Paul J. Durbin FAMILY COURT Attorney At Law First Circuit Court 735 Bishop St, No. 309 State of Hawaii Honolulu, HI 96813 Filed: 1:00 p.m. (808) 531-7924 Mar 20, 1992 C. Miura, Clerk Attorney for Petitioner FAMILY COURT OF THE FIRST CIRCUIT STATE OF HAWAII Barbara E. Salvador ) FC-M No. 92-0208 ) Petitioner, ) ORDER GRANTING MOTION FOR RETURN ) OF CHILDREN TO PETITIONER, FILED vs. ) MAR 11, 1992 ) Wilfredo B. Salvador ) Hearing: March 20, 1992 ) Judge: Linda K.C. Luke Respondent. ) ______________________________) ORDER GRANTING MOTION FOR RETURN OF CHILDREN TO PETITIONER FILED MARCH 11, 1992 Present: Paul Durbin, Attorney for Petitioner Jack Durham, Attorney for Respondent Based on the representations/record made, FN-1 IT IS HEREBY ORDERED that the above is granted. As of 10:39 a.m., March 20, 1992, Respondent shall immediately return subjct children to the custody of Petitioner, subject children are: Abby Claire Salvador, Born July 21, 1979 Rebecca Lea Salvador, Born June 29, 1982 Elizabeth Jamie Salvador, Born Feb 21, 1985 FINDINGS 1. The Hague Convention on the Civil Aspects of Child Abduction applies. 2. Per Article 3 FN-2 of the said Convention at least "de facto" custody existed wherein the Petitioner Barbara E. Salvador had the de facto custody of the children in New Zealand FN-3 at the time of the retention of the children in Hawaii. 3. Pursuant to Article 3 of the Convention the children had been habitually residing in New Zealand from February 1991 until December 1991. 4. Petitioner had at her own expense made arrangements for visitation of the hcildren with the Respondent father and such visitation did occur during the children's holiday break from school. 5. Per Article 3 of the Convention there was at least a breach of Petitioner's de facto right of custody. 6. Per Article 13 FN-4 of the Convention the court cannot conclude there is any great risk to the children if the children are returned to the care and custody of the Petitioner in New Zealand. IT IS THEREFORE ORDERED 1. Petitioner's motion for temporary relief is granted. 2. Petitioenr shall have temporary custody of the subject children immediately. The children are: Abby Claire Salvador, Born July 21, 1979 Rebecca Lea Salvador, Born June 29, 1982 Elizabeth Jamie Salvador, Born Feb 21, 1985 3. The Petitioner's attorney fees and costs shall be paid by the Respondent. The reasonableness of such fees and costs shall be subject to further hearing. 4. Any subsequent proceedings involving custody of these chidlren shall be in the New Zealand Courts. FN-5 5. This ruling is based on the court's interpretation of the Hague Convention and not on any custody orders issued by the New Zealand Court. FN-6 6. This is not a permanent custody order. FN-7 Dated: Honolulu, Hawaii Mar 20 1992 /s/ Linda K.C. Luke _________________________________ JUDGE OF THE ABOVE ENTITLED COURT Approved as to form and content: /s/ Paul J. Durbin _____________________ Attorney for Petitioner /s/ Jack Durham ______________________ Attorney for Respondent /s/ (Illegible) _______________________ Guardian Ad Litem -------------------- 1. WMH Note: The record shows that the children had been living in Japan at a US Military base for several years. The parents separated in Japan and, by agreement, the children and the mother moved to the family home in New Zealand in about Feb 1991. By agreement they came to Hawaii for a winter break in Dec 1991, to be returned in early Jan 1992. The father called the mother and told her that they would be be returned. 2. WMH Note: The removal or the retention of a child is to be considered wrongful where -- (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State. 3. WMH Note: The Department of Justice of New Zealand provided a certificate to the Central Authority of the U.S. that, under New Zealand law, both parents have a right of custody within the meaning of Article 3. 4. WMH Note: This must refer to Art 13(b): (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. 5. WMH Note: Art 19: A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue; See also 42 U.S.C. 11601(b)(4): The Convention and this Act empower courts in the United States to determine only rights under the Convention and not the merits of any underlying child custody claims. 6. WMH Note: The New Zealand Courts had issued an ex parte order for custody of the minor children. It is possible that the court made this statement because of the language of 9 Uniform Laws Annotated 23 which requires notice and opportunity to be heard before an order from a foreign nation can be enforced. But see Suarez Ortega v Pujals de Suarez (Fla.App. 1985) 465 So.2d 607 where an ex parte order from Mexico was enforced on the theory that Florida ex parte orders are routinely enforced and that there would be a hearing in Mexico. 7. See footnote 5 (above).