De Arrendondo vs Salto (Cal.Super. 1997) Santa Clara County NO. FL065075 =========================================================== PROLOGUE The matter before the Superior Court of Californian, County of Santa Clara, was a wrongful retention. By a stipulated agreement in the Mexican courts, the father had custody of the children and the mother had visitation. The children were taken from Mexico to Los Angeles for a visit in Dec 1995 by their mother and subsequently concealed and later moved to Santa Clara County, California, about 400 miles to the North of Los Angeles. The father filed his request for return with the Mexican Central Authority on 04 Jan 1996 after he learned that the mother would not return the children. The children were located in Oct 1996 and an action was filed in the Superior Court of California on 28 Jan 1997 by the District Attorney of Santa Clara County. The children were picked up using a Warrant in Lieu of a Writ of Habeas Corpus on 28 Jan 1997 and were immediately taken to court. The judge made interim orders and ordered all parties back for a hearing on the Petition for Return on 04 Feb 1997. At the hearing of 04 Feb 1997 the sole issue before the court was the application of the "age and maturity" test of Art. 13: "The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views." The two children in question were 11 and 12 years of age. The Court had the children seen by a Mental Health Professional (MHP) from the Court's Family Court Service Department who then rendered her findings to the court orally. The transcript below sets forth the court proceedings after the interview and report of the MHP to the court. Done on 22 Feb 1997 by: William M. Hilton, CFLS Attorney At Law Box 269, Santa Clara, CA 95052-0269 TEL: 408-246-8511 FAX: 408-246-0114 Web Site: http://www.hiltonhouse.com E-Mail: hilton34@hiltonhouse.com =========================================================== IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA BEFORE THE HONORABLE RAYMOND J. DAVILLA, JR., JUDGE DEPARTMENT 120 Ä--000--Ä IN RE THE MARRIAGE OF: MARCO ROMERO MARTINEZ ) DE ARRENDONDO, ) PETITIONER, ) ) NO. FL065075 VS. ) VIRGINIA MURILLO SALTO, ) RESPONDENT. ) ÄÄÄ000--Ä REPORTER'S PARTIAL TRANSCRIPT OF PROCEEDINGS HELD ON FEBRUARY 4, 1997 ÄÄÄ000-ÄÄ A P P E A R A N C E S: FOR THE PETITIONER: WILLIAM M. HILTON, ESQ FOR THE RESPONDENT: SIDNEY FLORES, ESQ CENTRAL AUTHORITY DESIGNEE AND FRIEND OF THE COURT: JANET MURPHY HEIM, D.D.A. SPANISH INTERPRETER: SAM FABILA SPANISH INTERPRETER: HEATHER ROJAS OFFICIAL COURT REPORTER: ANITA L. WOODRUFF, CSR CERTIFICATE NO. 10776 SAN JOSE, CALIFORNIA FEBRUARY 4, 1997 PARTIAL TRANSCRIPT: THE COURT: ALL RIGHT. BACK ON THE RECORD ON THE DE ARRENDONDO AND SALTO MATTER. THE RECORD SHOULD REFLECT THAT ALL PARTIES AND COUNSEL ARE PRESENT. THE CHILDREN WERE INTERVIEWED