AFFIDAVIT OF WILLIAM M. HILTON, CFLS I, William Mulholland Hilton, CFLS, Attorney, of Santa Clara, California, swear/affirm: 1. I am admitted to practice before all courts in the State of California and before the federal courts of the Northern District of California and have been so admitted since 18 June 1974. I was admitted to practice before the United States District Court, Central District of the Ninth Circuit and the United States Court of Appeal, Ninth Circuit, in 1994. 2. I was first designated a Certified Specialist in Family Law on 15 July 1980 and have twice been re-certified by the California Board of Legal Specialization of the State Bar of California. 2.1 Certification as a Specialist is permitted in California for Family Law, Tax Law, Criminal Law and Workman's Compensation Law. It is not mandatory. Certification permits an attorney to state that he or she is a Certified Specialist under the rules established by the State Bar of California. Re-Certification is done every five years. Certification and re-certification requires that the person who wishes to be certified show proof of Continuing Legal Education (CLE) and proof that one has participated in a minimum number of hearings, settlements, etc. Peer review is an essential part of the re-certification process. 3. My practice is limited to issues of International and Interstate Child Custody Jurisdiction, applications under The Convention on the Civil Aspects of International Child Abduction, done at the Hague on 25 October 1980 and enforcement of custody and access orders of other states and foreign countries. 4. I have appeared on these issues in the California Superior Courts in San Diego County, Orange County, Los Angeles County, Santa Cruz County, Fresno County, San Benito County, San Mateo County, Santa Clara County, San Joaquin County, Contra Costa County, Sonoma County, Alameda County and San Francisco County. I have personally appeared in the Courts of Washington State and the State of Kentucky. I am regularly consulted by attorneys in nearly all of the other states of the United States. I am regularly consulted by the United States Department of State on similar issues. 4.1 I have appeared as an Expert Witness on the application of The Convention on the Civil Aspects of International Child Abduction, done at the Hague on 25 Oct 1980, on 07 Oct 1991 in the State of Colorado. 4.2 I have appeared as an Expert Witness on the Uniform Child Custody Jurisdiction Act in the Court of Queen's Bench of Alberta, Judicial District of Calgary, Canada on 16, 17, and 18 Dec 1991. 5. I regularly attend training courses for family law attorneys. Although California only requires a minimum of twelve hours per year of CLE training, each year I attend a minimum of 20 hours of CLE training and regularly lecture at CLE seminars. 6. I regularly lecture on Interstate and International Child Custody Subject Matter Jurisdiction in the United States and other countries. My most recent overseas lecture was before the International Bar Association, London, United Kingdom on 06 Jun 1994 on the issue of International Child Abduction. I have also made a presentation to the Queensland Law Society, Brisbane, Queensland, Australia in March 1991 and before the Auckland Law Society in that same month. 7. I am a recognized expert in the area of The Hague Convention. 7.1 ". . . Mr William Hilton Attorney at Law, California, who is as I understand it one of the leading experts in the Hague Convention in the United States of America." The Honourable Justice Joseph V. Kay in DEPARTMENT OF HEALTH AND COMMUNITY SERVICES (As the State Central Authority), (Applicant) and IRENE EASTON, (Respondent), No. ML.11184 of 1992, Melbourne, Australia. 7.2 ". . .attorney William M. Hilton of Santa Clara, California, who gathers international articles, verdicts and reports from around the world pertaining to The Hague Treaty and supplies this kind of material to whoever asks for it." The Honorable Justice Hayim Porat, Tel Aviv District Court, Israel. Case Number: M.A. 2898/92, Nov 1992, Foxman v Foxman. 8. QUESTION PRESENTED: In the absence of a court order, what are the respective rights of custody of parents of a minor child in California? 9. The fundamental law on this issue is California Family Code Section (F.C.) 3010 (Formerly California Civil Code 197): FN 1 (a) The mother of an unemancipated minor child and the father, if presumed to be the father under Section 7611, are equally entitled to the custody of the child. (b) If one parent is dead, is unable or refuses to take custody, or has abandoned the child, the other parent is entitled to custody of the child. 10. Under California law the mother and father are equally entitled to custody, if the father is a "Presumed Father" within the meaning of F.C. 7611. Since the parents, in this case, were married on 01 Nov 1986 and continue to be married to one another, and since both children were born after the date of marriage, then F.C. 7611(a) applies: A man is presumed to be the natural father of a child if he meets the conditions provided in Chapter 1 (commencing with Section 7540) of Part 2 or in any of the following subdivisions: (a) He and the child's natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a judgment of separation is entered by a court. 11. Accordingly the Father, as the "Presumed Father" of the minor children, has custody rights that are identical to and co-equal with those of the Mother. 