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| Brooke v Willis, 907 F. Supp. 57 (S.D. N. Y.
1995)
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In Brooke v Willis, 907 F. Supp. 57 (SDNY. 1995) Petitioner John Brooke
filed a Complaint and Petition seeking to compel Respondent to appear in
court with their daughter Demelza to show cause for the alleged wrongful
retention of the child in the United States, and then sought a court
decision ordering the immediate return of Demelza to England. Petitioner
was born in England and was a British citizen. Respondent was born in
China but was a naturalized citizen of the United States. The parties
were married in Wheaton, Illinois and Willis later gave birth to Demelza
on May 22, 1984. In 1987, the parties were formally divorced. The
parties were residing in California at the time of their divorce. The
Court conducted an ex parte telephone conference with Petitioner.
Petitioner's attempts to serve and contact the Respondent were
unsuccessful. However, these efforts were sufficient to satisfy due
process notice requirements. The court noted that pursuant to due
process requirements, United States courts dealing with petitions under
the Convention to immediately return children to their alleged places of
habitual residence have usually required a hearing to allow both parents
to present arguments before deciding whether the child should be
returned for further custody proceedings on the merits. See, e.g., In re
Prevot, 855 F.Supp. 915 (W.D.Tenn.1994); Currier v. Currier, 845 F.Supp.
916 (D.N.H.1994). In order to initiate such a preliminary hearing,
Petitioner requested a writ of habeas corpus ordering Respondent to
produce the child in court and show cause why the child has been removed
and retained away from Petitioner. Petitioner also requested a warrant
in lieu of the writ of habeas corpus. In light of the fact that
Respondent had purposely evaded Petitioner for almost five years and had
fled the jurisdiction of two state courts in the past when she was
ordered to appear, it was doubtful that Respondent would voluntarily
comply with an order to bring Demelza into court. For this reason, the
Court issued a writ of habeas corpus and allowed Respondent fourteen
days to comply with the order; "however, if Respondent has not complied
after fourteen days, the Court will then issue a warrant in lieu of the
writ of habeas corpus, which will allow any United States peace officer
to bring Demelza into court without the consent of Respondent. The Court
will also order the child's name to be entered into the national police
computer system (N.C.I.C.) missing persons section in order to aid in
identifying her whereabouts. Petitioner satisfied both the threshold
requirements for a petition under the Hague Convention and the
applicable notice provisions. |
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