SEPARATELY BY MARY LOU HIPOLITO OF FAMILY COURT SERVICES. SHE REPORTS TO ME THAT THE CHILDREN ARE VERY BRIGHT AND ENTERTAINING, AND WERE VERY CALM, AND INDICATED THAT THERE'S NO QUESTION THAT EACH OF THEM PREFER BEING IN CALIFORNIA. THEY FEEL SAFE HERE. THEY ENJOY THE SCHOOLS HERE. ON THE OTHER HAND, THEY LOVE THEIR MOTHER AND FATHER EQUALLY AND UNCONDITIONALLY. AND EVEN MORE IMPORTANTLY, THEY DID NOT INDICATE A REFUSAL TO RETURN TO MEXICO. IN FACT, IT WAS THE OPINION OF MS. HIPOLITO THAT THEY INDICATED IN SO MANY WORDS THAT THEY WOULD ABIDE BY WHATEVER THE JUDGE FOUND WAS APPROPRIATE. SO BASED ON THAT, I'M GOING TO MAKE THE FOLLOWING FINDINGS AND ORDER. I WILL FIND THAT THE TIME PERIOD IN ARTICLE 12 HAS BEEN TOLLED, THAT THE ACTION WAS TIMELY AND PROMPTLY FILED, AND THAT THERE ARE NO EXCEPTIONS IN ARTICLE 13 WHICH WOULD APPLY. AND THEREFORE, I WILL ORDER THE CHILDREN RETURNED TO THE CUSTODY OF THEIR FATHER TO RETURN TO MEXICO, WHICH WILL BE THE JURISDICTION THAT WILL DETERMINE ANY FURTHER CUSTODY, VISITATION ISSUES. AND I'D LIKE TO HEAR FROM COUNSEL WITH REGARDS TO WHEN THE CHILDREN SHOULD BE TURNED OVER. MR. FLORES: YOUR HONOR, WE WOULD BE REQUESTING ON BEHALF OF THE MOTHER TO ALLOW FOR THE CHILDREN AT LEAST TO FINISH THEIR SCHOOLING HERE FOR THIS YEAR WHICH WOULD END APPROXIMATELY, I BELIEVE, IN JUNE. SO AT LEAST THAT THEY WOULD GET THE BENEFIT OF THE EDUCATION THEY HAVE BEEN RECEIVING HERE, AND MOTHER, OF COURSE, NOT HAVING ANY DIFFICULTIES WITH REFERENCE TO RETURNING THE CHILDREN TO FATHER AT THAT TIME FORTHWITH. THE COURT: COUNSEL? MR. HILTON: YOUR HONOR, ANTICIPATING THAT THIS MIGHT BE ONE OF THE POSSIBLE RESPONSES TO THE COURT, I'VE DISCUSSED THIS MATTER WITH THE FATHER AND HE ASSURES US THAT HE WILL HAVE NO PROBLEM INTEGRATING THE CHILDREN INTO THE LOCAL SCHOOL SYSTEM IN MEXICO. I WOULD ALSO POINT OUT TO THE COURT, UNDER ARTICLE 12 THE COURT STATES THAT THE AUTHORITY CONCERNED SHALL ORDER THE RETURN OF THE CHILD FORTHWITH, AND THAT'S UNDER ARTICLE 12 IN THE CONVENTION. SO WE WOULD ASK THAT THERE BE A REASONABLE PERIOD OF TIME FOR THE CHILDREN TO MAKE THEIR NECESSARY GOODBYES AND SO FORTH, BUT THEY BE RETURNED TO MEXICO FORTHWITH. THE COURT: AND WHAT IS YOUR OPINION AS TO WHAT A REASONABLE PERIOD OF TIME IS? MR. HILTON: I THINK I'VE READ TWO OR THREE HUNDRED OF THESE CASES. IT RANGES FROM TWO OR THREE DAYS TO A TEN-DAY PERIOD, SOMETHING OF THAT NATURE. YOU HAVE TO UNDERSTAND THAT THE FATHER IS UP HERE, AND HE HAS LIMITED MEANS TO WHICH HE CAN STAY AS WELL. AND -- THE COURT: I APPRECIATE THAT. MR. HILTON: -- NOT TRYING TO APPORTION THE BLAME OR ANYTHING, BUT THAT CONSIDERATION WASN'T GIVEN WHEN THE CHILDREN WERE TAKEN TO BEGIN WITH. THE COURT: I THINK THE CHILDREN SHOULD BE RETURNED PROMPTLY, BUT I DIDN'T INTEND TO DO IT RIGHT NOW. MY THINKING IS THAT PERHAPS BY THE WEEKEND, BUT I'LL