USA – CA – NAVARRO – 1989

Court: SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OFPLACER

Number: 86481

Applicant: MANUEL NAVARRO

and

Respondent: BARBARA RAYE BULLOCK

Date: 01 Sep 1989
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SUPERIOR COURT OF CALIFORNIA

COUNTY OF PLACER

MANUAL NAVARRO, No. 86481

Petitioner, ORDER AFTER HEARING

V.

Barbara Raye Bullock,

Respondent.

__________________________/

PRELIMINARY STATEMENT

This is an action for the return of children who have been
abducted by their mother from Spain to the United States. The
petition is brought by the children’s natural father under the
provisions of the Hague Convention on the Civil Aspects of Child
Abduction, and its implementing legislation in the United States,
42 U,S.C. 11601 et.seq. Pursuant to the Hague Convention, Father
applied to the United States Department of State for assistance in
locating his children. The children’s whereabouts were determined,
and the District Attorney for the County of Placer located the
children and detained them. This court being apprised of the
detention of the children, ordered them to be detained in the
Placer County children’s shelter, and ordered that a petition be
filed in this court on August 24, 1989, and that a hearing on the
further detention of the children would be held on that date.

On August 24, 1989, the petition was duly filed pursuant to
the terms of the Hague Convention, Petitioner Manuel Navarro
appeared with his attorney Robert Davis, Respondent appeared with
her attorney Grant Macomber (special appearance), and the children
appeared through their attorney Stanley Fortner. The District
Attorney for Placer County also appeared. The Court ordered the
children detained in the custody of David Brose, inspector for the
District Attorney of Placer County, and further ordered an
psychological evaluation of the children by Dr. Eugene Roeder. The
court granted provisional visitation to father (Petitioner), and
ordered the deposit of his passport, and the children’s passports
as security for the performance of the court’s orders. The court
granted mother supervised visitation with the children.

Hearing on the petition was set for August 31, 1989. At the
hearing Petitioner was represented by his attorneys William Hilton
and Robert Davis. Respondent was represented by Gregory Emery. The
minor children were represented by Stanley Fortner.

For the reasons stated herein, the court will order that the
children be returned in the custody of their father to the country
of Spain, where they shall report to the appropriate Central
Authority according to the provisions of the Hague Convention.

FACTS

Husband and Wife were married in Madrid, Spain on August 5,
1972. Thereafter, the parties moved to Riverside, California,
where husband attended the University of California, Riverside.
Maria Teresa Navarro-Bullock was born October 17, 1977 in the
United States. The parties moved to Spain in 1979, and the second
child of this union, Pablo Manuel Navarro-Bullock, was born in
Spain on October 4, 1979. From October 1979 to January, 1984,
husband and wife lived in La Laguna, Canary Islands, Spain.

All previous proceedings dealing with the dissolution of the
parties marriage and the custody of their children have been
conducted in the Court of First Instance, of the City and District
of La Laguna, Spain. There has never been an attempt by either
party, prior to the instant action, to seek intervention of the
Courts of this State or the United States.

The parties separated in 1984, and father was granted
provisional custody of the children in the family home, with the
mother being granted visitation on all summer and other holidays,
and other liberal visitation with the children.

On April 15, 1985, the court revoked wife’s visitation with
the children because she had wrongfully retained and concealed the
children after the expiration of her Easter holiday visitation
with them. It was subsequently learned that she had removed the
children to the United States. The children remained in the United
States with their mother until September, 1986, when all three
returned to Spain pursuant to an agreement which was reached
regarding visitation and custody. The crux of that agreement was
that husband and wife would reverse their respective positions
regarding the custody and visitation of the children, and that the
wife would have the children during the school year, and the
husband would have the children on the holidays, summer, and
alternate weekends. The parties also agreed to share joint legal
Custody. This agreement was approved by the court in Spain. Mother
was to live in Santa Cruz de Tenerife with the children, and
Father was to live in La Laguna. Mother was Granted permission to
take the children to California for one month during the summer of
1988, and one month in the summer every other year thereafter. The
children were to attend school in Spain.

A final divorce decree was entered in December, 1987. In
April 1987, mother attempted to abduct the children a second time.
She was assisted by her church minister, who drove her to the
airport. Father, who had learned of the attempted abduction,
obtained a court order restraining the mother from leaving Spain
with the children, and police at the airport on the island of
Tenerife prevented the mother’s attempt at wrongful removal of the
children.

On August 1, 1988, Mother took the children to California
pursuant to the terms of the Spanish court order allowing her to
do so. The Spanish court issued its order allowing the children to
obtain passports, and allowing the mother free exit from the
country. The children were to be returned to Spain by September 1,
1988. Instead, mother retained the children in violation of the
Spanish court order, concealed the children in California, and
allowed the father no contact with his children whatsoever. Father
learned of the abduction when he attempted to exercise his normal
visitation with the children which would have occurred had they
been properly returned. The mother’s wrongful retention of the
children commenced on September 1, 1988 and continued until August
24, 1989.

