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 This post also appeared in the LACBA Family Law ENews.
A recent Hague Abduction Convention case out of Mono County illustrates how the defenses to return under the Convention can be stretched to defeat the core purpose and policies of the treaty. In Escobar v. Flores (2010) __ Cal. App 4th __, 2010 WL 1347107, the DCA3 applied the deferential abuse of discretion review standard to uphold a family law judge’s refusal to return an eight-year-old boy to Chile under the Abduction Convention based upon the child’s stated “mature” preference to remain with his father in the U.S.
The Hague proceedings in Escobar represent one installment in a self-help international moveaway case involving never-married parents. Apparently without consulting counsel, the father agreed that the mother could take then 4-year-old Cesar to Chile in 2004. Dad testified that he agreed to a seven-month visit to relatives, and expected Cesar to return with his mother to Mammoth Lakes. Mom testified that it was to be a permanent move. When mother and child did not return, Dad did not petition for Cesar’s return under the Convention. In 2005 Mom obtained a custody decree in Chile. Dad married, and moved to North Carolina.
Mom sent the now eight-year-old Cesar to visit a maternal aunt in California in 2008. She did not register the Chilean custody orders for enforcement in California under Cal-UCCJEA. When Dad found out Cesar was in California, he sought emergency custody orders from the Mono County family court, and received permission to take his son to his new home in North Carolina. Mom responded with a Hague Abduction Convention petition for return Cesar to Chile. The family court concluded that the 8-year-old Cesar’s testimony about his experiences living with each parent established his mature objection to returning to Chile – a defense to return under Article 13 of the Abduction Convention.
The lesson for international custody practitioners is that an action to register and enforce a foreign child custody decree under California’s version of the Uniform Child Custody Jurisdiction and Enforcement Act (Cal-UCCJEA) is usually the better course of action, because there are fewer defenses, and because American family law judges are apt to be more familiar with Cal-UCCJEA principles. If Mom had registered the Chilean order for enforcement by the Mono County family law court, the judge could not have considered Cesar’s wishes. Chile had exercised jurisdiction under factual circumstances consistent with Cal-UCCJEA, so California would be obligated to enforce the Chilean orders and refrain from modifying them unless Dad proved that Chilean custody law violates fundamental human rights. (Fam. Code §3405).
On the other hand, when a parent seeks return of a child from California under the Hague Convention on the Civil Aspects of International Child Abduction, the action may be brought by the District Attorney, sparing the party the expense of private counsel.
The Abduction Convention and Cal-UCCJEA each require jurisdictional determinations be made without regard to the child’s best interests. Each was adopted to deter forum shopping and competing child custody orders. While Cal-UCCJEA provides for international recognition and enforcement of child custody orders, the Abduction Convention merely offers the summary remedy of returning the child physically to the country of the child’s habitual residence. The U.S. is not a party to any treaty or bi-lateral agreement for recognition and enforcement of custody orders.
The policy underlying both the Abduction Convention and Cal-UCCJEA is that the court deciding which court has jurisdiction to decide custody must not make its own “best interests” determination. Understandably, family courts accustomed to making best interests determinations find this very difficult to do in practice.
Under the Convention, a court must order a child returned to the nation of the child’s habitual residence where the child has been wrongfully removed, or retained in violation of a parent’s rights of custody. The purpose of return is so that the court in the child’s place of habitual residence can make or enforce custody orders.
However, it is clear that the nations negotiating the Convention were reluctant to give up the power to decide not to return children on a case-by-case basis. Article 13 contains a number of defenses to return – and permits the court to deny return based upon the child’s “mature” objection.
Here the exception has swallowed the rule. The International Child Abduction Remedies Act (ICARA) directs American courts to construe those defenses narrowly and return children promptly. (42 U.S.C.A. § 11601; England v. England (200) 234 F.3d 268). Typically the cases where the defense succeeds involve teenagers, not second-graders. See de Silva v. Pitts (2007) 481 F.3d 1279 for a more detailed discussion of the child’s mature objection defense cases.