HEAR FURTHER FROM MOM ON THAT. MR. HILTON: BY THIS WEEKEND WOULD BE APPROPRIATE, YOUR HONOR. MR. FLORES: THAT WOULD BE FINE, YOUR HONOR, WITH MOTHER. YOUR HONOR, IF I MAY -- THE COURT: YES. MR. FLORES: WITH REFERENCE TO THE REPORT FROM MS. HIPOLITO, I TAKE IT THAT THAT REPORT WAS IN WRITING TO THE COURT? THE COURT: NO, IT WAS NOT IN WRITING. MR. FLORES: SO THIS WAS VERBAL? THE COURT: THAT'S CORRECT. MR. FLORES: AND THE QUESTIONS THAT WERE PROPOUNDED TO THE CHILDREN WERE VERBALIZED BY YOU TO MS. HIPOLITO RATHER THAN IN WRITING? THE COURT: THAT'S CORRECT. MR. FLORES: OKAY. THE COURT: SHE'S AVAILABLE FOR CROSS-EXAMINATION IF YOU SO DESIRE. MR. FLORES: I WOULD LIKE TO DO THAT, YOUR HONOR, IF I MAY. THE COURT: WOULD YOU CALL MS. HIPOLITO? MS. HEIM: EXCUSE ME, YOUR HONOR. WHILE WE'RE WAITING, I HAVE A PROPOSED ORDER, IF I COULD. THE COURT: YOU MAY SUBMIT THAT. MS. HEIM: YES, I'M GIVING A COPY TO COUNSEL. THE COURT: MADAM REPORTER, WOULD YOU FIND THE PART IN THE TRANSCRIPT WHERE I RECITED WHAT SHE TOLD ME? SHE SHOULD HEAR THAT, AND I WANT THAT PART READ BACK. (WHEREUPON, MS. MARY LOU HIPOLITO ENTERED THE COURTROOM.) THE COURT: COME FORWARD AND BE SWORN, PLEASE. MARY LOU HIPOLITO, BEING CALLED AS THE COURT'S OWN WITNESS, HAVING BEEN FIRST DULY SWORN, WAS EXAMINED AND TESTIFIED AS FOLLOWS: THE COURT: WOULD YOU STATE YOUR NAME FOR THE RECORD, PLEASE? THE WITNESS: MARY LOU HIPOLITO. THE COURT: MS. HIPOLITO, AT MY REQUEST, YOU INTERVIEWED THE TWO CHILDREN IN THIS MATTER; IS THAT CORRECT? THE WITNESS: THAT'S CORRECT, YOUR HONOR. THE COURT: AND YOU DID NOT RECEIVE ANY WRITTEN INSTRUCTIONS FROM ME, NOR DID YOU ISSUE A WRITTEN REPORT; IS THAT CORRECT? THE WITNESS: THAT'S CORRECT. THE COURT: ALL RIGHT. IN YOUR ABSENCE I RECITED FOR THE RECORD TO COUNSEL AND THE PARTIES WHAT YOUR REPORT, YOUR ORAL REPORT WAS TO ME. AND I'M GOING TO HAVE THE COURT REPORTER READ IT BACK, AND THEN MR. FLORES WANTS TO ASK YOU SOME QUESTIONS. THE WITNESS: CERTAINLY. (WHEREUPON, THE RECORD WAS READ BY THE REPORTER.) WMH FN1 THE COURT: IS THAT AN ACCURATE REPRESENTATION OF WHAT YOU TOLD ME? THE WITNESS: YES, IT IS, YOUR HONOR. THE COURT: MR. FLORES? MR. FLORES: YES. CROSS-EXAMINATION BY MR. FLORES: Q MS. HIPOLITO, YOU SEPARATED THE CHILDREN WHEN YOU INTERVIEWED THEM; IS THAT CORRECT? A I INTERVIEWED THEM SEPARATELY, YES. Q AND DID YOU INTERVIEW THEM TOGETHER BY ANY CHANCE? A NO. Q AND WITH REFERENCE TO YOUR INDICATION THAT THEY BOTH PREFER BEING IN CALIFORNIA, HOW WAS IT THEY TOLD YOU THAT THEY PREFERRED TO BE IN CALIFORNIA? A BASICALLY BY THOSE WORDS. ALSO, THAT THEY ENJOY THE HOME WHERE THEY NOW RESIDE. IT HAS A TENNIS COURT, IT HAS A SWIMMING POOL, AND THEY LIKE THE SCHOOL. Q OKAY. DID YOU ASK THEM IF THEY HAD AN OBJECTION TO GOING TO MEXICO? A I DID ASK THEM IF THEY -- IF THE COURT DECIDED THEY SHOULD GO TO MEXICO, WOULD THEY REFUSE