S BEEN
THREE, FOUR MONTHS DELAY IN GETTING REPORTS BACK TO THE
COURT, AND THEREFORE CURTAILING THE EXPEDITIOUS ASPECT OF
THE DESIRE OF THE HAGUE. BUT I WOULD SUBMIT THAT, YOUR
HONOR.
MR. HILTON: NO FURTHER COMMENTS, YOUR HONOR.
THE COURT: WELL, I NOTE THAT IN ARTICLE 16 THERE’S NOT EVEN
TO BE AN INVESTIGATION ON THE MERITS OF CUSTODY UNTIL
THERE’S A DETERMINATION THAT I’M NOT GOING TO SEND A CHILD
BACK, SO — AND I HAVEN’T MADE THAT DETERMINATION.
SO MY PRIOR FINDINGS AND ORDER WILL STAND, AND I HAVE SIGNED
THE ORDER MODIFYING IT TO INDICATE THE RETURN DATE WOULD BE
ON FEBRUARY 8TH AT NOON, AND YOU CAN ACCOMPANY
PETITIONER/FATHER, UNLESS THERE’S SOME OTHER APPROPRIATE
PERSON?
MS. HEIM: THAT’S FINE. THANK YOU, YOUR HONOR.
MR. HILTON: THANK YOU.
MR. FLORES: THANK YOU, JUDGE.
(WHEREUPON, THE PROCEEDINGS WERE CONCLUDED.)
STATE OF CALIFORNIA )
COUNTY OF SANTA CLARA )
I, ANITA L. WOODRUFF, HEREBY CERTIFY: THAT THE FOREGOING IS
A FULL, TRUE AND CORRECT TRANSCRIPT OF THE PROCEEDINGS HAD
IN THE ABOVE-MENTIONED ACTION TAKEN FEBRUARY 4, 1997;
THAT IT IS A FULL, TRUE AND CORRECT TRANSCRIPT OF THE
EVIDENCE OFFERED AND RECEIVED, ACTS AND STATEMENTS OF THE
COURT, ALSO ALL OBJECTIONS OF COUNSEL AND ALL MATTERS TO
WHICH THE SAME RELATE;
THAT I REPORTED THE SAME IN STENOTYPE TO THE BEST OF MY
ABILITY, BEING THE DULY QUALIFIED AND ACTING OFFICIAL COURT
REPORTER OF SAID COURT, AND THEREAFTER TRANSCRIBED THE SAME
INTO TYPEWRITING AS HEREIN APPEARS.
DATED: February 19, 1997
/s/ Anita L. Woodruff
ANITA L. WOODRUFF
CSR NO. 10776
OFFICIAL COURT REPORTER
——————–
1. The record read by the reporter is the statement made
by the court at the very beginning of the transcript.
===========================================================
EPILOGUE
On 06 Feb 1997 Sidney C. Flores, Esq., counsel for Ms.
Salto, filed a NOTICE OF APPEAL on the basis that Family
Court Services ” . . . failed to provied an adequate
investigation in that the minor children of this action were
not interviewed properly and were not given the opportunity
to object to the removal from the status quo custody of
Defendant.”
Simultaneously Mr. Flores moved the trial court for an ex
parte order staying the return order pending the appeal.
The application for the ex parte order was submitted to the
court at about 10:00 a.m. on Friday, 07 Feb 1997. A local
rule requires that before the Court acts on an ex parte
order, opposing counsel must be given 24 hours notice.
Since there was an intervening weekend, the local rules
would have the response submitted on Monday, 10 Feb 1997, at
10:00 a.m., which it was.
In the meantime 08 Feb 1997 came around and, pursuant to the
order of the court (which had not been stayed), the children
left California for Mexico with their father.
By a telephone call from the District Attorney’s office a
few days later it was learned that the children and their
father were back in Mexico and a fiesta was in progress.
From a notice received from the Court of Appeal it would
appear that the appeal is still before the court, at least
as of 13 Feb 1997.
Done on: 22 Feb 1997 by William M. Hilton, CFLS.