In re the Application of Evelyn Gonzalez-Caballero (Dist. Az. 2000) Civil Case No CV-00-218-TUC-JMR 5 International Abduction (USA 2000) =========================================================== 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 =========================== 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.