TO GO, AND THE CHILDREN REPLIED THAT, INDIVIDUALLY, THEY DO WHATEVER THE ADULTS SAY. BUT THEY WOULD PREFER TO STAY HERE. Q OKAY. BUT YOU NEVER DID ASK THEM WHETHER THEY OBJECTED TO RETURNING TO MEXICO AT THIS TIME, DID YOU? A I DID NOT USE THE WORD "OBJECT," NO. Q OKAY. AND YOU COUCHED IT IN TERMS OF IF THE JUDGE WERE TO ORDER YOU TO GO TO MEXICO, YOU WOULDN'T HAVE A PROBLEM? BASICALLY IS THAT THE WAY YOU COUCHED IT? A YES, IN THE MANNER IN WHICH I INTERVIEW CHILDREN, YES. Q AND YOU UNDERSTAND THE CULTURE FROM WHICH THEY COME? A I CERTAINLY DO. Q ESPECIALLY WITH REFERENCE TO THE RESPECT FOR AUTHORITY SUCH AS JUDGES? A YES, I DO. Q AND YOU UNDERSTAND THAT IF A CHILD OF MEXICAN HERITAGE, SUCH AS THESE CHILDREN HERE, IF A JUDGE IS GOING TO ORDER SOMETHING, THAT THEY USUALLY SAY THEY WILL RESPECT THAT AND ABIDE BY IT? A GENERALLY I THINK SO, YES. Q SO WOULD IT BE FAIR TO SAY, MS. HIPOLITO, THAT YOU REALLY DIDN'T ASK THE QUESTION AS TO WHETHER OR NOT THEY THEMSELVES, WITHOUT REFERRING TO ANY AUTHORITY AT ALL, BUT WHAT THEIR DESIRE WAS WITH REFERENCE TO REMAINING HERE IN CALIFORNIA OR GOING TO MEXICO? A I DON'T DO ANY INTERROGATION OF THE CHILDREN. IN MY CONVERSATION WITH THEM, THEY BOTH STATED INDIVIDUALLY THAT THEIR PREFERENCE WAS TO STAY HERE IN CALIFORNIA, PRIMARILY SAN JOSE. THEY DID NOT INDICATE THAT THEY OBJECTED BY SAYING "I OBJECT" OR "I WOULD NOT GO" AND REFUSE TO GO. THEY DID NOT SAY THAT. Q WELL, DID YOU ASK THEM IF THE JUDGE DIDN'T MAKE AN ORDER AND IF THEY WERE ASKED BY YOU WHAT DO YOU WANT, WHERE DO YOU WANT TO STAY, THEY TOLD YOU THEY WOULD RATHER STAY IN SAN JOSE, CALIFORNIA; IS THAT CORRECT? A WELL, THE CHILDREN SEEMED TO HAVE AN IDEA OF WHAT WE MIGHT ASK, OR WHAT I MIGHT ASK, BECAUSE THEY HAD SOMEWHAT OF A PREPARED STATEMENT, ESPECIALLY THE YOUNGEST CHILD, AS TO WHAT HER PREFERENCE WAS. Q HOW WAS THAT? A SAYING IT'S NOT MY FAULT MY PARENTS ARE DIVORCED. THIS IS WHAT I LIKE, THIS IS WHAT I DON'T LIKE, I'M HAPPIER HERE, ONE, TWO, THREE. I MEAN, SHE WAS VERY METHODICAL ABOUT HER PRESENTATION. Q SO YOU FELT SHE WAS PREPARED, CANNED? A I WOULD THINK THAT A CHILD HER AGE COMING TO A COURT, NOT KNOWING THE SYSTEM OF WHAT WAS TO BE ASKED, THAT SOMEHOW THERE MAY HAVE BEEN SOME PREPARATION. I DON'T KNOW. THEY'RE VERY BRIGHT CHILDREN, YES. Q SO IT MIGHT BE THAT YOU COULD BE WRONG, THAT IT'S JUST THAT SHE'S BRIGHT AND SHE RESPONDED ACCORDINGLY, CORRECT? A I THINK MAYBE, YES. Q THEY CERTAINLY WERE NOT CANNED WHEN THEY TOLD YOU -- OR SHE WAS NOT CANNED WHEN SHE TOLD YOU THAT SHE LOVED BOTH HER MOTHER AND FATHER, CORRECT, OR DID THAT APPEAR TO BE CANNED TOO? A I THINK THAT SHE'S VERY TRUTHFUL, THAT SHE LOVES BOTH PARENTS, YES. Q AND HOW LONG DID YOUR INTERVIEW TAKE WITH REFERENCE TO EACH? A TEN, FIFTEEN MINUTES. Q DID YOU FEEL THAT THESE CHILDREN WERE BRIGHT AND MATURE IN THEIR RESPONSES TO YOU? A I