Opinion
Civil Action File No. 1:04-CV-1555-TWT.
June 7, 2004
ORDER
This is an action under the Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act, 42 U.S.C. §§ 11601- 11610. The Petitioner seeks to have his seven-year-old daughter returned to Mexico. It is before the Court on the Respondent's Motion to Stay the Order granting the relief requested in the Petition.
The Petitioner and the Respondent are the natural parents of Itzel Ameyalli Robles Barrios. Until November 29, 2003, the child lived with her parents in their home in Mexico. On that date, while Petitioner was at work, the Respondent fled with the child. She left a note telling Petitioner not to look for them. Through relatives and others, the Petitioner learned that the Respondent had smuggled herself and the child into the United States and was living at an address on Buford Highway in Atlanta, Georgia. The Petitioner filed an action for divorce in Mexico.
This action was filed on May 28, 2004. On June 1, 2004, I held an ex parte hearing and entered an order directing the United States Marshals to take custody of the child and bring her before a Magistrate Judge. The Order also directed the United States Marshals to serve the Respondent with the Petition and notify her of a hearing on the Petition to be held on June 4, 2004, at 9:00 a.m. The Respondent was served on June 2, 2004. The child was brought before Magistrate Judge Scofield who appointed Vionnette Reyes, a Spanish-speaking attorney, as her guardian ad litem. The Magistrate Judge released the child into the custody of the Petitioner with conditions to assure their appearance at the hearing on June 4, 2004.
On June 2, 2004, I started the jury trial of United States v. Joseph Ryan. On the second day of trial, at 4:30 p.m., I interrupted the trial to have a conference call in this case. During the conference call, an attorney for the Respondent requested postponement of the June 4 hearing because he said he needed more time to prepare. I stated that because of my trial schedule, it would probably be a month before I could reschedule the hearing. Counsel for the Petitioner objected to postponement of the hearing under these circumstances. I then told counsel for the Respondent that the hearing would have to proceed as scheduled.
On June 4, 2004, at 9:00 a.m., I held a hearing on the merits of the Petition. The Petitioner was represented by lawyers from the law firm of Kilpatrick Stockton. The Respondent was present and represented by lawyers from the law firm of King Spalding. The Petitioner and the Respondent testified at the hearing. She testified that he had hit her, locked her in a room and raped her. He denied that. There was no testimony that the Petitioner had ever abused or mistreated the child. I heard argument from counsel for both parties. The guardian ad litem recommended that the child be returned to Mexico with her father with the ultimate custody decision to be made by the courts in Mexico. I followed that recommendation and granted the relief requested in the Petition.
The Respondent moved for an order staying the Order granting the Petition. I denied the Respondent's motion to stay for the following reasons. First, the likelihood of success on appeal is low. It is undisputed that the Respondent smuggled herself and the child from Mexico into this country and that they were living here illegally. It is undisputed that she did that in violation of the Petitioner's custody rights under Mexican law. The Respondent was subject to arrest, detention and deportation at any time. There was no evidence in the hearing or in the report of the guardian ad litem that returning the child to the Petitioner and returning her to Mexico would result in any harm to the child. The testimony of spousal abuse was legally insufficient to establish an exception to the mandate of the Hague Convention. Under these circumstances, not granting the relief requested would have been an abuse of discretion. This is not a close case.
The Respondent may raise procedural issues on appeal. Certainly, under other circumstances, I would have given the Respondent more notice of the hearing and counsel more time to prepare. Unfortunately, this matter came up in the middle of a lengthy criminal jury trial of a detained defendant. Because of that trial and other matters, it may have been weeks before I could have rescheduled the hearing for a time when all of the parties and the guardian ad litem were available. If the hearing had to be delayed, I could not give the child back to the Respondent because of the substantial risk that she would again take the child and flee, or be arrested on immigration charges. If the Petitioner (a factory worker) was forced by economic necessity to return to Mexico, the child would have to be placed in the custody of the Georgia Department of Family and Children Services which I hope to avoid. Under these difficult circumstances, I think that I had the discretion to deny the request for a continuance in the best interest of the child.
I refused the request for a stay for the same reasons. If I had granted a stay, there is a high probability that the child would have ended up in the custody of the Georgia Department of Family and Children Services. In addition, denying the request for a stay only means that the Respondent has to go back to Mexico to adjudicate her custody rights to the child in the courts of that country. Balancing the hardships to the parties and considering the best interest of the child, it seemed to me that the request for a stay should be denied.
SO ORDERED.