Mother located herself in Applegate, California with the
children. The children had virtually no contact with their father.
The father did not know where the children had been taken, except
that he found that they had been taken to the United States. His
contacts with his former mother-in-law established that the
children were fine, but their location was not disclosed. Father
sent letters and small presents to the children in care of the
mother-in-law. Father received no response from the mother or the
children.

Mother left the country of Spain according to the advise of
her attorney, one Carmen Sevilla Gonzalez. Both mother and an
independent witness testified that the attorney told the mother
that she was crazy to have returned to Spain with the children,
and that she should leave. Mother testified that she was living on
the equivalent of $600.00 per month [FN 1] (72,000 pesedas),
35,000 pesedas in child support, 37,000 for her employment as a
“kind of teacher.” Mother contended that she was unable to obtain
more suitable employment even though she has a Master’s Degree.

Father is employed as an associate professor at the
University of La Laguna. He testified that he gave his wife not
only the support which was ordered, but that he gave her
additional support as was necessary and assisted her in finding
employment, and in finding a residence in Spain after her return
in 1986. Neither party has apparently remarried.

Dr. Eugene Roeder was appointed by the court for the purpose
of examining the children to determine the relationship which the
children had with the father and the mother. Dr. Roeder testified

[FN 1. According to the Foreign Exchange market, one U.S. Dollar
is the approximate equivalent of 121 Pesedas as of August 31,
1989.]

that Maria, psycholoically frail, would be damaged by a removal
from her mother, and that significant bonding with mother was
present. Maria was not seemingly bonded with her father, although
insufficient time for a complete evaluation by Dr. Roeder left the
reasons for, such lack of bonding a matter of speculation. Dr.
Roeder was of the opinion that removal of Maria to the custody of
her father to return to Spain would be harmful, to the point
risking permanent psychological damage.

Dr. Roeder was of the opinion that Pablo would be less
effected by such a move back to Spain, although there would
probably be some psychological damage. Dr. Roeder made it clear
that separation of the children would probably be damaging to both
children, since they were greatly bonded to each other, and
obtained support and sustenance from each other. Dr. Roeder stated
that in the event that the mother was to move back to Spain with
the children, that the effects of any such change would be far
less damaging to the children. Mother testified that in the event
the court ordered the children to return to Spain, that she would
return with the children to Spain to live.

The children were not able to articulate reasons why they did
not want to return to their father, but rather articulated some
reasons why they did not want to return to Spain. An important
reason for not wanting to be returned to the father was that such
a move necessarily meant that.the children would have to remain in
Spain. Dr. Roeder opined that ft is possible that Maria had
undergone a grieving process over being separated from her father,
and had adjusted her life without him. Maria’s (and to some extent
Pablo’s) idea of fantasy cure for the situation was for her father
to just “go away”. The children’s drawings of the family excluded
the father.

Maria clearly expressed to Dr. Roeder the fact that she did
not want to go back to Spain. Pablo expressed the same desire.
Neither were able to articulate any concrete reasons for not
wanting to go with their father, except that such meant that they
would be required to return to Spain.

DISCUSSION

Article 12 of the Convention provides, in part, as follows:

“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.

Article 13 of the Convention provides as follows:

“Notwithstanding the, provisions of the preceding Article,
the judicial or administrative authority of the requested
State is not bound to order the return of the child if the
person, institution or other body which opposes its return
establishes that –

(a) the person, institution or other body having the
care of the person of the child 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; or

(b) there is a grave risk that his or her return would
expose the child to physical or psychological harm or
otherwise place the child in an intolerable situation.

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.

In considering the circumstances referred to in this Article,
the judicial and administrative authorities shall take into
account the information relating to the social background of
the child provided by the Central Authority or other
competent authority of the child’s habitual residence.”

The burden of proving the wrongful retention is upon the
Petitioner, who must prove this element by a preponderance of the
evidence. 42 U.S.C. 116O3(e)(1)(A). The person opposing the
petition has the burden to prove by clear and convincing evidence
the exception in Article 13b, supra, applies. 42 U.S.C. 116O3
(e)(2)(A). Exceptions in Articles 12 and 13 other than l3b may be
proven by a preponderance of the evidence. 42 U.S.C.
1603(e)(2)(B).

This court is vested with original jurisdiction to hear this
matter. 42 U.S.C. 11603(a). The substantive law to be applied is
the law established by the Convention. 42 U.S.C. 11603(d). The
Convention is a treaty among nations, and as such is the supreme
law of the land. United States Constitution Article VI, clause 2.