THINK THEY'RE VERY BRIGHT CHILDREN. THEY'RE AGE-APPROPRIATE MATURITY. Q AND WOULD YOU SAY THAT THEY'RE OLD ENOUGH, GENERALLY SPEAKING, AS TO BE MAKING A DECISION AS TO WHERE THEY WOULD PREFER TO BE, WITH EITHER MOTHER OR FATHER? A I COULDN'T TELL YOU AT THIS POINT WHETHER THEY ARE OLD ENOUGH OR MATURE ENOUGH TO MAKE THAT DECISION. Q OKAY. WHY IS THAT? DO YOU THINK YOU NEED MORE TIME WITH THEM? A I WOULD NEED MORE TIME. AND ALSO THEIR SITUATION. THEY'RE CAUGHT BETWEEN TWO PARENTS. THEY'RE LOYAL TO EACH PARENT. I CERTAINLY WOULD THINK THAT IT NEEDS MORE TIME, MORE EXPLORATION. Q HOW MUCH MORE TIME WOULD YOU NEED TO BE ABLE TO MAKE THAT KIND OF DETERMINATION? A I DON'T KNOW WHETHER I COULD MAKE THAT DETERMINATION, OR HOW MUCH TIME. I REALLY CAN'T GIVE YOU AN EXACT AMOUNT OF . TIME. Q HOW MUCH GENERALLY DOES IT TAKE YOU TO DO IT, AS A MATTER OF PRACTICE? A IT ALL DEPENDS ON -- Q GIVEN THE AGE OF THESE CHILDREN IN PARTICULAR, I'M SURE YOU'VE HAD OTHER INSTANCES WHERE YOU'VE INTERVIEWED ELEVEN AND TWELVE YEAR OLDS? A SOMETIMES WITHIN AN HOUR, TWO HOURS. SOMETIMES WE DO IT NOT JUST ONE SESSION BUT MORE. Q SO IT MIGHT BE THAT THE TEN TO FIFTEEN MINUTES MAY NOT HAVE BEEN ADEQUATE TIME FOR YOU TO BE ABLE TO GET TO THE BOTTOM OF IT WITH REFERENCE TO YOU BEING ABLE TO OPINE AS TO THE LEVEL OF MATURITY OF BOTH GIRLS; IS THAT CORRECT? A AS I STATED BEFORE, THEY ARE AGE-APPROPRIATE MATURE. I THINK THE INFORMATION I NEEDED -- THE TIME WAS ADEQUATE FOR THE INFORMATION THAT I NEEDED. Q BUT YOU'RE TELLING ME, THOUGH, THAT IN ORDER FOR YOU TO DETERMINE MATURITY LEVEL WITH REFERENCE TO ABILITY TO MAKE A DECISION FOR THEMSELVES AS TO WHETHER TO STAY, YOU WOULD NEED MORE TIME TO BE ABLE TO EVALUATE THAT ASPECT OF MATURITY; IS THAT CORRECT? A I BELIEVE THAT I ANSWERED YOUR QUESTION WHETHER THE CHILDREN SHOULD MAKE A DECISION WHETHER TO STAY OR TO GO. I THINK THAT AT THEIR AGE, WE CERTAINLY WILL TAKE INTO CONSIDERATION THEIR INPUT, BUT I DON'T THINK THAT THEY'RE MATURE ENOUGH TO MAKE A DECISION AS TO WHICH PARENT THEY SHOULD (SIC) PREFER TO LIVE WITH. Q WHAT'S THAT BASED UPON? A WELL, THESE ARE ELEVEN AND TWELVE YEAR OLDS. THEY'RE -- AT THIS POINT WITH THEIR LOYALTY AS TO BOTH PARENTS, THEY'RE EXPRESSING A DESIRE TO RESIDE WHERE THEY ARE ENJOYING THE AMENITIES. THEY CERTAINLY ENJOY BEING WITH THEIR MOTHER AND THE YOUNGER SIBLING. BUT TO MAKE A DECISION AS TO WHERE THEY SHOULD RESIDE PERMANENTLY, I DON'T KNOW WHETHER THESE CHILDREN WOULD BE PREPARED TO MAKE THE DECISION AT THIS POINT AT THAT AGE Q AND THAT'S BECAUSE YOU HAVEN'T HAD TIME ENOUGH WITH THEM IN THE INTERVIEW PROCESS; IS THAT CORRECT? A I'M MERELY EXPRESSING MY OPINION. Q AND I'M JUST TRYING TO GET YOUR OPINION FROM YOU. A THAT'S MY OPINION, YES. Q THAT YOU HAVE NOT HAD ENOUGH TIME TO INTERVIEW THEM IN ORDER TO BE ABLE TO MAKE THAT OPINION? A I DON'T KNOW WHETHER