Moreover, a young child’s expressed preferences need to be assessed and interpreted in context, ordinarily as part of a full child custody evaluation. (See the discussion at p. 15 of the ACFLS Comments to the Draft Recommendations of the Elkins Family Law Task Force (www.acfls.org/Elk) and Warshak (2003) Payoffs and Pitfalls of Listening to Children, 52 Family Relations, 373–384. Eight-year-olds do not have a mature concept of time or the capacity to assess their long-term best interests. Typically their most recent experiences shape their views. Moreover, children in contested custody disputes are subjected to intentional and unconscious parental influence. Once can’t determine whether their views are independent without a comprehensive child custody evaluation. This child’s preferences were properly a matter for the Chilean Court, not the California Court, to assess when it considered custody on its merits.
Of course, denying the return petition based upon the child’s objection doesn’t end the case. Thereafter, an American state must exercise jurisdiction under Cal-UCCJEA criteria, and make a best interests determination based upon all of the best-interests factors, not just Cesar’s preference. At least theoretically, a hearing on the merits could result in an order for this child to live in Chile with his mother. Since neither parent, nor Cesar lives in California, it is likely that North Carolina would end up with jurisdiction over custody.
By not sending Cesar back to Chile, the court has made it impossible for the child’s time to be divided between his parents’ homes. It seems probable that if Cesar was physically present in Chile, Chile would prohibit further removals to the U.S. because the U.S. has failed to honor its jurisdiction. One wonders whether Chile would return Cesar if the father was the parent bringing a subsequent Abduction Convention petition. The U.S. would be the child’s habitual residence under the Convention.
There’s also an embedded, and unanswered jurisdictional question. Does a court’s decision not to return a child under the Abduction Convention thereby terminate the foreign jurisdiction’s exclusive and continuing Cal-UCCJEA jurisdiction so as to permit California or North Carolina to make custody orders on the merits?
Consensual Dispute Resolution (CDR) might have saved this family a lot of grief and expense. The National Council for Missing and Exploited Children is working with the University of Pennsylvania Law School and the University of Miami Law School that is studying the suitability and effectiveness of mediation in cases involving international child abduction. Teams of mediators are available in the pilot project to assist families.
I’m sure that we have all heard that the State, City and Court budget problems are not due to Prop. 13, the elimination of taxes on corporations and the wealthy, or any other cause except welfare programs and waste in unionized civil service functions. This week I learned some about what really goes on, at least within the Court system.
I needed to find an old paternity case, which had been filed in Santa Monica. The clerk in the Santa Monica courthouse was able to find the case on the computer system with ease (I guess all that data entry is part of the wasteful unionized labor going on behind the scenes). She told me that the clerk’s records indicated that the file had been sent to the Archives section, in the Hall of Records.
So, one day after morning L&M (not even slightly like S&M – really) I strolled over to the Archives section. Again, a clerk initiated a search, and was able to find the “incoming files” record, and assured me that the file had not yet been sent by Santa Monica to the Archives. So, back to Santa Monica, armed with that information.
This could have incited the Santa Monica clerks to give me a more ‘businesslike’ response, like shrugging their shoulders and asking “Whaddya want me to do aboudit?” Instead, the horribly inefficient, unionized, lazy, etc. etc. clerk asked me to wait. About 20 minutes later, the clerk returned with a printout of records (wastefully generated at taxpayer expense) which indicated that files from number SF xxx xxx through SF xxx xxx (numbers bracketing my file #) had been shipped to the Archives on October 30, 2009, in “box #xxx”. The clerk said that using the box number might make it easier for the Archives people to find the file. He then gave me a number to call to talk to an Archives supervisor.
Rather than going back downtown, I called the supervisor. Yes, she said, the box number would make it easier to confirm whether the file had arrived. After another 15 minute wait she came back on the line and confirmed that box xxx was there, still on a pallet, wrapped in plastic, on the loading dock, because they hadn’t had a chance, or the manpower, since October to intake it. Because it still sat on the loading dock, the incoming files records had not yet been updated, so the original archives clerk who said it wasn’t there was actually working from the most current information available to him.
With a request for a file from the box, that pallet apparently goes to the head of the line for processing. The supervisor told me that she hopes that the file will be on her desk by lunchtime today, so that I can review it this afternoon.
