USA – MARYLAND – ZAJACZKOWSKI V ZAJACZKOWSKA – 1996 (Discussion on habeas corpus) ZAJACZKOWSKI v ZAJACZKOWSKI. The father filed this action under the Hague Convention seeking the return of child to Poland. The court set a date for the mother to appear before the court to show cause why a writ of habeas corpus should not be issued and why the child should not be returned to Poland.


Zajaczkowski v Zajaczkowska (Dist.Md. 1996)Civil No. PJM 96-1799



Petitioner *
v. *
* Civil No. PJM 96-1799
Respondent *


On June 10, 1996, pro se Petitioner Stanislaw Zajaczkowski filed
this action under the Hague Convention on tthe Civil Aspects of
International Child Abduction (the “Convention”) FN1 and its
implementing legislation, the International Child Abduction
Remedies Act, 42 U.S.C.A.  11601-11610 (West 1995) (“ICARA”).
Petitioner seeks an Order compelling Respondent Jolanta T.
Zajaczkowska to return the parties’ minor child, Jan Krystian
Zajaczkowski (“Jan”), to Petitioner’s custody in Poland.

The Court has jurisdiction pursuant to 42 U.S.C.A.  11603 and
applies the substantive law of the Convention, 42 U.S.C.A. 
11603(d). The procedure in cases such as this is summary and looks
only to the issue of whether a child has been “abducted from [his
or her] country of habitual residence or wrongfully retained
outside that country.” Letter of Transmittal by President Ronald
Reagan, 1988 U.S.C.C.A.N. 386, 386-87; see also 42 U.S.C.A. 
11601(a); Joel R. Brandes & Carole L. Weidman, International Child
Abduction, N.Y.L.J., October 26, 1993, at 3. No hearing on the
merits of a custody dispute is contemplated. See Convention art.
19; 42 U.S.C.A.  11601(b)(4).

There are, however, no special procedural rules prescribing the
course of action for a federal court when a petition under thee
Convention and ICARA is filed, and the legislative history of
ICARA provides little by way of enlightenment. To date, for
example, Respondent has not been served a copy of the Petition.
FN2 The preliminary question is how the Court ought to proceed
given that lack of service.

Unquestionably at the heart of the Convention is prompt action by
courts. Convention art. 11; see also Walton v. Walton, 925 F.
Supp. 453 (S.D. Miss. 1996) (court ruled on merits of petition
thirty days after petition was filed); Navarro v. Bullock, 15
Fam. L. Rep. (BNA) 1576 (Cal. Super. Ct. Sept. 1, 1989) (court
ruled on merits of petition eight days after petition was filed).
This comports with the obvious desideratum that any dispute
involving custody of a child be decided quickly so as to minimize
the anxiety and unsettlement of the child and to avoid
assimilation of the child into strange environs which could lead
to subsequent difficulties in separation. See Herring, supra, at
148; Copertino, supra, at 722.

The rules of procedure applicable to ordinary civil cases would
seem to be at odds with the Convention and ICARA’s premium on
expedited decision-making. Twenty days to answer a petition, Fed.
R. Civ. P. 12(a)(1)(A), utilization of various discovery devices,
Fed. R. Civ. P. 33 (interrogatories); Fed. R. Civ. P. 31
(depositions), and extended trial time work at cross-purposes to
the objective of prompt disposition. In the Court’s view, however,
there exists a familiar vehicle suitable to these circumstances
and that is the writ of habeas corpus.3 While the writ is not
mentioned in ICARA, its office is to test the legality of an
alleged wrongful detention. 39 Am. Jur. 2d Habeas Corpus  1
(1968). This translates rather easily into a test of wrongful
abduction or retention within the meaning of the Convention.

The key purposes of the habeas remedy are strikingly similar to
those behind the Convention and ICARA. First, as a procedural
device, writs of habeas corpus are to be dealt with in an
expeditious manner. They are intended to afford a swift and
imperative remedy in all cases of illegal restraint or
confinement. Johnson v. Rogers, 917 F.2d 1283, 1284 (lOth Cir.
1990) (citing Fay v. Noia, 372 U.S. 391, 400 (1963)). A habeas
application usurps the attention and displaces the calendar of the
judge who entertains it and receives prompt action from him or her
within the four corners of the application. Ruby v. United States,
341 F.2d 585, 587 (9th Cir. 1965), cert. denied, 384 U.S. 979
(1966). The Convention likewise contemplates quick action; a
period of six weeks from the date of the filing of the petition to
the court’s decision is envisioned. See Convention art. 11 (“If
the judicial or administrative authority concerned has not reached
a decision within six weeks from the date of commencement of the
proceedings, the applicant … shall have the right to request a
statement of the reasons for the delay.”); 22 C.F.R.  94.6(h)
(1995) (requiring United States authorities, upon request by a
petitioner, to seek a report on the status of court action when no
decision has been reached by the end of six weeks). The time frame
associated with habeas matches the intent of the Convention far
better than ordinary federal procedural rules would.

