| In Broda v Abarca, 2011 WL 900983
(D.Colo.) petitioner, Guillermo Luis Torres Broda, and the respondent,
Fania Jazmin Ceja Abarca, were married in 2001 the Republic of
Argentina. The petitioner ws a citizen of the Republic of Argentina. The
respondent was a citizen of Mexico. The petitioner and the respondent
were the parents of the child , Guillermina Frania Torres Ceja (the
child). The child was born in Argentina on May 25, 2004. After the birth
of the child, the petitioner, the respondent, and the child resided
together in Argentina until August 2, 2007. On July 20, 2007, the
petitioner executed a document authorizing the child to travel,
accompanied by the respondent, anywhere in the world and having the
right to return to Argentina and travel abroad any time the respondent
considered it to be convenient. On August 2, 2007, the respondent and
the child traveled from Argentina to Mexico. They were scheduled to
return to Argentina on or about September 16, 2007, but they did not
return. On August 17, 2007, the respondent advised the petitioner that
she did not plan to return to Argentina with the child, but instead,
planned to remain in Mexico with the child.
On October 3, 2007, the petitioner filed a
request with the Argentine Ministry of Foreign Affairs Legal Issues
Direction seeking relief under the Hague Convention. The petitioner's
request was directed properly to corresponding officials in Mexico. On
June 18, 2009, a court in Mexico conducted a hearing on the petitioner's
petition for relief under the Hague Convention. That court was the First
Instance Court of the City of Guaymas, State of Sonora (court of first
instance). Both the petitioner and the respondent were present for the
hearing, were represented by counsel at the hearing on June 18, 2009,
and neither party expressed any reservation or complaint about the
quality or competence of their legal representation at this proceeding.
Both the petitioner and the respondent presented testimony and other
evidence. On July 7, 2009, the court of first instance issued a written
order denying the petitioner's request for relief under the Hague
Convention. The District Court pointed out that the court of first
instance noted correctly in its order that under Article 3 of the Hague
Convention, the removal or retention of a child is wrongful if the
applicant shows that he has custody rights to the minor child given by
the child's state of habitual residence, and that the petitioner was
exercising those rights before the removal of the child from her state
of habitual residence. The court of first instance found that the
petitioner "was exercising factual custody" before the respondent and
the child left Argentina. The court of first instance found that the
petitioner "consented that the minor be transferred until the mother
believes it best to return to her country of origin." This finding was
based on the terms of the travel authorization executed by the
petitioner on July 20, 2007. Citing Article 13 of the Hague Convention,
the court of first instance noted that a return of the child under the
Hague Convention is not required if it has been shown that the parent
requesting return of the child gave "prior consent for the retention or
trip." The court found that "the first requirement of the Hague
Convention under Article 3, was not effectuated, that is, that the
custody right in relation to the applicant was not broken, since he
consented that the minor travel with the mother." Ultimately, the court
of first instance concluded that is "is not allowing the return of the
minor child under the Hague Convention in virtue of Article 13 of the
convention which states that: 'it is not required to return the minor if
there was prior consent for the retention or trip.' " "In this case, the
applicant consented that the minor be transferred until the mother
believes it best to return to her country of origin." On September 24,
2007, the petitioner executed a document while in Argentina revoking his
travel authorization of July 20, 2007. The respondent was not notified
of the September 24, 2007, revocation document when it was executed. The
record did not demonstrate when precisely the respondent became aware of
the revocation document. The court of first instance took note of the
petitioner's contention that he had revoked the travel authorization,
but noted that the respondent was not notified of the revocation for
some time after it was executed. The petitioner filed an appeal
challenging the July 7, 2009, order of the court of first instance. The
Supreme Tribunal of Justice of the State of Sonora resolved the appeal
in an opinion issued on March 4, 2011 upholding the ruling of the First
Instance Court of the City of Guaymas, State of Sonora.
The District Court observed that in the United
States, the doctrine of comity is applicable to rulings on Hague
petitions by courts in other countries. (Citing Asvesta, 580 F.3d at
1004; Diorinou v. Mezitis, 237 F.3d 133 (2nd Cir.2001). "The extent to
which the United States, or any state, honors the judicial decrees of
foreign nations is a matter of choice, governed by 'the comity of
nations.' " (citing Wilson v. Marchington, 127 F.3d 805, 808 (9th
Cir.1997) (quoting Hilton v. Guyot, 159 U.S. 113, 163, 16 S.Ct. 139, 40
L.Ed. 95 (1895)). It noted that Hilton v. Guyot provides the guiding
principles of comity:
"[W]here there has been opportunity for a full
and fair trial abroad before a court of competent jurisdiction,
conducting the trial upon regular proceedings, after due citation or
voluntary appearance of the defendant, and under a system of
jurisprudence likely to secure an impartial administration of justice
between the citizens of its own country and those of other
countries, and there is nothing to show either prejudice in the court,
or in the system of laws under which it was sitting, or fraud in
procuring the judgment, or any other special reason why the comity of
this nation should not allow it full effect, the merits of the case
should not, in an action brought in this country upon the judgment, be
tried afresh, as on a new trial or an appeal, upon the mere assertion of
the party that the judgment was erroneous in law or in fact. "
The District Court noted that when comity is at
issue concerning another country's resolution of a petition under the
Hague Convention, the court properly begins its analysis "with an
inclination to accord deference to" the foreign court's adjudication of
the Hague petition. (Citing Diorinou, 237 F.3d at 145.) However, in
determining whether comity should be applied to a particular judgment of
a foreign court in the context of a Hague petition, it is proper to
examine the merits of the foreign court's ruling to determine if the
foreign court followed the mandates of the Hague Convention when
resolving the petition in question. (Citing Asvesta, 580 F.3d at
1011-1021; Diorinou, 237 F.3d 145-146; Carrascosa v. McGuire, 520 F.3d
249, 260-263 (3rd Cir.1008). If the foreign court deviated significantly
from the mandates of the Hague Convention in resolving a relevant Hague
petition, or deviated significantly from the general requirements
outlined in Hilton v. Guyot, an extension of comity to the foreign
court's order may not be appropriate. The court then examined the
proceedings conducted by First Instance Court of the City of Guaymas,
State of Sonora, when hearing and determining the Hague petition filed
by the petitioner in that court, and determined that it satisfied the
general requirements outlined in Hilton v. Guyot. It determined that
there was no principled reason for the court not to accord comity and
deference to the previous determination of the First Instance Court of
the City of Guaymas, State of Sonora, on the Hague petition presented to
and resolved by that court. Therefore it denied the Petition for Return
of child To Petitioner.
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