Csoka v Superior Court (Scott-Robson) (Cal.App. 4 Dist 3 Div 2000) 4 International Abduction (USA 2000) =========================================================== NOT TO BE PUBLISHED IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE Civil Number G026988 (Super. Ct. No. OOFLOOO13) 03 Mar 2000 KATALIN CSOKA, Petitioner, v. ThE SUPERIOR COURT OF CALIFORNIA, COUNTY OF ORANGE, Respondent; STEPHEN EDWARD SCOTT-ROBSON, Real Party in Interest. OPINION 001 Original proceedings; petition for a writ of supersedeas to stay enforcement of a judgment of the Superior Court of California, County of Orange, David S. Weinberg, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Writ denied. Jeffrey W. Doeringer for Petitioner. No appearance for Respondent. Stephen Edward Seott-Robson, in pro. per., for Real Party in Interest. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schorts, Senior Assistant Attorney General, Esteban Hernandez and Raquel M. Gonzalez, Deputy Attorneys General and Tony Rackauckas, Disirict Attorney, David Wagner, Deputy District Attorney assisting the United States Central Authority for Hague Cases. Dinnebier King & Werts, Jennifer J. King for the Minor. 002 This is a proceeding under the Hague Convention on the Civil Aspects of international Child Abduction. The superior court has ordered the return of a minor child, Robert Csanad Csoka-Robson, to his natural father (real party in interest) pursuant to a judgment which has been considered and left standing by the Supreme Court of Sweden. The father has stipulated to return the child to Sweden (where he will finish the school year, probably in June) and that further proceedings may occur in that country's courts. 003 The mother has appealed the judgment of the superior court (No. 0026992) and in this proceeding petitions this court for a writ of supersedeas and invokes the 30-day automatic stay provisions of Code of Civil Procedure section 917.7. We asked the parties, including appointed counsel for the minor, to brief two issues: whether section 917.7 is preempted by the Hague Convention's "most expeditious procedures available" language and whether petitioner can make a prima facie showing that she is likely to prevail on appeal. We also set a hearing on the matter for this date. 004 Having read and heard the submissions of the attorneys for all interested parties, we now rule as follows: Assuming, without deciding, that Code of Civil Procedure section 917.7 is not preempted by the Hague Convention, we find no reasonable probability that petitioner will prevail on appeal on her claim that the child will be exposed to "a grave risk of harm" if the order is affirmed, or on any of her other claims. We also find that she has an adequate legal forum in the Swedish courts and that is where any further proceedings in this matter should be presently resolved, since it is clear that the child was wrongfully removed from Sweden, which is that country "in which [he] was habitually resident immediately before the removal. . . ." (Hague Conv., Arts. 3(a), (b).) 005 The petition for writ of supersedeas is DENTED. The automatic stay of Code of Civil Procedure section 917.7, if not preempted, is ordered dissolved forthwith. The minor and real party in interest are awarded costs for. this writ proceeding against petitioner. (42 U.S.C.  11607, subd. (b)(3).) Petitioner and the Central Authority shall bear their own costs for this writ proceeding. Counsel assisting the Central Authority shall return the passports of the minor and real party in interest forthwith. CROSBY, J. WE CONCUR: SILLS, P.J. BEDSWORTH, J. =========================================================== 31 Mar 2000 Wm M Hilton Comment: This decision looks to the language of California Code of Civil Procedures 917.7 (CCP 917.7): "The perfecting of an appeal shall not stay proceedings as to those provisions of a judgment or order which award, change, or otherwise affect the custody, including the right of visitation, of a minor child in any civil action, in an action filed under the Juvenile Court Law, or in a special proceeding, or the provisions of a judgment or order for the temporary exclusion of a party from a dwelling, as provided in the Family Code. However, the trial court may in its discretion stay execution of these provisions pending review on appeal or for any other period or periods that it may deem appropriate. Further, in the absence of a writ or order of a reviewing court providing otherwise, the provisions of the judgment or order allowing, or eliminating restrictions against, removal of the minor child from the state are stayed by operation of law for a period of seven calendar days from the entry of the judgment or order by a juvenile court in a dependency hearing, or for a period of 30 calendar days from the entry of judgment or order by any other trial court. The periods during which these provisions allowing, or eliminating restrictions against, removal of the minor child from the state are stayed, are subject to further stays as ordered by the trial court or by the juvenile court pursuant to this section. [Amended 1993 ch. 219, 1999 ch. 346.]" There is a "tension" between CCP 917.7 and the language of Art. 12 of The Convention: "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. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child." The Convention requires that the child be returned "forthwith" and it could be said that his language pre-empts CCP 917.7. While this may be the case in jurisdictions outside of the United States, one must consider the language of 42 U.S.C. 11604(b): "LIMITATION ON AUTHORITY.-No court exercising jurisdiction of an action brought under section 4(b) may, under subsection (a) of this section, order a child removed from a person having physical control of the child unless the applicable requirements of State law are satisfied." Note the specific language: ". . . unless the applicable requirements of State law are satisfied. Under CCP 917.7 California state law requires a thirty (30) day stay of the removal of a Ne Exeat order, unless (as was the case here) the Court of Appeal orders otherwise. The Court of Appeal made no ruling on whether or not CCP 917.7 applies under The Convention. Instead the Court of Appeal used the power granted to it by the express language of CCP 917.7 to enter its order that eliminated the automatic stay. It could be argued that since the Court of Appeal had specifically asked that this issue be addressed and then (without deciding this point) used the specific provisions of CCP 917.7 to eliminate the stay, that the requirements of CCP 917.7 apply even when the matter is an action under The Convention. While this may seem contra to the "forthwith" language of Art. 12 of The Convention, it has a certain amount of logic in that it permits an application to the Intermediate Court of Appeal while holding the child in the jurisdiction. If this were not the case then an appeal would be pointless since even if one were successful it would be a hollow victory as the child would have been long gone from the forum.