Hernandez and Lopez (Mexico 2000) State of Michoacan 21 Jan 2000 1 International Abduction [MEXICO 2000] =========================================================== CONSTITUTIONAL HEARING REFERRED BY CONSTITUTIONAL ARTICLES 14 AND 16 21 Jan 2000 Petitioner: Maria Hernandez and Respondent: Ramiro Sanchez Lopez In the City of Apatzingan, Michoacan at twelve noon of January the Twenty First, of the year Two Thousand with staff from the First Civil Court for the Judicial District, which included Attorneys, SUSANA SILVIA GARCES NOBLECIA and JOSE MIGUEL CARDENAS MAGANA, Judge and Clerk respectively, in order to comply a public hearing decreed by ruling dated January the eighteenth of this year. Likewise present was Attorney CARLOS JACOBO RAMIREZ, in his legal capacity as Attorney for the minor and family from this city. The System For Integral Family Development (Fostering), Mrs MARIA HERNANDEZ, as well as the Investigating Agent appointed by the District Attorney from the County of San Diego, California, FN01 citizen IRMA Z PARTIDA the minor child, RAMIRO SANCHEZ HERNANDEZ and Attorney FERNANDO ROTELLIO BECERRA, in his capacity as Legal Representative for Mr. RAMIRO SANCHEZ LOPEZ, herewith introduces his power of attorney for Collections and Lawsuits, granted in his favor on the 20th. day of January of this year before the Notary Public number 113, Attorney JOSE MAURO CISNEROS FONSECA, whose legal capacity is herewith acknowledged for all legal purposes that might arise. Furthermore, Mr. RAMIRO SANCHEZ LOPEZ is advised, through his Legal Representative, that on October 29th, of last year, this legal authority received [a] copy of the official document number 5833 dated September 23rd., of last year along with its annexes, same documents that were sent by the Attorney MIGUEL ANGEL GONZALEZ FELIX, Legal Adviser for the Department of Family Law from the offices of the Secretariat of Foreign Affairs, FN02 in order to initiate for proceedings the application towards the return of the minor, RAMIRO SANCHEZ HERNANDEZ, that in view of La Hague Convention on Civil Matters on International Child Abduction, published in the Official Gazette of the Federation of March sixth, 1992, One Thousand Nine Hundred and Ninety Two, the Central Authority from the United States of America delivered to the above mentioned legal consulting agency, in compliance with the aforementioned Convention, the [request for] return of the minor child illegally abducted from his habitual place of residence, and likewise informing them on the competent Court hearing the custody case, which is the Higher Court for the San Diego, California County, United States, Court before which Mrs MARIA HERNANDEZ requested the temporary custody of the minor child, RAMIRO SANCHEZ HERNANDEZ, according to file number DV 007000, but, this First Court on Civil Matters located at Apatzingan, Michoacan, will not decree on the root under cause of the matter regarding custody rights, but solely on its authority to request the prompt return of the minor and his temporary placement under the authority of the local System for the Integral Family Development (DIF Spanish abbreviation), while the legal advising agency arranges for the return of the minor child before the central authority in the United States of America. FN03 Once the above procedures are carried out, the right to a hearing as referred by Articles 14 and 16 of the Political Constitution of the United Mexican States, FN04 for Mr. RAMIRO SANCHEZ LOPEZ in order for him to state the best of his interests, stating as follows: "In my position as Legal representative for Mr. RAMIRO SANCHEZ LOPEZ, I oppose the petition of temporary return of the minor child requested by Mrs MARIA HERNANDEZ, because she is not fit according to law. Likewise, because the aforementioned MARIA HERNANDEZ did not in an effective way the custody right over the child RAMIRO SANCHEZ HERNANDEZ Likewise because the removal of the child was with his consent. Besides, there is the great risk that if the child is returned, he will be exposed to a physical or physical damage that will put the minor under an intolerable situation, requesting that I be allowed a period of time to provide evidence of the above mentioned exceptions." Afterwards, the Attorney CARLOS JACOBO RAMIREZ, in his Legal capacity as Central Authority states that ". . . in regards to the possible physical and psychical risk referred to by the legal representative of Mr. RAMIRO SANCHEZ LOPEZ, fortunately we have highly trained and professional personnel, to avoid these risks, as is the case of the Investigative Agent appointed to the District Attorney for the Higher Court for the San Diego, California County in the United States of America, who will be responsible, as the representative for the American authorities for the return of the minor RAMIRO SANCHEZ HERNANDEZ before the aforementioned Court, to comply with the legal order granted by it". FN05 Afterwards, Ms. IRMA Z. PARTIDA, in her capacity as District Attorney states the following: "An investigation has been carried out in San Diego, California, the mother, MARIA HERNANDEZ has three other children, besides the minor, RAMIRO SANCHEZ HERNANDEZ, the children arc well taken care of, they don't miss school, there's enough food in the house, clothing for the children and Mrs MARIA HERNANDEZ is attending school to improve herself, while the children are out for school. Likewise, I want to state that few hours after the