PARENS PATRIAE OR THE COACH AND HORSES REVISTED by William M. Hilton, CFLS Attorney At Law Box 269 Santa Clara, California 95052-0269 TEL: (408) 246-8511 FAX: (408) 246-0114 Home Page: http://www.hiltonhouse.com E-Mail: hilton34@hitltonhouse.com Parens Patriae [1 ] or The Coach and Horses Revisited INTRODUCTION In the United Kingdom case of Evans and Evans [1988] [2 ], Lord Justice Balcombe, in commenting on and rejecting an Article 13(b) [3 ] defense under The Convention on the Civil Aspects of International Child Abduction, done at the Hague on 25 Oct 1980 [The Convention], stated that if the " . . . submissions ably made on behalf of his client were to be accepted, I believe that it could drive a coach and horses through the provisions of this Convention . . ." While the coach and horses may have been banned from the freeways and motorways of those countries that are contracting states to The Convention, [4 ] they still travel many thousands of leagues [5 ] on the roads and byways of those states that are not subscribers to The Convention. Whether one likes it or not the doctrine of Parens Patriae is the most prevalent form of child custody jurisdiction that exists world wide today. Its operation is simple: If the child is present in the forum, then the forum court has jurisdiction to make any orders that it feels are in the best interests of the child. How the child got to the forum is usually not relevant. The fact that there is an existing order for the custody of the child from Forum A is only relevant to the extent that it may be given "grave consideration" in the courts of Forum B where the child has been removed by a parent from Forum A to Forum B even in direct contravention of the law of Forum A. A classic, but by no means the only, application of this doctrine can be found in McKee v McKee [1951] AC 352, [1951] All ER 942, PC. In McKee custody was initially awarded to the father by the Superior Court of California, County of Los Angeles. After several years there was a modification hearing in California that resulted in custody being awarded to the mother. The father appealed and during the appeal time the child stayed with the father since the appeal stayed the order granting custody to the mother. [6 ] Eventually the California Court of Appeal affirmed the trial court's order but before the mother could enforce the order the father took the child to Ontario Province, Canada where a series of legal proceedings were held, ultimately ending up before the United Kingdom House of Lords. The McKee Court, at page 945, had this to say: "From this brief recital of the facts it is clear that it was the duty of Wells, J., to determine the issue before him by reference to the familiar principles which are applicable in regard to the custody of infants and in Ontario are embodied in the Infants Act, R.S.O., 1937, c. 215. It was not, and could not be, argued before their Lordships' Board that the courts of Ontario had not jurisdiction to decide this issue. The infant was resident, if not domiciled, in the province. He was within the King's allegiance and entitled to the protection owed by the King as parens patriae to infants. Further, it was not, and could not be, disputed that the question of custody of an infant is a matter which peculiarly lies within the discretion of the learned judge who hears the case and has the opportunity generally denied to an appellate tribunal of seeing the parties and investigating the infant's circumstances, and that his decision should not be disturbed unless he clearly acted on some wrong principle or disregarded material evidence." The decision also held that while "great weight" must be given to the foreign order, it cannot be enforced absent a hearing to determine if this would be in the in the best interests of the child. The law of all other countries appears to be the same: While an order from Forum A for the custody of a child may be considered by the courts of Forum B, the courts of Forum B will conduct an independent hearing on the best interests of the child according to the law of Forum B. [7 ] Accordingly it can be seen that the best one can do is have the order from Forum A given some weight. A purpose of this article is how to add some ballast to that order so that it will be given as much weight as is possible under the circumstances. Several factors will be considered any or all of which may be used, and conversely none of which may be successful. MIRROR ORDERS: WITH INTER COURT COMMUNICATION The theory is that given the same set of facts all judges of all courts of all countries will come up with the same ruling. Not withstanding this official pronouncement, members of the bar of any country are familiar with a technique known as "judge shopping": A certain judge has a reputation of ruling in a certain manner given a specific set of issues. One either wants to have the judge hear the matter or will do anything short of high treason to avoid that judge. Judge Shopping meets with varying degrees of success but is universally tried. Judge shopping usually involves judges of the same court, where the differences in the way the various judges rule is wide enough to merit such an exercise despite the official line that all judges will rule the same way on the same set of facts. It is also to be noted that the bench is