USA – FEDERAL – GONZALEZ – 2000 (Interim Orders) In most cases interim orders will be necessary, e.g. to ensure that the child is not removed from the jurisdiction pending a hearing on the merits of the Petition; to stay local actions for custody, etc. The court has the specific authority to make these interim orders under Art. 7(b) of The Convention and/or 42 U.S.C. 1604.
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In re the Application of Evelyn Gonzalez-Caballero(Dist. Az. 2000)
Civil Case No CV-00-218-TUC-JMR
5 International Abduction (USA 2000)
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UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
(CIVIL ORDER – GENERAL)
Civil Case No CV-00-218-TUC-JMR
Filed 06 Apr 2000
In re the Application of Evelyn Gonzalez-Caballero
HONORABLE JOHN M ROLL
001 On April 6, 2000, Petitioner Evelyn
Gonzalez-Caballero, a citizen of Panama, filed a “Petition
for Return of Child” pursuant to the Hague Convention on the
Civil Aspects of International Abduction and the
International Child Abduction Remedies Act, 42 U.S.C.11601
et seq. She claims that on October 5, 1999, Respondent Ramon
Eduardo Mena took their child, Danelsy Sofia Mena Gonzalez,
from Panama, with Petitioner’s authorization, for a two week
vacation to the United States but has since refused to
return the child to Petitioner.
002 On April 6, 2000, an ex parte hearing was held to
determine what action, if any, should be taken before
service of the petition on Respondent. The provisional
remedies of 42 U.S.C. 11604 provide that a court “may take
or cause to be taken any measures under Federal or State
law, as appropriate, to protect the well being of the child
involved or to prevent the further removal or concealment
before the final disposition of the petition” but a court
may not “order a child removed from a person having’
physical control of the child unless the applicable
requirements of State Law are satisfied.” Based upon the
representations of Petitioner’s counsel at the ex parte
hearing, the Court does not find that the well-being of the
child is currently in jeopardy.
Accordingly,
003 IT IS ORDERED that both Respondent and Petitioner are
prohibited from removing the child from the District of
Arizona.
004 IT IS FURTHER ORDERED that Respondent is prohibited
from moving from his current Sierra Vista address without
notifying Petitioner’s counsel and the Court of his change
of address.
004 IT IS FURTHER ORDERED that. Respondent surrender to
the Court any passports and other travel documentation in
his name or the child’s name.
005 IT IS FURTHER ORDERED that the above orders are to
remain in effect throughout the pendency of this case or
until further order of the Court.
006 IT IS FURTHER ORDERED that a status conference in
this case is scheduled for Friday, April 14, 2000 at 2:00
P.M. before the Honorable John M Roll. Petitioner and
Respondent are required to be present. Respondent is
informed of his right to appear with retained counsel. At
this hearing the Court will set a hearing date for arguments
on the merits of Petitioner’s “Petition for Return of
Child.”
/s/ John M Roll
JOHN M ROLL
United States District Judge
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08 Apr 2000
Comment by William M. Hilton, CFLS
In the normal course of events for a proceeding under The
Convention on the Civil Aspects of International Child
Abduction, done at The Hague on 25 Oc 1980 (The Convention)
a typical case would be commenced (as was done here) with
the filing of the “Petition for Return of Child” followed by
a hearing on the Petition at some time in the future which
would then result in an order granting or denying the
petition.
In most cases interim orders will be necessary, e.g. to
ensure that the child is not removed from the jurisdiction
pending a hearing on the merits of the Petition; to stay
local actions for custody, etc.
The court has the specific authority to make these interim
orders under Art. 7(b) of The Convention and/or 42 U.S.C.
11604.
The interim order can, upon a proper showing, include a
“Warrant in Lieu of a Writ of Habeas Corpus” (WLW) which
permits the court to place the child in the care of a third
person before the service of the Petition (see, e.g., Klam v
Klam (E.D.N.Y 1992) 797 Fed.Supp. 202). Note that a court
may, in an emergency, remove the children without parental
consent or a prior court order and where there is a post
deprevation hearing. In those cases the constitutional
requirements of notice and an opportunity to be heard are
not elimintated, but merely postponed. Hooks v Hooks (6
Cir. 1985) 771 F.2d 935, 942.
The ORDER issued in this case is an excellant example of the
proper use of interim orders.
Here the court conducted an ex parte hearing to deteermine
if the child was to be placed in the care of a 3rd party
pending the hearing on this matter and found that, under the
circumstances, it was not warranted.
The court made further orders, in the spirit of The
Convention, as to scheduling, removal of the child,
whereabouts of the child, etc.
The Court, aware that an action under The Convention is
somewhat unique, could have done any or all of the
following:
1. At the ex parte hearing, the Court could determine
whether or not the child should be picked up under a WLW.
2. Whether or not a Ne Exeat order would issue pending
the outcome of the hearing on the Petition.
3. Whether or not it would issue an order under Art. 16
of The Convention, which prohbits the local courts from
proceeding on the meirts of the underlying custody case
while the matter under The Convnetion is pending.
4. Whether or not the court would schedule a status
conference within a reasonable period of time to get all of
the parties together so that the Court and the parties could
have a clear understanding of how the matter was to proceed
at the hearing of the Petition.
4.1 At the status conference the Court would set a date
for the actual hearing on the merits of the Petition. Ath
this status conference the court may also instruct the
parties as to the procedures that may be used in this
matter. See, e.g., Zajaczkowski v Zajaczkowska (Dist.Md.
1996) 932 F.Supp. 128, where the court held that the
ordinary rules of civil procedure should not apply due to
the summary nature of a Petion under The Convention.
4.2 Such procdures could include the following:
4.2.1 Whether or not the parties can proceed upon
affidavits. See, e.g., Wipranik v Wipranik (Cal.App. 2 Dist
2 Div 1998) 63 Cal.App.4th 315
4.2.2 How much notice should be given for the hearing
on the merits of the Petitiion.
4.2.3 Whether or not witnesses can appear by telephone.
See, e.g., Freier v Freier (E.D. Mich. 1996) 969 F.Supp. 436
where an assistant deputy attorney general of Israel
appeared by telephone.
4.2.4 Whether or not discovery would be permitted and
what restricitions on such production.
4.2.5 To what extent the Federal Rules of Civil
Procedure should be followed.
In considering the above one should keep in mind that a
principal purpose of The Convention is to summarily decide
the matter and promptly return the minor child to his or her
“Habitual Residence” See, e.g. the Preamble, Arts. 1, 2 and
7 of The Convention; 42 U.S.C. 11601(a)(4). The proper
implementation of the status conference can go far in
accomplishing this laudable goal.