1. Wrongful Retention.

In the instant case, father has overwhelmingly demonstrated
that the children were wrongfully retained in violation of an
existing order granting joint legal custody (partia potestas) over
the children. The father was entitled to specified visitation
rights which were deliberately violated by the mother. In fact,
credible evidence shows that she was actually encouraged by her
lawyer to disobey a known order of the Court of First Instance in
La Laguna. [FN 2] Mother further compounded her wrong by
retaining the children incommunicado, and testified that she did
not know whether she was going to conceal the children from their
father for an indefinite period of time. Mother admitted that she
made no efforts to inform the father where the children were,
whether they were sick or well, and made no attempts to allow the
children to communicate with their father.

[FN 2: If true, this type of conduct by an attorney
practicing in this State, would subject the attorney to
disciplinary proceedings from the California State Bar, and
would subject the attorney to potential contempt of court
proceedings. This grave allegation of misconduct by an
officer of the court should be inquired into by the
appropriate Spanish authorities.]

Clearly, the above facts demonstrate a retention of the two
children in violation of an existing custody order. Retention of a
child is wrongful when “it is in breach of rights of custody
attributed to a person…either jointly or alone under the law of
the State in which the child was habitually resident immediately
before the removal or retention.” Hague Convention, Article 3a.
Additionally, the party deprived of their custody rights must have
been actually exercising those rights, or would have exercised
those rights but for the wrongful retention. Hague Convention,
Article 3b. Here, the father testified that he exercised every
scheduled visitation, and only found out that the children were not
in Spain when he went to their home and found them gone. If there is
any doubt that the mother’s conduct was wrongful, the provisions
of California Penal Code section 278.5 declaring such conduct to
be a felony offense in this state should put to rest any such
reservations. [FN 3]

[FN 3. “(a) Every person who in violation of the physical
custody or visitation provisions of a custody order,
judgment, or decree takes, detains, conceals, or retains the
child with the intent to deprive another person of his or her
rights to physical custody or visitation shall be punished by
imprisonment in the state prison for 16 months, or two or
three years, a fine of not more than ten thousand dollars
($10,000), or both; or by imprisonment in a county jail for a
period of not more than one year, a fine of not more than one
thousand ($1 ,000.00) dollars, or both.]

2. Risk of Being Exposed to Psychological Harm.

The more difficult issue to resolve is that of the potential
psychological harm which would come to both children by returning
them to Spain. It is clear that the children were not vehemently
opposing return to their father, rather their concerns were of
returning to Spain, It is also clear that the children have been
already damaged by the conduct of their mother in stealing them
away from their father. The history of this family shows that the
family remained intact from 1977, through the birth of the
children, until January, 1984 when the parties separated. At this
time Maria was 6 years, three months old, and Pablo was 4 years 2
months old.

Thereafter, the children were in the exclusive custody of the
father, as the mother had left the family home. Her visitation
with the children during this period of over a year, was sporadic.
Thereafter, during a period of visitation, the mother stole the
children away to the United States for the first time. They
remained in the U.S. with their mother, until the father
negotiated their return in September, 1986, a period of one year
four months. During this first abduction, mother permitted some
telephone contact between the father and the children, but did not
allow disclosure of their location until an agreement satisfactory
to wife was negotiated and made a court order in Spain.

Under this negotiated agreement, the parties remained in
Spain for almost two years, with father exercising his regular
(and liberal by California standards) visitation with the
children. This period was not without difficulties, as mother
attempted to abscond again to the United States for a second time,
only to be foiled in the attempt. Finally, on August 1, 1988,
mother and children left Spain legally, pursuant to the court
decree, but wrongfully remained away until found in the United
States on August 23, 1989.

In sum, during the five year and eight month period since the
parties separation, mother has concealed the children from the
father for a total period of time of two years four months. Under
the circumstances, is there any wonder why the children might have
difficulty “bonding” with their father?

Father presents himself as a credible, concerned, law-abiding
man. He has availed himself of the courts to settle disputes that
obviously require judicial intervention. He has continually
displayed restraint and compliance with the rule of law. There is
no doubt that upon return to Spain, father will seek the court’s
intervention to establish whatever is in the best interest of
these children.

By contrast, the mother has placed these children in an
absolutely untenable position. They have been wrongfully deprived
of the love and companionship of their father, they have been led
to believe that their exit from Spain was absolutely legal (a fact
which this court finds that mother knew not to be the case) and
they have been now allowed to make a comparison between countries
as to their relative desirability for living. Naturally, the
children have made friends here, naturally they are attached to
their pets, naturally they enjoy all the benefits of this country
and the material things which they can have. But what they are too
young to appreciate is that the love of both parents is vital to
emotional growth and security. There are advantages of living in
Spain which cannot be appreciated in the United States. It is for
these ,reasons that mother has fostered and endorsed an unfair
comparison between the countries which has little to do with a
child’s psychological and emotional growth and stability.