Moreover, “[t]he writ of habeas corpus is a procedural device for
subjecting … Private restraints on liberty to judicial
scrutiny,” Pevton v. Rowe, 391 U.S. 54, 58 (1968) (emphasis
added), which is precisely what the Convention envisions in the
context of the wrongful abduction or retention of children.
Notably, in the history of the common law, FN4 habeas has
traditionally been used to test the legality of an alleged
wrongful detention of a child. The writ “was not calculated to try
the rights of parents and guardians to the custody of infant
children, but was frequently used when children were detained from
their parents or guardians on the ground that such detention from
legal custody was equivalent to illegal restraint and
imprisonment.” Burns v. Bines, 189 Md. 157, 161, 55 A.2d 487, 489
(1947) (citation omitted).

Even in federal courts, habeas has been available on a limited
basis where child custody is involved. See generally Kurtis A.
Kemper, Annotation, Availability of Federal Habeas Corpus Relief,
Under 28 USCS  2241 and 2254, In Child Custody Cases, 49 A.L.R.
Fed. 674 (1980). FN5 In Nquyen Da Yen v. Kissinger, 528 F.2d
1194 (9th Cir. 1975), the court held that habeas jurisdiction was
proper in a suit brought to challenge the legality of the custody
of a class of children. Id. at 1202-03. The court noted that
“custodial restraints on a minor child, even if voluntarily
submitted to by the child, have long been held a sufficient
deprivation of the child’s liberty to be tested by way of habeas
corpus.” Id. at 1202 (citing cases). FN6

The fact that a treaty and a statute of the United States are
involved strengthens the case for allowing habeas relief. The
federal habeas statute predicates the grant on the character of
the custody and specifically includes reference to a person “in
custody in violation of the Constitution or laws or treaties of
the United States.” 28 U.S.C.A. 2241(c)(3) (West 1994) (emphasis
added). FN7 Finally, at least one federal district court has
applied the habeas procedure in a case under the Convention and
ICARA, although it did not, at least in a published opinion,
explain its reasoning for doing so. See Walton v. Walton, 925 F.
Supp. 453, 455-56 (S. D. Miss. 1996) (“On April 15, 1996,
[Petitioner] filed the subject petition in this Court and a Writ
of Habeas Corpus was issued that day requiring [Respondent] to
appear before this Court on May 13, 1996, to show cause why [the
child] should not be returned to Australia.”)

In view of the foregoing, the Court will treat the instant
petition as an application for a writ of habeas corpus.
Accordingly, pursuant to 28 U.S.C.A.  2243, the Court has
conducted a preliminary review of the application and it is not
plainly apparent that Petitioner is entitled to no relief. The
Court will thus order Respondent to appear before the Court on
August 8, 1996, at 10:00 a.m. and show cause why a writ of habeas
corpus should not issue and why Jan should not be returned to
Poland. FN8 Respondent will be ordered to “produce at the
hearing the body of the person detained,” i.e., Jan. 28 U.S.C.A. 
2243. The Court will hear evidence and argument in summary fashion
and decide the case at the hearing, unless, for good cause shown,
it finds reason for delay.

The U.S. Marshal will be directed to promptly serve a copy of the
Petition, this Opinion and the accompanying Order on Respondent at
her work address as provided by Petitioner.

An appropriate Order will be entered.

/s/ Peter J. Messitte




Petitioner *
v. *
* Civil No. PJM 96-1799
Respondent *


Upon a review of the instant Petition, for the reasons stated in
the accompanying Opinion, it is this 26th day of July 1996

ORDERED that Respondent SHALL APPEAR before the Court in Courtroom
4C, 6500 Cherrywood Lane, Greenbelt, Maryland 20770 on August 8,
1996 at 10:00 a.m., and SHOW CAUSE, if any she may have, why
Petitioner’s Petition should not be granted, why a writ of habeas
corpus should not issue and why Jan Krystian Zajaczkowski should
not be returned to Poland; and it is further

ORDERED that Respondent SHALL PRODUCE at the aforementioned
hearing the body of Jan Krystian Zajaczkowski; and it is further

ORDERED that the United States Marshals Service shall promptly
SERVE a copy of this Order, the accompanying Opinion and the
Petition on Respondent Jolanta T. Zajaczkowska at Metrica
Corporation (contractor for Drug Enforcement Agency), 600 Army
Navy Drive, Arlington, Virginia; and it is further

ORDERED that the Clerk of Court shall MAIL a copy of this Order
and the accompanying Opinion to Petitioner via first-class mail.