I WOULD HAVE THE SAME OPINION IF I SPENT MORE TIME WITH THEM OR NOT. Q OKAY. AND GENERALLY SPEAKING, YOU USUALLY TAKE UP TO AN HOUR TO INTERVIEW THESE CHILDREN WHEN ISSUES LIKE THIS COME UP WITH REFERENCE TO PREFERENCE AS TO MOTHER OR FATHER, CORRECT? A NOT ALWAYS. SOMETIMES. IT ALL DEPENDS ON THE CASE, DEPENDS ON THE CHILDREN, YES. Q I'M TALKING GENERALLY SPEAKING WITH ELEVEN TO TWELVE YEARS OLDS, USUALLY AN HOUR? A SOMETIMES, YES. MR. FLORES: NOTHING FURTHER, YOUR HONOR. THE COURT: ANY QUESTIONS? MS. HEIM: NO QUESTIONS. MR. HILTON: NO QUESTIONS. THE COURT: YOU CAN BE EXCUSED. THANK YOU, MS. HIPOLITO. THE WITNESS: THANK YOU, YOUR HONOR. THE COURT: ALL RIGHT. IN TERMS OF THE RETURN DATE, THE COURT WOULD PROPOSE SUNDAY, FEBRUARY STH (SIC) AT NOON. IS THAT CONVENIENT FOR EVERYONE? MR. HILTON: YES. THE FATHER'S AGREEABLE TO THAT TIME, YOUR HONOR. THE COURT: IS THAT CONVENIENT FOR MOM? MR. FLORES: THAT WILL BE FINE, YOUR HONOR, FOR MOM. FOR THE RECORD, YOUR HONOR, WE WOULD BE TAKING THE POSITION THAT IT APPEARS, ESPECIALLY FROM THE STANDPOINT OF THIS TYPE OF CASE, I THINK1 THAT EVEN THOUGH IT'S A "HAGUE" CASE, THAT GENERALLY SPEAKING WHEN WE HAVE OUR OWN CHILDREN HERE IN THE UNITED STATES THAT ARE EVALUATED BY FAMILY COURT SERVICES, THAT USUALLY THERE IS A LITTLE MORE TIME GIVEN TO ALLOW FOR INVESTIGATION AND THE OPINION BY THE FAMILY COURT SERVICES PERSONNEL TO BE ABLE TO RENDER A DECISION TO THE COURT TO ALLOW FOR THE COURT TO MAKE A JUST AND REASONABLE DECISION. MY CONCERN AT THIS POINT, YOUR HONOR, IS THAT I BELIEVE THAT TEN, FIFTEEN MINUTES WITH EACH CHILD WAS PROBABLY INAPPROPRIATE TO THE EXTENT THAT WE HAVE, ONE, THE INTERVIEWER INDICATING THAT SHE BELIEVED THAT THEY WERE AGE MATURE APPROPRIATE (SIC), BUT SHE DID NOT FEEL THAT SHE COULD MAKE AN EVALUATION WITH REFERENCE TO THE MATURITY ASPECTS OF THE CHILDREN IN BEING ABLE TO DETERMINE FOR THEIR OWN BEHALF WHETHER OR NOT THEY HAVE THE ABILITY TO MAKE A SOLID, GOOD BUSINESS -- OR EXCUSE ME, GOOD BASIS DECISION AS TO WHICH PARENT THEY'RE TO REMAIN WITH. LASTLY, YOUR HONOR, I DO BELIEVE THAT GIVEN THAT INCIDENT, AND ESPECIALLY GIVEN THE FACT THAT WE HAVE CHILDREN WHO'LL NOW BE TAKEN FROM THIS JURISDICTION TO ANOTHER, THAT IT WOULD HAVE BEEN APPROPRIATE TO ALLOW FOR ADDITIONAL TIME FOR THE SCREENER TO REALLY GET TO THE TRUE MATURITY LEVEL, DECISION-MAKING OF THESE CHILDREN, BECAUSE THAT'S WHAT THE HAGUE ALLOWS FOR THE COURT TO DETERMINE. AND WE HAVE THAT LACKING IN THIS CASE. LASTLY, THE COURT HEARD HER QUESTION TO THE CHILDREN, AND THE QUESTION WAS RELATED TO WOULD THE CHILDREN HAVE A PROBLEM WITH YOU DIRECTING THEM TO GO BACK TO MEXICO. AND I WILL SUBMIT TO YOU, YOUR HONOR, ANYONE THAT KNOWS OF MEXICAN CHILDREN THAT ARE RAISED IN A GOOD FAMILY, AS THESE CHILDREN HAVE BEEN, THEY'RE TAUGHT TO RESPECT AUTHORITY. AND IT WOULD BE INAPPROPRIATE FOR