composed of members of the bar who bring with them their experiences and concerns. With this in mind one should consider the effect of having a judge in a different court in the same judicial system ruling on the same set of facts, e.g., Los Angeles County, CA and Amador County, CA. Does the term "Home Town" mean anything to you? Go even further: A decision is obtained in Los Angeles County, CA after a hearing of several days. It now seems that the parent and child are going to move to: South Africa, Italy, Egypt, etc. Do we really believe that the courts in those places will rule the same way on the same set of facts? We should but we in fact do not. One of the concerns is that the judge in Forum B has nothing before the bench that would permit the judge in Forum B to know what actually happened in Forum A: Was the ability of the father to provide support really considered/not considered? Did the court observe the unwritten rule that the grandparents should be given contact with the children, etc? The request to enforce an order from Forum A in Forum B will always create a level of anxiety in the heart of the court in Forum B. One way to greatly lessen this anxiety and concern of the court in Forum B is for the judges in Forum A and Forum B to communicate with one another prior to entry of the final order in Forum A. Let us take the following facts: The parents and the child live in Forum A. Parent A will remain in Forum A, Parent B will return to Forum B. The child is male, 10 years of age and holds dual citizenship. Both parents are equally fine parents and the evaluation shows that either one of them could parent the child in a superlative manner and therefore no recommendation as to which parent the child should be with is made. While not rich, money is not an issue. Parent A, after considering the matter, is willing for their son to live with Parent B in Forum B, provided that Parent A's access rights are guaranteed in exchange for Parent A giving up rights to have their son remain in the close geographical area. [8 ]. Parent A's question is how can it be assured that the order obtained in Forum A will be followed in Forum B? If the Forum A order were taken to Forum B and, under Forum B Law, made an order of Forum B, it clearly would be enforceable in the Forum B. The Forum B order would be a "Mirror Order" of the Forum A order. This "domesticating" of the Forum A order, however, does not prevent Parent B from moving the court in Forum B to vary the access terms of the Forum A order. Presumably this can be done the day that Parent B returns to the Forum B with their son. A way to limit this [9 ] is for the Forum A judge to contact his or her counter part in Forum B prior to the making of any order in Forum A. The Forum A judge could then discuss the case with the Forum B judge, informing him or her of the particular facts of the case. Once the factual situation has been established [10 ] then the two judges can discuss what each of them would do under that fact pattern. The Forum B Court may, for example, have certain concerns about Parent A's living situation that would regularly be addressed in any matter before his or her court but would not normally be a concern of the Forum A court. The Forum B court could also advise the Forum A court of particular language that should be in the order that would make it more compatible with similar orders issued by the Forum B court. A final version of the order could then be submitted as a consent order to the judges of both courts for approval and identical orders, with the approval of the judges of Forum A and Forum B, could be entered in both courts at the same time. [11 ] If Parent B were reluctant to enter such a consent order in Forum B, the the Court in Forum A would withhold its permission to remove the child until such an order was entered in Forum B. If an action to vary the order were then brought by Parent B in Forum B, the Forum B court would not be staring off de novo but would be looking at a variance of an order that the Forum B court had a part in formulating. This would limit efforts to vary the order and in fact may result in the Forum B court ordering that the action to vary be brought in Forum A if the judges of both courts had agreed to this and had made it a part of the Forum A/Forum B order. The courts in the United States have the specific authority to interact with the courts of other countries pursuant to the Uniform Child Custody Jurisdiction Act (UCCJA), set out in 9 Uniform Laws Annotated (ULA) Sections 18, 19, 20 and 23. (West Publishing Co. 1988). [12 ] MIRROR ORDERS: WITHOUT INTER COURT COMMUNICATION In some cases intercourt communication may not occur for a variety of reasons. The logic behind a Mirror Order, however, remains. In this case one contacts an attorney in the country of choice [13 ] to ascertain the local procedure and requirements for a custody and access order: What specific findings should be made, what is considered reasonable in Forum B as to access, whether or not jurisdiction can be agreed upon, etc. These requirements are put into the order from Forum A and then taken to Forum B where they are made a local order. It is to be understood that until the Mirror Order is entered the child does not leave Forum A. Enforcement language that is acceptable to Forum B should be a