The opinion of Dr. Roeder as an expert, is not binding upon
this court. People v. Wilcox (1986) 177 C.A.3d 715. While this
court may reject the conclusion of the expert, even when the
testimony is uncontradicted, this court may not do so arbitrarily.
Krause v. Apodaca (1960) 186 C.A.2d 413. Dr. Roeder conditioned
all of his testimony regarding the children upon a single
afternoon’s visit at the request of this court. He admittedly
would have liked to have more time to make his assessment of the
children. Dr. Roeder did not have the benefit of knowing all of
the facts which were known to the court. Additionally, the reasons
for the children’s apprehension to return to Spain were vague at
best. The problem with the basic tenor of Dr. Roeder’s opinion was
that in this situation, the facts simply did not bear out the
conclusion posed that the children would be subject to a “grave
risk that [their] return would expose the child[ren] to
psychological harm.”

The first reason for rejecting Dr. Roeder’s opinion is the
“brainwashing” effect the children experienced at repetitive
removals. The off-again, on-again presence of father in their
lives is damaging. Leaving the case “status quo” and allowing the
children to remain in the U.S. virtually guarantees further harm
and maladjustment.

The fact is, that the children have already been exposed to,
and have suffered psychological harm due to their wrongful
retention. Additionally, the lack of bonding of these children to
their father is doubtlessly due to their being spirited away from
him twice. The confusion in these children’s minds as to what is
their proper home, who is entitled to care for them, whether their
father cares for them, whether he has seemingly opposed their
“lawful” exit from Spain, and a host of other confusing and
opposing facts erases any doubt that mothers actions have
psychologically injured these children.

The Convention exception in this area speaks of “exposing”
the child to psychological harm by return to the country of
habitual residence. In this sense, this court firmly believes that
neither child will be “exposed” to harm by returning the children
to Spain. Certainly one must be a realist and understand that any
abducted child will suffer trauma to some extent when moved about
the world by a ill-advised parent. But returning the children to
Spain will serve, in this court’s opinion, to allow the Spanish
courts to determine what is in the best interest of the children,
and to rule accordingly. Clearly, the father has demonstrated to
this court that he is the more stable and law abiding parent, and
the parent who is clearly inclined to honor the terms of any
judgment awarding visitation.

Thus, this court believes that there truly is no grave risk
of exposing the children to psychological harm by returning them
to Spain. Father has showed caring for them, and a commitment to
abide by the orders of the court. This stability is necessary for
the children to allow them to nurture. To retain the children in
the United States guarantees that mother will continue to
frustrate the custodial and visitation rights of the father, and
to undermine his relationship with his children. This would
undoubtedly expose the children to a greater risk of psychological
harm than returning them to Spain. To allow this to happen would
be to allow mother to profit by her own wrong, and to continue to
damage the children psychologically by her unwillingness to allow
the father access to his children. Thus, mother has failed to
convince this court by clear and convincing evidence that there is
a grave risk that the children will be exposed to psychological
harm by their return to Spain.

3. Children’s Maturity to Express a Choice.

By a preponderance of evidence, this court finds that both
children are of insufficient age and degree of maturity to express
a view to this court which would be meaningful. This is evident
from the testimony of Dr. Roeder. Finally, the purposes of the
Hague Convention are clearly borne out in this case. The abject
immorality of mothers decisions to take the law into her own
hands, when other clear alternatives existed for her to seek
assistance, and to avoid the grief and suffering to the father and
the children, is appalling. This court suggests that in the likely
event that mother returns to Spain to be near her children, or
even have custody of them in that country, that she be required to
surrender her passport to the United States Embassy in Spain in
order to vouchsafe her intentions to comply with future orders
which will doubtlessly prohibit her from wrongfully removing the
children again.

4. Attorneys Fees and Costs.

Pursuant to the convention it is required that attorneys fees
and costs of transportation be paid by the party guilty of
wrongful conduct, absent reasons which would justify not making an
award. In the instant case husband is thus entitled to an award of
$5,000 as and for attorneys fees and costs of travel to effectuate
the order of return.

CONCLUSION

For the foregoing reasons, the petition is hereby granted, and the
children shall be allowed to return to Spain with their father
forthwith.

Dated: September 1 , 1989.

James D. Garbolino
Judge of the Superior Court

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Counsel:

Applicant: Respondent

William M. Hilton, CFLS Gregory S. Emery
Attorney At Law Attorney At Law
Box 269 1223 High St.
Santa Clara, CA 95052 Auburn, CA 95603
(408) 246-8511 (916) 885-6536
FAX (408) 246-0114

Robert G. Davis
Attorney At Law
1141 High Street
Auburn, California 95063
(916) 885 6284