Through all of this, not one of the clerks complained about my request, my insistence that they look further, or about too much work to do. But the supervisor was apologetic in every sentence when talking to me. “I’m really very sorry, but we’ve just lost 40% of our staff, and you can see from boxes sitting on the loading dock that we didn’t have enough people before the cuts.” She didn’t ask me to call my County Supervisor, or the presiding judge. She just apologized for the conditions under which all the clerks labor.
While the Santa Monica clerk was looking for the records, on my second trip, a long line of people formed, waiting to see a clerk. Santa Monica courthouse now has many more clerk windows than clerks to fill them. Just as the clerk returned with the shipping records, a man walked up to the window, apparently familiar with the procedure and asserting priority to cut to the head of the line. He pushed through the window a bag from Subway. The clerk accepted the sandwich and started to deal with it, even as he dealt with the line that had built up behind me. Multi-tasking indeed.
I wonder how many clients lose how much time, or incur how many bills, because we are slashing away at the muscle which makes the court system function. When we cut them all, leaving just a skeleton of a court system, will any justice be dispensed?
Thomas M. Hall
Law Offices of Michael L. Abrams
11766 Wilshire Blvd., Sixth Floor
Los Angeles, CA 90025
(310) 268-1000
 This is my third attempt to write this blog from the new iPad WordPress app. The ACFLS blog and website are constructed using WordPress, so I was excited to download the app. Last week my first attempt to blog from Finney was scuttled when WordPress asked for a setting change for the site. Webmaster Bonnie Riley (by day she is a lawyer editing family law producers at CEB) tweaked the settings. Today I had no difficulty logging on from Finney the iPad (Note to Apple– women associate the name with a personal feminine hygiene product, not a legal pad. I cringe when I say or write IPad. Finney was my childhood neighborhood library).
So I wrote a detailed blog and tapped “save.” the post vanished and couldn’t be recovered. So I began again. Now “save” works just fine. In fact, I began this post from my family room and I am finishing it in a booth in Dos Arbolitos, while waiting for my huevos rancheros.
So where was I? Oh yeah, i am writing this on the onscreen keyboard. For long projects the external keyboard is better, but I have to have a stable surface or the iPad wobbles and looses it’s seating on the USB mount. Usually it is more convenient to just use the touchscreen. I do find that I do not use all of my fingers when typing. Even with the click sounds activated, I am looking at the keyboard since it is on the same screen as my text. I still hit the m or n instead of the spacebar too often.
I have now learned how to move documents back and forth between Finney and my computer via iTunes, mounting Finney wirelessly as another drive using the Airshare app, posting documents via MobileMe to my iDisk, or using the Goodreader app. Pages on the iPad doesn’t recognize the Word docs, so I may find myself using Google docs. From what I have read, use of a newer version of the Pages program on my laptop may be the answer.
I prefer Finney to paper, Kindle or the laptop screen for reading documents. Today I’ll be reading the Elkins Family Law Task Force report in PDF. There are apps that let you annotate a PDF.
One really, really disappointing feature is cut/paste/copy. One can’t mark a start and stop place. Either one applies the function to a single word, or to the entire document. There isn’t even the option of cutting/pasting/copying by sentence or paragraph.
In my last post, I said one can watch TV at Hulu.co, but Hulu uses Flash video rather than HTML5, and iPads do not run Adobe’s Flash. Apple says Flash uses too much battery life. The techie websites indicate that there are conversion options on the horizon. The most annoying Flash issue arose when I subscribed to the e-edition of the L.A. Times. The Times failed to disclose that this is a Flash based service that cannot be read on the iPad. My email complaining and canceling has not been answered. On the other hand, KCET (the local PBS station) announced that one can watch it’s shows on the iPad.
Mac Mail and Calendar are enhanced and beautiful on the iPad — searchable versions of a paper Daytimer-like book. They sync in the background via MobileMe. I’ve read that Google Calendar is another good alternative.
So I do my morning email on Finney and read the online newspapers. I’m particularly enjoying some news aggregators — Fluent News and SkyGrid. I also really like Instapaper, which lets one save articles for off line reading. I carry Finney with me for reading, calendar, and notetaking. It is instant on, instant off. No booting up a computer or waiting for a program to load. The battery life is astonishing. I think I’d be comfortable using it on a motion hearing with the key docs in PDF form (unusually bring the laptop to hearings as we scan all pleadings and I prefer not to wrangle multiple Bindertek volumes for most things.