12. The California Supreme Court, in In re Zacharia D. (Cal. 1993) 6 Cal.4th 435 at pages 447 - 451, in defining "Parent", construed F.C. 3010 as follows: FN2 1. Definition of "Parent" Section 361.5, subdivision (a), added to the Welfare and Institutions Code in 1986 by Senate Bill No. 1195, 1985-1986 Regular Session, provides, "Except as provided in subdivision (b), whenever a minor is removed from a parent's or guardian's custody, the juvenile court shall order the probation officer to provide child welfare [reunification] services to the minor and the minor's parents or guardians for the purpose of facilitating reunification of <*pg.448> the family within a maximum time period not to exceed 12 months .... Services may be extended up to an additional six months if it can be shown that the objectives of the service plan can be achieved within the extended time period." Neither in this section nor anywhere else in the child dependency statutes, or in the legislative history to Senate Bill No. 1195, does the Legislature define, although it often uses, the word "parent." In fact, "parent" is the only word used in the dependency statutes up until the point where the statutes begin to address the section 366.26 hearing, or the hearing at which parental rights may be terminated. Courts have concluded that the word "parent" in the dependency statutes does not include de facto or stepparents. (See In re Jodi B. (1991) 227 Cal.App.3d 1322, 1328-1329 [278 Cal.Rptr. 242] [stepparent is not a "parent" for purposes of reunification]; In re Jamie G. (1987) 196 Cal.App.3d 675, 679, 684 [241 Cal.Rptr. 869] [de facto parents not "parents" entitled to further reunification services].) Once the dependency statutes address the issue of possible termination of parental rights, they begin to differentiate between the rights of "presumed," "natural," and "alleged" fathers. The first occurrence of this distinction is in section 366.23, subdivision (a), which provides that both presumed and alleged fathers are entitled to notice of the section 366.26 hearing at which parental rights may be terminated. In addition, section 366.26, subdivision (i), refers to "natural" parents, and section 366.26, subdivision (a), expressly incorporates Civil Code section 7017, which uses the terms "natural" and "presumed" father. The word "parent" is defined in the Uniform Parentage Act (UPA), Civil Code section 7000 et seq. In particular, the UPA "distinguishes between a 'presumed father' and one who is merely a 'natural father' " (Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 790 [218 Cal.Rptr. 39, 705 P.2d 362], superseded on other grounds by statute), "according presumed fathers <*pg.449> greater rights than natural fathers." (In re Shereece B., supra, 231 Cal.App.3d at p. 622; see In re Sarah C. (1992) 8 Cal.App.4th 964, 974 [11 Cal.Rptr.2d 414] ["parental rights are generally conferred on a man not merely based on biology but on the father's connection to the mother [and/or] child through marriage (or attempted marriage) or his commitment to the child"]; cf. Adoption of Kelsey S., supra, 1 Cal.4th at p. 844 ["it is clear that Legislature meant to provide natural fathers with far less rights than both mothers and presumed fathers have under California's statutory system"].) Under Civil Code section 197 (Now F.C. 3010), both the mother and presumed father, but not the natural father, "are entitled to custody of their minor children." (In re Baby Girl M., supra, 37 Cal.3d at pp. 71, 72; see In re Shereece B., supra, 231 Cal.App.3d at p. 622 [presumed, not natural, father entitled to custody]; In re Kelvin M. (1978) 77 Cal.App.3d 396, 399-400, 403 [143 Cal.Rptr. 561] [presumed father entitled to custody under Civil Code section 197 (Now F.C. 3010) and hence due process requires opportunity to be heard at dependency jurisdictional hearing].) In order to become a presumed father, a man must fall within one of several categories enumerated in Civil Code section 7004, subdivision (a) (Now F.C. 7611(a)). The only relevant category in this case is section 7004, subdivision (a)(4), which provides that a natural father may become a presumed father if "[h]e receives the child into his home and openly holds out the child as his natural child." (See In re Phoenix B. (1990) 218 Cal.App.3d 787, 790, fn. 3 [267 Cal.Rptr. 269]; id. at p. 792 [presumed father status achieved when alleged father "came forward when the Department instituted dependency proceedings, offered to care for his daughter, took her into his home and ... held her out as his child"].) The "superior court ha[s] the authority to grant [a biological father] custody of his child so that he [can] qualify as a presumed father under section 7004, subdivision (a)." (Adoption of Kelsey S., supra, 1 Cal.4th at p. 842; see Michael U. v. Jamie B., supra, 39 Cal.3d at p. 791 [if <*pg.450> natural father "actually acquired physical custody, he could receive [child] into his home and thereby acquire the status of a presumed father"]; Civ. Code,  7010, subd. (c).) In addition, in Adoption of Kelsey S., supra, 1 Cal.4th 816, we held that "section 7004, subdivision (a) and the related statutory scheme violates the federal constitutional guarantees of equal protection and due process for unwed fathers to the extent that the statutes allow a mother unilaterally to preclude her child's biological father from becoming a presumed father and thereby allowing the state to terminate his parental rights on nothing more than a showing of the child's best interest." (Id. at p. 849, italics in original.) Under such circumstances, "[i]f an unwed [biological] father promptly comes forward and demonstrates a full commitment to his parental responsibilities-emotional, financial, and otherwise-his federal constitutional right to due process prohibits the termination of his parental relationship absent a showing of his unfitness as a parent." (Ibid.) In "emphasiz[ing] the narrowness of our decision," we stated that the "statutory distinction between natural fathers and presumed fathers is constitutionally invalid only to the extent it is applied to an unwed father who has sufficiently and timely demonstrated a full commitment to his parental responsibilities. Our statutes ( 7004 & 7017, subd. (d)(2)) are constitutionally sufficient when applied to a father who has failed to make such a showing." (Adoption of Kelsey S., supra, 1 Cal.4th at pp. 849-850, italics in original.) Here, we examine only