In 2003, Bardales met Duarte and the two younger children in Tijuana. Bardales returned to California with the children and immediately initiated state court proceedings to prevent Duarte from taking the children back to Mexico.
As part of the state court proceedings, in April 2005, Bardales filed a petition to establish a parental relationship with the children and for sole physical and legal custody of the children. In his petition, Bardales alleged Duarte's boyfriend had sexually abused the two older children. In addition, he alleged Duarte knew of the abuse yet continued to have a relationship with him. Hector further alleged he brought the two younger children to California because he feared for their safety.In June 2005, Duarte filed a petition for return of the children under the Hague Convention. Duarte alleged Bardales wrongfully retained the two older children and wrongfully removed the two younger children to the United States in violation of the Convention. She denied the children were abused or mistreated in her care and requested the court order them "returned to Mexico forthwith." She also requested the court not make any custody or visitation orders pending the outcome of her Convention petition.
The court continued the hearing on the petitions several times due to Duarte's and her counsel's inability to appear. However, when Duarte and her counsel were unable to appear for a hearing on December 2, 2005, the court declined to continue the matter again.[1] Instead, the court took Duarte's petition off calendar for lack of prosecution and indicated she would need to refile it for it to be heard again.[2] The court also took Duarte's companion matters off calendar, including her request to partition real property she and Bardales owned in joint tenancy. In addition, the court expunged a lis pendens Duarte filed against the property as she no longer had a pending matter to which the lis pendens related.
With no Convention matter pending, the court proceeded to address Bardales's petition and found he was the children's legal father, a fact which the parties do not dispute. The court then awarded him joint legal and sole physical custody of the children, with Duarte being permitted reasonable visitation. After imputing to Duarte a minimum wage income, the court ordered her to pay Bardales monthly child support of $586 and, after finding she had $52,000 equity in the real property she owned with Bardales, the court ordered her to pay sanctions of $17,500.
Duarte contends that the trial court's order is void and should be set aside because the trial court lacked subject matter jurisdiction to rule on child custody and related issues. More particularly, Duarte contends that under the Convention and federal law, including the supremacy clause of the federal Constitution, the trial court could not decide these issues until it adjudicated the merits of her Convention petition. Essentially, she contends the trial court had no power to dismiss her Convention petition for delayed prosecution. As this contention presents a question of law, we review the matter de novo. (In re Marriage of Witherspoon (2007) 155 Cal.App.4th 963, 971 [in Convention matters, we review factual findings for clear error and legal conclusions de novo].)
The Convention provides for the prompt return of children wrongfully removed to or retained in contracting states. (Convention, art. 1(a).) In the United States, the Convention is implemented by the International Child Abduction Remedies Act (Act) (42 U.S.C. § 11601 et seq.). 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); Convention Legal Analysis, 51 Fed.Reg., supra, 10507.) If the court determines the child has been wrongfully removed or retained, the court must order the child's return subject to some narrowly construed exceptions, including when the return of the child would expose the child to a grave risk of physical or emotional harm, or otherwise place the child in an intolerable situation. (Convention, arts. 12 & 13; 42 U.S.C. § 11603(e)(2).) The court may also decline to order the child's return if the child objects to being returned and the child's age and maturity make it appropriate for a court to consider the child's views. (Convention, art. 13.) Similarly, if a petition is filed more than a year after the child's wrongful removal or retention, the court may decline to order the child's return if the child is now settled in the child's new environment. (Convention, art. 12.)
A court deciding a Convention petition may only determine "rights under the Convention and not the merits of any underlying child custody claims." (42 U.S.C. § 11601(b)(4).) Accordingly, "[a]fter receiving notice of a wrongful removal or retention of a child . . . , the judicial or administrative authorities of the Contracting State to which the child has been removed or in which [the child] has been retained shall not decide on the merits of the rights of custody until it has been determined that the child is not to be returned under [the] Convention or unless an application under [the] Convention is not lodged within a reasonable time following receipt of notice." (Convention, art. 16.)
Dismissal of a Convention petition for delayed prosecution might allow a defense to a subsequent Convention petition on the ground the child is settled in a new environment. (Convention, art. 12; Convention Legal Analysis, 51 Fed.Reg., supra, 10509 ["[T]he court is not obligated to return a child when return proceedings pursuant to the Convention are commenced a year or more after the alleged removal or retention and it is demonstrated the child is settled in [the child's] new environment."].) However, the existence of Convention defenses that arise or are bolstered solely by the passage of time supports the need for the trial court to have case management tools, such as the power to dismiss for delayed prosecution, to ensure Convention matters are resolved expeditiously. Additionally, we anticipate a trial court will use its inherent dismissal power sparingly and with a view toward accomplishing the Convention's objectives. We also anticipate a trial court will rarely need to dismiss a Convention petition for delayed prosecution as our review of the available authorities suggests dilatory conduct by the party seeking return of a child under the Convention is aberrational.
The trial court had the power to dismiss Duarte's Convention petition for delayed prosecution and proceed to decide custody matters
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