THEM TO SAY THAT THEY WOULD NOT ABIDE BY THE COURT'S ORDER. TO UTILIZE THE RESPONSE THAT THEY WOULD HAVE NO OBJECTION TO THE COURT ORDERING THEM TO BE SENT TO MEXICO IS A CONVOLUTION OF ARTICLE 13'S PURPOSE AND, I BELIEVE, INAPPROPRIATE, YOUR HONOR. MR. HILTON: YOUR HONOR, MAY I BRIEFLY RESPOND TO THAT? THE COURT: SURE. MR. HILTON: JUST AS A WAY OF PREFACE, YOUR HONOR, MY LEGAL PRACTICE IS LIMITED TO ISSUES OF INTERNATIONAL CHILD CUSTODY AND INTERSTATE CHILD CUSTODY. IN DOING THIS, I'VE READ NUMEROUS CASES AND DECISIONS FROM AUSTRALIA -- MR. FLORES: EXCUSE ME, YOUR HONOR, WITH REFERENCE TO THIS ARGUMENT, I CAN, AS WELL, ESPOUSE MY EXPERTISE. I WOULD PREFER FOR HIM, YOUR HONOR, TO SUBMIT ARGUMENT IF HE HAS ARGUMENT, AS OPPOSED TO TELLING US HOW MANY CASES HE'S READ. MR. HILTON: I WOULD LIKE TO CONTINUE, YOUR HONOR. I'VE READ CASES ON THIS PARTICULAR ISSUE ON AGE AND MATURITY, AND THE PARTICULAR METHOD THAT THE COURT HAS USED SEEMS TO BE IN ACCORD WITH THE DECISIONS OUT OF CANADIAN, BRITISH, AUSTRALIAN, AND TO SOME EXTENT SWEDISH COURTS. THIS IS NOT A CUSTODY PROCEEDING. WE'RE LOOKING FOR A SUMMARY PROCESS. IT'S RARE INDEED DO WE HAVE -- EVEN HAVE THE EVALUATION DONE. IN MOST CASES THE DECISION IS JUST MADE BASED ON THE AGE OF THE CHILD, AND THAT'S ABOUT IT. MR. FLORES: EXCUSE ME, YOUR HONOR. I'M GOING TO OBJECT TO THIS WHOLE LINE -- THE COURT: THIS IS ARGUMENT. HE'S NOT CITING AUTHORITY. MR. HILTON: YOUR HONOR, I BELIEVE THIS IS NOT OUT OF TUNE WITH THE WAY THAT THIS IS NORMALLY DONE IN THE INTERNATIONAL ARENA. ONE OF THE INTERESTING THINGS ABOUT THIS TREATY, WHICH IS ENFORCED IN 40 SOME ODD COUNTRIES, THEY ALL USE THE SAME LANGUAGE, AND THE CONCEPT HERE IS TO RETURN THE CHILDREN TO THE HABITUAL RESIDENCE, SO IF THERE ARE ISSUES, THE COURT HAS THE JURISDICTION HERE IN MEXICO TO RESOLVE THAT ISSUE. MR. FLORES: YOUR HONOR, IF I MAY, JUST FOR ARGUMENT SAKE, IN THE AUTHORITY'S MOVING PAPERS, THERE'S REFERENCE IN THE MINUTES WITH REFERENCE TO WHAT MR. HILTON HAD SUBMITTED AS A FRIEND OF THE COURT IN THOSE MINUTES, AND THOSE ARE ATTACHED TO THE INITIAL PLEADINGS THAT WERE FILED BY THE CENTRAL AUTHORITY. IN THE MINUTES THERE'S A REFLECTION AS TO SOME REPRESENTATIVES OF A COUNTRY ARGUING ABOUT THE DELAYS THAT WOULD TAKE PLACE WITH REFERENCE TO COURTS REQUIRING EVALUATIONS, SO THAT I BELIEVE IT'S A MISSTATEMENT OF EVEN THE PAPERS THAT THE COURT HAS BEFORE THEM THAT THERE ARE INSTANCES WHERE YOU HAVE EVALUATIONS TAKING PLACE. AND IN FACT TO THE EXTENT THERE'S BEEN ARGUMENT AMONG THE HAGUE PEOPLE, THAT THERE'S BEEN ACTUAL DELAY WHERE THERE'S BEEN THREE, FOUR MONTHS DELAY IN GETTING REPORTS BACK TO THE COURT, AND THEREFORE CURTAILING THE EXPEDITIOUS ASPECT OF THE DESIRE OF THE HAGUE. BUT I WOULD SUBMIT THAT, YOUR HONOR. MR. HILTON: NO FURTHER COMMENTS, YOUR HONOR. THE COURT: WELL, I NOTE THAT IN ARTICLE 16 