Finney doesn’t replace my computer (I work on a MacBook Pro). Finney doesn’t replace my iPhone. But Finney does many things better than either and is carving out a new role for itself in my workday and recreational life.
Some of you sent emails after my last iPad blog. Please consider posting a comment instead by clicking on “Comment” below.
So now that I have composed this post on Finney, I find that WordPress gives me no clue how to upload it. If you see the blog, you’ll know that I figured it out.
P.S. I forgot to say that I solved the instant messaging issue. I turned notifications on for AIM in settings, and then set my preferences in AIM not to log out for 24 hours. Now when I’m using Finney, any instant messages pop up and give me the option to view them and respond. My new MacBook Pro with the current version of iWork arrived today. When I finish getting several more tasks done, I’m going to migrate from the 2006 MacBook Pro to the brand new 2010 MacBook Pro. My CrashPlan harddrive also arrived today. As soon as the new MacBook is working smoothly, I’ll be backing it up to CrashPlan’s hard drive, shipping it back to them and then updating via the cloud whenever I am on line.
 Here are my thoughts about the iPad after a week of using it. My keyboard dock arrived today, and makes typing much easier. I am writing this on my lap using the keyboard dock. The screen keyboard is much easier to use than contemplated, but I have a bad tendency to hit the m and n instead of the spacebar. That doesn’t happen with the dock, and the dock works more conventionally. One cool thing about the screen keyboard, though, is that it changes configuration to match the task at hand. I did most email on it for almost a week until the keyboard dock arrived today.
What is it? It isn’t a computer running the Mac OSX or Windows. It isn’t a big iPhone or iPod Touch. It isn’t an e-Reader like a Kindle, Nook or Sony Reader. However, it does many of the functions that each of those devices do, in a new and incredibly easy fashion.
It won’t replace your laptop, but you can tote it easily in many settings where you don’t need the full computer. In Court, I am now able to take notes: access my calendar, emall and address book: read any file documents I’ve downloaded to the iPad; do legal research; access the web; read anything on my Kindle or the iBooks app; read newspapers and magazines; play client ed videos or do online CLE, etc.
I’m likely to bring the iPad to CLE programs and to meetings where I plan to take notes. I’m likely to do some writing on the iPad, but not major briefs or legal documents.
One major frustration is the absence of multi-tasking. I can only use instant messaging for example, when all other apps are closed. That means I don’t know if someone is trying to IM me. This will be solved in the Fall with the upgrade to the iPhone OS (they will update the iPhones in the summer and the iPads in the fall, per Apple’s announcement).
The absence of a visible file/folder system is confusing. Applications simply recognize and list documents that can be read by that application. The new OS will also let you see some sort of file folder structure.
When the iPad comes out of the box, one must connect it via USB to a Mac or PC with iTunes. I had not updated my MacBook Pro to OSX version 10.5, so I had to do that first. I was already having difficulties resulting from lack of space on my MacBook Pro, so this was a full day enterprise, culminating in a trip to the Genius Bar in the nearby Apple store when the updated iTunes didn’t recognize the device. While I was there, the genius fixed a malfunction of my Mac Mail program, but failed to back up my preferences. So I had to manually set up all of those preferences over the next few days. Rumor has it that the new MacBook Pro’s hit the stores this week. I’ve been waiting to upgrade for the new intel chips, so I’ll be on the new computer soon.
But I have been enchanted by the iPad since the Genius got it up and running. It makes my MacBook seem cumbersome — large and slow. There is no boot time on an iPad. It is instant on, instantly working. Similarly, it takes no time to start up an application or open a file. Applications close instantly with whatever document or activity you were engaged in saved. Websites open at the speed of light.
I have the 64 gig version with wifi. I did not buy the 3G model because I intend to use the Mifi cellular hotspot device which lets me have five devices (my iPhone, my iPad, my MacBook Pro and two friends) on line at the same time. The first one Sprint shipped was defective, but the new one is here and ready for me to configure.