/s/ Peter J. Messitte


1. Convention on the Civil Aspects of International Child
Abduction, done at The Haque Oct. 25, 1980, T.I.A.S. No.
11,670. For background on the Convention, see Lynda R.
Herring, Comment, Taking Away the Pawns: International
Parental Abduction & the Haque Convention, 20 N.C.J. Int’l
L. & Com. Reg. 137 (1994); Monica Marie Copertino, Comment,
Haque Convention On the Civil Aspects of International Child
Abduction: An Analysis of Its Efficacy, 6 Conn. J. Int’l L.
715 (1991); Caroline LeGette, Note, International Abduction
and the Haque Convention: Emerging Practice and
Interpretation of the Discretionary Exception, 25 Tex. Int’l
L.J 287 (1990).

2. Petitioner has moved for service by the U.S. Marshal
pursuant to Rule 4(c)(2). He says Respondent’s work address
is Metrica Corporation, 600 Army Navy Drive, Arlington,
Virginia. While Petitioner does not know Respondent’s home
address, he alleges that she lives in Prince George’s
County, Maryland and that the child Jan is enrolled as a
student at Avalon Elementary School in Prince George’s
County. This Opinion renders MOOT Petitioner’s Motion to
Shorten Time to File an Answer.

3. “Writs of habeas corpus may be granted by … the district
courts … within their respective jurisdictions.” 28 U.S.C.
 2241(a). The Federal Rules of Civil Procedure are only
applicable to proceedings for habeas corpus “to the extent
that the practice in such proceedings is not set forth in
statutes of the United States and has heretofore conformed
to the practice in civil actions.” Fed. R. Civ. P. 81(a)(2);
see also Ruby v. United States, 341 F.2d 585, 587 (9th Cir.
1965), cert. denied, 384 U.S. 979 (1966) (ordinary rules of
civil procedure do not apply in a habeas proceeding).

4. Because the federal statute does not attempt to define the
terms “habeas corpus” or “custody,” a determination of the
appropriate use of the writ must involve recourse to the
common law. Peyton, 391 U.S. at 59.

5. In ordinary child custody disputes, habeas corpus is
inappropriate and unavailable. E.g., Hickey v. Baxter, 800
F.2d 430 (4th Cir. 1986). More generally, the Court
acknowledges that federal courts do not ordinarily enter
into the thicket of child custody proceedings either by way
of habeas or any other means. See, e.g., Cole v. Cole, 633
F.2d 1083, 1087 (4th Cir. 1980) (“[T]he district courts have
no original diversity jurisdiction to grant a divorce, to
award alimony, to determine child custody, or to decree
visitation.”). But the critical point is that ICARA
proceedings are not, by express language, determinative of
“the merits of any underlying child custody claims;” they
only determine “rights under the Convention.” 42 U.S.C. 
11601(b)(4); see also Convention 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.”. Moreover, Congress clearly conferred original
jurisdiction over the federal district courts (along with
the state courts) to adjudicate rights under the Convention.
42 U.S.C.  11603(a).

6. Compare Huynk Thi Anh v. Levi, 427 F. Supp. 1281 (E. D.
Mich. 1977), aff’d, 586 F.2d 625 (6th Cir. 1978), in which
the court held that habeas was not appropriate and
distinguished Nquyen Da Yen by noting that in Huynk Thi Anh
any winner of the ultimate custody battle would keep the
children in the United States. 427 F. Supp. at 1287. “There
is no allegation or pretense that the plaintiffs are
attempting to obtain custody to return the children to
Vietnam.” Id. Under that set of facts, the Huynk Thi Anh
court determined that available state court remedies were
superior and declined to afford federal habeas relief.

7. As noted above, the fact that the custody is private does no
eliminate the possibility of habeas relief. See Peyton v.
Rove, 391 U S 54, 58 (1968); Nguyen Da Yen, 528 F.2d at

8. The federal habeas statute allows the Court to either award
the writ or issue an order directing the respondent to show
cause why the writ should not be granted. 28 U.S.C.  2243.
The statute requires the respondent to “make a return
certifying the true cause of the detention” within three
days unless for good cause additional time is allowed. Id.
After the return, a hearing must be set within five days
(unless for good cause additional time is allowed). For the
convenience of the parties and the Court in the present
case, no written return or other pleading will be required.
Respondent may, but need not, submit a written response to
the Petition to the Court, with a copy to Petitioner, at off
before the date of the hearing.