THERE'S NOT EVEN TO BE AN INVESTIGATION ON THE MERITS OF CUSTODY UNTIL THERE'S A DETERMINATION THAT I'M NOT GOING TO SEND A CHILD BACK, SO -- AND I HAVEN'T MADE THAT DETERMINATION. SO MY PRIOR FINDINGS AND ORDER WILL STAND, AND I HAVE SIGNED THE ORDER MODIFYING IT TO INDICATE THE RETURN DATE WOULD BE ON FEBRUARY 8TH AT NOON, AND YOU CAN ACCOMPANY PETITIONER/FATHER, UNLESS THERE'S SOME OTHER APPROPRIATE PERSON? MS. HEIM: THAT'S FINE. THANK YOU, YOUR HONOR. MR. HILTON: THANK YOU. MR. FLORES: THANK YOU, JUDGE. (WHEREUPON, THE PROCEEDINGS WERE CONCLUDED.) STATE OF CALIFORNIA ) COUNTY OF SANTA CLARA ) I, ANITA L. WOODRUFF, HEREBY CERTIFY: THAT THE FOREGOING IS A FULL, TRUE AND CORRECT TRANSCRIPT OF THE PROCEEDINGS HAD IN THE ABOVE-MENTIONED ACTION TAKEN FEBRUARY 4, 1997; THAT IT IS A FULL, TRUE AND CORRECT TRANSCRIPT OF THE EVIDENCE OFFERED AND RECEIVED, ACTS AND STATEMENTS OF THE COURT, ALSO ALL OBJECTIONS OF COUNSEL AND ALL MATTERS TO WHICH THE SAME RELATE; THAT I REPORTED THE SAME IN STENOTYPE TO THE BEST OF MY ABILITY, BEING THE DULY QUALIFIED AND ACTING OFFICIAL COURT REPORTER OF SAID COURT, AND THEREAFTER TRANSCRIBED THE SAME INTO TYPEWRITING AS HEREIN APPEARS. DATED: February 19, 1997 /s/ Anita L. Woodruff ANITA L. WOODRUFF CSR NO. 10776 OFFICIAL COURT REPORTER -------------------- 1. The record read by the reporter is the statement made by the court at the very beginning of the transcript. =========================================================== EPILOGUE On 06 Feb 1997 Sidney C. Flores, Esq., counsel for Ms. Salto, filed a NOTICE OF APPEAL on the basis that Family Court Services " . . . failed to provied an adequate investigation in that the minor children of this action were not interviewed properly and were not given the opportunity to object to the removal from the status quo custody of Defendant." Simultaneously Mr. Flores moved the trial court for an ex parte order staying the return order pending the appeal. The application for the ex parte order was submitted to the court at about 10:00 a.m. on Friday, 07 Feb 1997. A local rule requires that before the Court acts on an ex parte order, opposing counsel must be given 24 hours notice. Since there was an intervening weekend, the local rules would have the response submitted on Monday, 10 Feb 1997, at 10:00 a.m., which it was. In the meantime 08 Feb 1997 came around and, pursuant to the order of the court (which had not been stayed), the children left California for Mexico with their father. By a telephone call from the District Attorney's office a few days later it was learned that the children and their father were back in Mexico and a fiesta was in progress. From a notice received from the Court of Appeal it would appear that the appeal is still before the court, at least as of 13 Feb 1997. Done on: 22 Feb 1997 by William M. Hilton, CFLS.