a biological father's right to reunification services and custody, not the standard under which his parental rights are terminated. <*pg.451> As in the adoption context addressed in Kelsey S., however, a biological father's paternal rights may ultimately be terminated in the dependency process. Such termination is almost inevitable if a father is not involved in the dependency process prior to the section 366.26 hearing. The issue would arise therefore, under facts not presented here, whether the statutory distinctions between biological and presumed fathers are unconstitutional as applied to a biological father who is precluded from attaining presumed father status by the mother or a third party, but who comes forward early in the dependency process, and who displays a commitment consistent with the standard set forth in Kelsey S. Extending Kelsey S. to apply in the dependency context would allow such a father to participate as a "parent" in, or end the need for, the dependency proceedings. However, under no view of the evidence did Javan demonstrate such a commitment, or satisfy any of the Kelsey S. criteria during the relevant period in this case. Nor does Javan claim he was precluded from attaining presumed father status by Wendy or any third party. Thus, we need not address this constitutional issue here. 13. Accordingly, under California law, when, as is the case here, the parents are married to one another and there is no court order designating one or the other as the parent with exclusive custody, then the parents respective "Rights of Custody" are identical. 14. California zealously protects this right. The removal of a child by one parent, in the absence of a court order, if done with the intent of depriving the other parent of his or her right of custody, can be charged as a felony under California Penal Code 277: In the absence of a court order determining rights of custody or visitation to a minor child, every person having a right of custody of the child who maliciously takes, detains, conceals, or entices away that child within or without the state, without good cause, and with the intent to deprive the custody right of another person or a public agency also having a custody right to that child, shall be punished by imprisonment in the county jail for a period of not more than one year, a fine of one thousand dollars ($1,000), or both, or by imprisonment in the state prison for a period of one year and one day, a fine of vie thousand dollars ($5,0000), or both. A subsequently obtained court order for custody or visitation shall not affect the application of this section. For the purposes of this section, "a person having a right of custody" means the legal guardian of the child or a person who has a parent and child relationship with the child pursuant to Section 197 of the Civil Code. As used in this section, "good cause" means a good faith belief that the taking, detaining, concealing, or enticing away of the child is necessary to protect the child from immediate bodily injury or emotional harm. 14.1 Under Penal Code Section 277, a parent who unilaterally changes the residence of a child may be subject to criminal prosecution unless such removal, although not condoned, is " . . . necessary to protect the child from immediate bodily injury or emotional harm." In other words a parent who unilaterally acts to remove the child from the other parent violates that other parents rights of custody under California law. 15. Accordingly, under California law, the parents of an unemancipated minors have equal and co-existing rights of custody of their minor children. This equality reaches into proceedings for dissolution of marriage when the issue of custody is placed before the court. In making an order for custody, there is a preference for joint custody and the court may not prefer a parent as a custodian because of that persons's sex, F.C. 3030(a)(1) To both parents jointly pursuant to Chapter 4 (commencing with Section 3080) or to either parent. In making an order granting custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent, subject to Section 3011, and shall not prefer a parent as custodian because of that parent's sex. The court, in its discretion, may require the parents to submit to the court a plan for the implementation of the custody order. 16. United States Federal law is in accord. The Convention is implemented in the United States by the terms of 42 United States Code (USC) 11601 through 11610. Under 42 USC 11603(f)(2), ". . . the terms "wrongful removal or retention" and "wrongfully removed or retained", as used in the Convention, include a removal or retention of a child before the entry of a custody order regarding that child; . . ." 17. CONCLUSIONS 17.1 On the date that the children were removed from California the parents of the children were married to one another, no orders existed granting one or the other any rights of custody and neither parent had given the other permission to remove the children from their Habitual Residence of California. 17.2 Under these conditions California law is crystal clear: Absent a court order, both parents have equal and co-exsiting rights of custody to the two minor children and neither parent, without the consent of the other, may decide where the children may live. 18. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on 08 Dec 1994 at Santa Clara, CA. /s/ Wm. M. Hilton William M. Hilton State of California ) ) ss. County of Santa Clara ) On 08 Dec 1994 before me, Beverly Ambrose, Notary Public, personally appeared William M. Hilton, proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. /s/ Beverly Ambrose ______________________________ Signature of Notary (SEAL: Expires 16 Apr 1995) FOOT NOTES -------------------- 1. California, on 01 Jul 1993, combined various family law statutes into a Family Code. 2. The decision refers to California Civil Code 197, which was renumbered as Family Code 3010 in 1993.