The screen is large, and clearer than any computer display I’ve ever seen. Television and movies are unreal on this device (you can get them thru the Netflix app, the ABC app, Hulu.com and the iTunes store). I’ve just tested the free TV at ABC and it is quite amazingly pleasurable to watch on this device.
How will I use it? Reading, websurfing, taking notes, writing short pieces, watching video, playing games, etc. It is seductively small, light, and accessible. Have I said clearly enough that everything is INSTANT! No waiting for things to open or close or download.
Email is actually easier on this device, but not for storage since you can’t set up dedicated mailboxes or save emails to client folders on a computer hard drive. All of that gets done on my computer, but I can read and respond on the fly with copies going to the computer for filing.
You can’t print directly from an iPad. You can move files to it via usb using iTunes, but you can’t use a flash drive or a physically connected external drive. Moving files is basically done through the cloud.
Apple’s Pages app theoretically recognizes word .doc files, but in practice has not located the .doc files that I have downloaded to this device via Apple’s cloud application — iDisk. I haven’t configured the Air-sharing app on the Mac yet — but that application which treats an iPad or an iPhone as if it was another drive on the computer may solve the problem. Apple touts iWorks, which includes a website for sharing, storing and collaborating on Pages documents. But I have an old version of iWorks on the MacBook, and am not going to upgrade there since I plan to get the new MacBook ASAP.
The QuickOffice App that imitates Microsoft products on the iPhone just crashes on the iPad. People are having good success with Google docs and various applications that work with that platform. I haven’t set up Google docs.
I can open and read .doc and .pdf files that I have moved to the iPad via iDisk using the GoodReader app. The iPad opens all document, spreadsheet and pdf attachments to email and lets me read them, but there appears to be no way to save them or edit them.
There is no way to add fonts to the iPad — one is stuck with the bundled font set.
There are a number of well-reviewed applications that let the iPad serve as a remote terminal for your PC or Mac. This seems to be the way to go if you need to access files or functions on the road.
When you set up the iPad, iTunes syncs your iPhone apps to your iPad and there is no extra charge for running them on the iPad. Some prove unnecessary because things just work better in Safari on this device — I took off the dedicated Huffington Post and Facebook apps, for example. Those sites are beautiful in Safari and don’t need the abbreviated apps. Other apps have improved iPad versions, so I deleted the iPhone clunky version and downloaded the dedicated iPad app.
All of my dedicated law iPhone apps, including the various versions of the California Codes and Rules of Court, work beautifully on this device. Fastcase lets me access every case and statute in the country. I haven’t tried Westlaw yet in Safari, but I don’t anticipate any difficulties. My apps that count court days and deadlines work beautifully. LawBox connects to various family law blogs — one can set it for the subscriptions one wants. There are a number of web-based judicial council forms sites that may be functional in a pinch.
This is my fifth e-reading device. I began with the RCA Rocket with its dialup modem. I still have a Sony Reader full of books. I’m on my second Kindle (a Kindle 2) and I also use the Kindle App on my iphone. But I’ve not used the Kindle more than once since the iPad arrived. Books on the Kindle app are more beautiful, display more content (meaning fewer page turns) and have color illustrations. The hyperlinks are fast and effective. The IBook app is also absolutely beautiful.
I haven’t found that the backlighting is causing any eyestrain. I like reading it in bed with the lights off. I love the color pictures and the hyperlinks. I still need my New Yorker subscription on the Kindle because the digital New Yorker is not user-friendly – one must keep zooming in and out. But I hear they are working on a tablet version. I plan to cancel my Kindle LA Times and NY Times subscriptions as I have been reading them on the iPad all week in their web incarnations.
So this device already seems indispensable because of size, speed and versatility. I lug my MacBook around to lots of places where the iPad will work well. Having an iPad in my purse instead of a Kindle gives me much more functionality. I can do most of the same things on the iPhone — but not all. And the iPhone now seems so small, cramped, awkward and slow.
Next step: I plan to add Timeslips remote to my Timeslips program (running in Windows XP under Parallels on the MacBook Pro) and then download iSlips to the Kindle so that I can bill the work I do on this device. I’m also thinking of downloading the WordPress app for blogging rather than pasting this text into WordPress at our blog site.
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