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In Klam v. Klam, 797 F. Supp. 202 (E. D. N. Y. 1992) the father was
denied provisional relief in form of a "warrant in lieu of writ of
habeas corpus" seeking the arrest of his children who living with their
mother so proceedings could be held to return them to him in Germany.
His application made only the most conclusory allegations of unlawful
detention and an unexplained belief that children will be carried out of
New York. The statute provides that "notice of an action [under ICARA] .
. . shall be given in accordance with the applicable law governing
notice in interstate child custody proceedings." 42 U.S.C.A.
' 11603(c). Such proceedings
are governed by the Uniform child custody Jurisdiction Act (UCCJA), N.Y.
Dom. Rel. Secs. 75a-z (McKinneys 1988), 9 U.L.A. 123 (1988), and the
Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.A.
' 1738A. Both Section 4 of the
UCCJA and 28 U.S.C.A. '
1738A(e) (the PKPA) mandate that before a determination is made
"reasonable notice and an opportunity to be heard shall be given" to the
parties. See New York Domestic Relations Law
' 75-e. "As to persons in the
forum state, the general law of the state applies." 9 Uniform Laws
Annotated 208, comment. The PKPA notice provisions are substantially
similar to the UCCJA. To satisfy due process, these statutes call for a
plenary hearing at which both sides are heard regarding the best
interests of the child. Petitioner=
s affidavit of service attested that, in commencing the instant action,
service was made by mailing the Attorneys for Respondent. However, the
were not attorneys of record in this proceeding. thy had represented her
in a terminated state court matrimonial proceeding. Neither the Federal
Rules of Civil Procedure nor New York=
s Civil Practice Law and Rules authorize service of process in this
fashion. Nor did any court order precede the petition authorizing such
service. Accordingly, the application, was an ex parte one, since no
effective service had been made. |
