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Legal Principals and the Standard of Review

The Hague Convention is designed to secure “international cooperation regarding the return of a child wrongfully taken by a parent from one country to another . . . .” (Mendoza v. Miranda (C.D. Cal. 2007) 525 F.Supp.2d 1182, 1189; see Mozes, supra, 239 F.3d at p. 1069; see also Abbott v. Abbott (2010) 560 U.S. 1 [176 L.Ed.2d 789].) Both the United States and Mexico are parties to the Convention. (Bardales v. Duarte (2010) 181 Cal.App.4th 1262, 1270, fn. 7.)

Under the Convention, a person claiming a child has been wrongfully removed or retained may file a petition in an appropriate court where the child is located requesting the child’s return. (42 U.S.C. § 11603(b); Bardales v. Duarte, supra, 181 Cal.App.4th at p. 1270.) State and federal courts have concurrent jurisdiction over actions arising under the Convention. (42 U.S.C. § 11603(a), (d); Chafin v. Chafin (2013) __ U.S. __ [185 L.Ed.2d 1, 8-9]. )

“The Hague Convention seeks to deter parents from abducting their children across national borders by limiting the main incentive for international abduction—the forum shopping of custody disputes. [Citation.] A court that receives a petition under the Hague Convention may not resolve the question of who, as between the parents, is best suited to have custody of the child. [Citation.] With a few narrow exceptions, the court must return the abducted child to its country of habitual residence so that the courts of that country can determine custody.” (Italics added; Cuellar v. Joyce (9th Cir. 2010) 596 F.3d 505, 508.)

The retention of a child is “wrongful” under Article 3 of the Convention 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.” (Mozes, supra, 239 F.3d at p. 1070.)

Title 42 United States Code section 11603, subdivision (e)(1) provides in pertinent part:

“A petitioner . . . shall establish by a preponderance of the evidence--

“(A) in the case of an action for the return of a child, that the child has been wrongfully removed or retained within the meaning of the Convention.”

Therefore, it is the petitioner’s burden to establish a “wrongful” removal or rentention by a preponderance of the evidence. (In re Marriage of Forrest and Eaddy (2006) 144 Cal.App.4th 1202, 1211.)

“Thus, in order to prevail on a claim under the Hague Convention a petitioner must show that (1) the child was habitually resident in one State and has been removed to or retained in a different State; (2) the removal or retention was in breach of the petitioner’s custody rights under the law of the State of habitual residence; and (3) the petitioner was exercising those rights at the time of the removal or retention.” (Gitter v. Gitter (2nd Cir. 2005) 396 F.3d 124, 130-131; accord, Mota v. Rivera Castillo (2nd Cir. 2012) 692 F.3d 108, 112; Friedrich v. Friedrich (6th Cir. 1993) 983 F.2d 1396, 1400.)

II

The Petition at Issue

Here, mother’s petition alleged she was entitled to the return of Leosandro because Leosandro’s habitual residence was in Mexico immediately before father removed Leosandro to the United States on February 2, 2012; mother had a right to custody of Leosandro under Mexican law; and mother was exercising her custodial rights at the time of the removal.

The trial court concluded that mother had failed to prove by a preponderance of the evidence that Mexico was Leosandro’s habitual residence. Specifically, the trial court ordered:

“a. the court finds that there have been varying versions of the events offered by the various witnesses as it relates to the removal of the child from Mexico.

“b. The court finds that Petitioner’s testimony was not credible.

“c. The court finds that the moving party, Petitioner has not met the burden of proof by a preponderance of the evidence and therefore the burden to prove habitual residence has not been met. Inasmuch as the burden has not been met, the court declines to make a finding or order as to the child’s country of habitual residence.”

Below these orders, the trial court wrote in longhand, “Court finds the moving party is required to prove by a preponderance of evidence that the child was removed or retained from the place of habitual residence. The moving party did not [meet] this burden.”

