USA – HI – SALVADOR – 1992 (Return ordered) SALVADOR v SALVADOR.The children went to Hawaii for a visit with the father. The father did not return the children as agreed. The court ordered the children returned to New Zealand.
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Paul J. Durbin FAMILY COURT
Attorney At Law First Circuit Court
735 Bishop St, No. 309 State of Hawaii
Honolulu, HI 96813 Filed: 1:00 p.m.
(808) 531-7924 Mar 20, 1992
C. Miura, Clerk
Attorney for Petitioner
FAMILY COURT OF THE FIRST CIRCUIT
STATE OF HAWAII
Barbara E. Salvador ) FC-M No. 92-0208
)
Petitioner, ) ORDER GRANTING MOTION FOR RETURN
) OF CHILDREN TO PETITIONER, FILED
vs. ) MAR 11, 1992
)
Wilfredo B. Salvador ) Hearing: March 20, 1992
) Judge: Linda K.C. Luke
Respondent. )
______________________________)
ORDER GRANTING
MOTION FOR RETURN OF CHILDREN TO PETITIONER FILED MARCH 11, 1992
Present: Paul Durbin, Attorney for Petitioner
Jack Durham, Attorney for Respondent
Based on the representations/record made, FN-1 IT IS HEREBY
ORDERED that the above is granted. As of 10:39 a.m., March 20,
1992, Respondent shall immediately return subjct children to the
custody of Petitioner, subject children are:
Abby Claire Salvador, Born July 21, 1979
Rebecca Lea Salvador, Born June 29, 1982
Elizabeth Jamie Salvador, Born Feb 21, 1985
FINDINGS
1. The Hague Convention on the Civil Aspects of Child
Abduction applies.
2. Per Article 3 FN-2 of the said Convention at least “de
facto” custody existed wherein the Petitioner Barbara E. Salvador
had the de facto custody of the children in New Zealand FN-3 at
the time of the retention of the children in Hawaii.
3. Pursuant to Article 3 of the Convention the children
had been habitually residing in New Zealand from February 1991
until December 1991.
4. Petitioner had at her own expense made arrangements
for visitation of the hcildren with the Respondent father and
such visitation did occur during the children’s holiday break
from school.
5. Per Article 3 of the Convention there was at least a
breach of Petitioner’s de facto right of custody.
6. Per Article 13 FN-4 of the Convention the court cannot
conclude there is any great risk to the children if the children
are returned to the care and custody of the Petitioner in New
Zealand.
IT IS THEREFORE ORDERED
1. Petitioner’s motion for temporary relief is granted.
2. Petitioenr shall have temporary custody of the subject
children immediately.
The children are:
Abby Claire Salvador, Born July 21, 1979
Rebecca Lea Salvador, Born June 29, 1982
Elizabeth Jamie Salvador, Born Feb 21, 1985
3. The Petitioner’s attorney fees and costs shall be paid
by the Respondent. The reasonableness of such fees and costs
shall be subject to further hearing.
4. Any subsequent proceedings involving custody of these
chidlren shall be in the New Zealand Courts. FN-5
5. This ruling is based on the court’s interpretation of
the Hague Convention and not on any custody orders issued by the
New Zealand Court. FN-6
6. This is not a permanent custody order. FN-7
Dated: Honolulu, Hawaii Mar 20 1992
/s/ Linda K.C. Luke
_________________________________
JUDGE OF THE ABOVE ENTITLED COURT
Approved as to form and content:
/s/ Paul J. Durbin
_____________________
Attorney for Petitioner
/s/ Jack Durham
______________________
Attorney for Respondent
/s/ (Illegible)
_______________________
Guardian Ad Litem
——————–
1. WMH Note: The record shows that the children had been living
in Japan at a US Military base for several years. The parents
separated in Japan and, by agreement, the children and the
mother moved to the family home in New Zealand in about Feb
1991. By agreement they came to Hawaii for a winter break in
Dec 1991, to be returned in early Jan 1992. The father called
the mother and told her that they would be be returned.
2. WMH Note: The removal or the retention of a child 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 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.
The rights of custody mentioned in sub-paragraph (a) above,
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.
3. WMH Note: The Department of Justice of New Zealand provided a
certificate to the Central Authority of the U.S. that, under
New Zealand law, both parents have a right of custody within
the meaning of Article 3.
4. WMH Note: This must refer to Art 13(b): (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.
5. WMH Note: Art 19: A decision under this Convention
concerning the return of the child shall not be taken to be a
determination on the merits of any custody issue; See also 42
U.S.C. 11601(b)(4): The Convention and this Act empower courts
in the United States to determine only rights under the
Convention and not the merits of any underlying child custody
claims.
6. WMH Note: The New Zealand Courts had issued an ex parte order
for custody of the minor children. It is possible that the
court made this statement because of the language of 9 Uniform
Laws Annotated 23 which requires notice and opportunity to be
heard before an order from a foreign nation can be enforced.
But see Suarez Ortega v Pujals de Suarez (Fla.App. 1985) 465
So.2d 607 where an ex parte order from Mexico was enforced on
the theory that Florida ex parte orders are routinely enforced
and that there would be a hearing in Mexico.
7. See footnote 5 (above).