child, RAMIRO SANCHEZ LOPEZ was picked up, Mr. RAMIRO SANCHEZ LOPEZ made a phone call to San Diego California, threatening Mrs MARIA HERNANDEZ, to the baby sitter, NORMA LETICIA MONTES and MRS. MARIA HERNANDEZ's family. He also sent his cousin SALVADOR, several times, looking for MRS. MARIA HERNANDEZ. When he did not find her those several times be called all night long trying to talk to Mrs MARIA HERNANDEZ". FN06 Afterwards and since at this stage of the proceedings, there is no evidence on the exceptions and pleas to support the allegations of the legal representative of Mr. RAMIRO SANCHEZ LOPEZ, and there is no evidence to support that Mrs. MARIA HERNANDEZ was not complying with the right to custody at the time the minor was taken, nor there was any evidence that she authorized at any given moment to the removal of her minor son. Likewise, there is no evidence of the child being in great risk for physically or psychological threat by the restitution, nor that he will be physically or a psychologically threatened, nor that the child will be brought into an intolerable situation since at this point of the proceedings he does not show reluctance to the presence of his mother. Therefore and since this is not the time to provide the Legal Representative of MR. RAMIRO SANCHEZ LOPEZ, time to offer and introduce evidence to be heard at a later time, and considering the nature of the matter and that the mother's regular residence is in the United States, herewith, this Authority decrees the return of the minor child, RAMIRO SANCHEZ HERNANDEZ, who is under the responsibility of the Central System for Families' Integral Development, through the Attorney General from Apatzingan, Michoacan, Attorney CARLOS JACOBO RAMIREZ, who has the knowledge of the aforementioned, and states as follows: "Since the return of the child; RAMIRO SANCHEZ HERNANDEZ has been decreed by the Court during this action, therefore and at this point I am officially returning the mentioned minor to the District Attorney appointed by the Attorney General of the Superior Court of the County of San Diego, California in the United States of America, Ms IRMA Z PARTIDA, all of the above, in order to duly comply with the commitment made by Mexican authorities, through La Hague Convention on Civil Matters for the International Child Abduction, the safe return of the child and this is all I have to declare." Afterwards Ms IRMA Z. PARTIDA declared: "I receive the minor RAMIRO SANCHEZ HERNANDEZ from Attorney Jacobo. This is going to be returned to San Diego, California". With the aforementioned declarations this proceedings were completed followed by the signatures of the people involved. I CERTIFY. (Illegible signatures) 07 Feb 2000 Notes by Wm. M. Hilton, CFLS Attorney At Law Box 269, Santa Clara, CA 95052-0269 TEL: 408 246 8511 FAX: 408 246 0114 EML: hilton34@hiltonhouse.com 1. Words that are surrounded by square brackets "[ . . . text . . .]" are supplied by Wm M Hilton and are not part of the original decision. 2. All footnotes have been added by Wm M Hilton 3. Under the facts given in this case, the right result was reached in that the allegations of the Father that the Mother was "unfit" were disposed of by a) referring them to the California Court and b) providing a "Safe Harbor" for the return of the child. It is important to note that the Father was not denied his right to a custody proceeding, but only postponed and determined by a California Court. It must be also understood that it is implicit in actions under The Convention that the courts of all contracting states have equal dignity and that this is an accepted legal position once a country becomes a contracting state. If this were not so then The Convention would not have any validity. -------------------- 1. See California Family Code Section (CFC) 3130 through 3134.5 2. This would be the Central Authority for Mexico. See The Convention on the Civil Aspects of International Child Abduction, done at the Hague on 25 Oct 1980 [The Convention], Arts. 6 and 7. 3. Here the Mexican court recognizes that the sole issue before it is whether or not the child should be returned to San Diego and that the Mexican Court, in this proceeding, could not go into the merits of the case, e.g., ". . . will not decree on the root under cause of the matter regarding custody rights . . ." See Art. 19 of The Convention. 4. Presumably Articles 14 and 16 give the parties a right to have a hearing on the merits of a custody dispute. Here the Mexican court states that these rights will be protected by having the Superior Court of California in San Diego conduct the hearing. This is in keeping with the intent of The Convention, more succinctly put by the Perez-Vera Report at Section 34 (in part): "The practical application of this principle requires that the signatory States be convinced that they belong, despite their differences, to the same legal community within which the authorities of each State acknowledge that the authorities of one of them - those of the child's habitual residence - are in principle best placed to decide upon questions of custody and access." 5. Here the Mexican Court finds that the child can be returned safely to San Diego, despite the unproven allegations of the father that the mother is somehow unfit. This is done by providing a "Safe Harbor" return in this case by having the California agents available to help with the return. See also Foot Note 06, below. 6. See Foot Note 05, above