As earlier noted, mother contends that the court erred in not determining whether Mexico or the United States was the place of the child’s habitual residence and that the trial court was required to do so.

In support of her argument, mother points to the critical nature of the determination of the place of the child’s habitual residence, relying heavily on the Ninth Circuit’s holding in Mozes where the court said, “A court applying [the Article 3 provisions] must . . . answer a series of four questions: (1) When did the removal or retention take place? (2) Immediately prior to the removal or retention, in which state was the child habitually resident? (3) Did the removal or retention breach the rights of custody attributed to the petitioner under the law of the habitual residence? (4) Was the petitioner exercising those rights?” (Mozes, supra, 239 F.3d at p. 1070.)

We appreciate the critical nature of the finding of habitual residence. As can be seen from the Mozes court’s discussion, a court cannot answer the question of whether the removal or retention breached rights of custody except against the backdrop of the laws of the place of habitual residence.

But mother gleans from this a requirement that under a Hague Convention petition the court must, in all circumstances, make a finding of the child’s habitual residence irrespective of the statutory burden of proof mandated by 42 U.S.C. section 11603(e)(1). Mother does not acknowledge the provisions of section 11603(e)(1) except to agree that mother had the burden of establishing that Leosandro’s taking was wrongful. Mother makes no argument as to why the statute must, for some reason, be ignored.

We note that in Mozes and in the other cases cited to us, that the trial court had made a finding of habitual residence during the trial proceedings and the issue on appeal was whether that finding was supported by the evidence. No case has been cited to us, nor are we aware of any, that supports a conclusion that the trial court is required to make a finding of habitual evidence without regard to petitioner’s burden to prove the allegations necessary to the petition by a preponderance of the evidence.

We further note that mother has not argued here that the court erred because the evidence was sufficient to compel a finding that Mexico was Leosandro’s habitual residence. We have not been asked to decide that question.

Mother also argues that the trial court was required to make a finding that Leosandro was a habitual resident of Mexico or of California because to do otherwise implies that he is a habitual resident of California and that his taking by his father was with mother’s permission.

Citing Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42 (Fladeboe), mother enlists the doctrine of implied findings to support her argument that the court’s ruling implied that California was Leosandro’s place of habitual residence and that his taking was with mother’s permission. Mother’s reliance on the doctrine of implied findings is misplaced.

“The doctrine of implied findings requires the appellate court to infer the trial court made all factual findings necessary to support the judgment. [Citation.] The doctrine is a natural and logical corollary to three fundamental principles of appellate review: (1) a judgment is presumed correct; (2) all intendments and presumptions are indulged in favor of correctness; and (3) the appellant bears the burden of providing an adequate record affirmatively proving error. [Citations.]” (Fladeboe, supra, at p. 58.)

Mother cites the doctrine for other than what it is and asks us to infer, not those findings necessary to support the judgment, but instead “findings” outside the judgment. That is not the function of the doctrine of implied findings.

While the trial court’s order could have been clearer, explaining for instance the testimony that it did not find credible, we cannot read such “implied” findings into the trial court’s ruling. That ruling was straightforward, at least on the question of habitual residence: mother’s evidence was insufficient to carry her burden of proving by a preponderance of the evidence that Leosandro’s habitual residence was in Mexico. There is no finding there, implied or otherwise, that Leosandro’s habitual residence is California or that mother gave Leosandro’s father permission to take him to the United States. We recognize that in this case, and no doubt in the great majority of cases, the dispute lies between only two possible places of habitual residence. But the finding that petitioner has not proven one of the two does not constitute a finding that the child is a habitual resident of the other.

Mother’s proof on the petition having failed, the trial court made no error in denying her petition.

Disposition

The order denying mother’s Hague Convention petition is affirmed. Father is awarded his costs on appeal. (California Rules of Court, rule 8.278 subdivision (a)(2).)


HULL , Acting P. J.

We concur:




DUARTE , J.


HOCH , J.





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