primary concern. Some jurisdictions will grant the order then do little or nothing by way of enforcement, e.g., the order is not self executing. This aspect should be thoroughly and fully set forth in the Mirror Order. BONDS The child is now in Forum B with one of the parents. Matters have gone along relatively smoothly for a number of years but one day the U.S. Marshal hands the non custodial parent a sheaf of documents that state an action is being brought in Forum B to vary the order that had been so carefully drafted to forestall just this sort of thing. It is true that the Mirror Order does state that the custodial parent would have to pay all of the costs and fees for the non custodial parent but this is of little consequence since a money order for attorney fees and costs was not served with the papers from Forum B. One would then think that as part of the original package in Forum A a bond would be required. The question is how much should the bond be? One needs to consider all of the expenses involved in litigating in Forum B: Travel to and from, hotel and meals, transportation in Forum B, legal fees in Forum B, costs of translating documents, cost of having a translator at court, FAX and Telephone tolls, reproduction, etc. A typical itemization for a bond is set out in Exhibit A to this article. Despite the $42,708.87 amount shown, this is in fact a very conservative figure. In one case involving Yugoslavia the amount spent was in excess of $125,000.00 [ 14] It should be stressed that in making a request to the court for a bond that each item be shown and justified as best as one can in these cases. Another factor to present the court is the likelihood of the bond being needed. How one demonstrates this is left as an exercise to the reader. [ 15] LOCAL ORDERS In the case where a child is taken from Forum A to Forum B and there has been no prior legal action concerning the child, the normal response is for Parent A to go into the court in Forum A and obtain (usually ex parte) orders that grant Parent A sole legal and sole physical custody of the child. Parent A may also request that a felony warrant be issued against Parent B. [16 ] In some cases this may be the appropriate thing to do, particularly if the child is taken to another state in the United States. If Forum B is a foreign country where the custody order of Forum A will not be enforced (and this is usually the case), then one should consider the following: If Parent B is advised that he or she should return the child to Forum A so that sole custody of child can be given to Parent A and so that the authorities of Forum A can jail Parent B on felony charges, then the probability of the child being returned becomes vanishingly small. In these type of situations it may be better to obtain a document that the writer calls a "Request for Assistance" (RFA). [17 ] In the RFA one can set out the material facts of the case, make specific findings and legal rulings and specifically ask the courts of Forum B for assistance. This would be similar to Letters Rogatory where the courts of Forum A ask the courts of Forum B to serve process, to obtain evidence, etc. This is an extension of the principle of comity to custody areas with a specific request for help. If one can persuade the courts of Forum B to order the return of the child to Forum A where Forum A can then hold hearings on the best interest issue, then the need for restrictive orders and criminal warrants is reduced. Since this is more likely to produce the result desired, that is the return of the child to Forum A, it should be considered as a first step. [18 ] CONCLUSIONS When a child is abducted to a forum that is a contracting state under The Convention, we have available various coercive means to cause the return of the child to its "Habitual Residence. This is not true when a child is abducted to a forum that is not a contracting state and accordingly we must rely on the cooperation and goodwill of the courts in the forum where the child has been found. This cooperation and goodwill can best be achieved by the entering of a order in Forum A that is in concert with the law of Forum B and in particular by involving the courts of Forum B in the process before the order is entered in Forum A. Mirror orders should be obtained in these cases, with or without a bond. Where there are no prior orders or the prior orders may be repugnant to the courts of Forum B, a Request For Assistance should be considered. =========================================================== ESTIMATED EXPENSES FOR LITIGATION OF CUSTODY IN FORUM B Air Fare [19] Three Round Trips from Forum A: $3,957.00 Car Rental[20] Three two week periods $2,881.56 Fuel [21] $240.00 Hotel [22] Three two week periods $2,520.00 Meals [23] Three two week period $1,890.00 Translator Service [24] 100 Pages, 300 words per page $9,000.00 Telephone Toll [25] FAX and Voice $1,701.00 Reproduction [26] $500.00 Certification of Court Documents [27] $150.00 Attorney Fees Forum A [28] $1,500.00 Forum B [29] $11,250.00 Miscellaneous and unknown: [30] $7,119.31 Total: $42,708.87 -------------------- 1. Literally "parent of the country," refers traditionally to the role of state as sovereign and guardian of persons under legal disability. Parens patriae originates form the English common law where the King had a royal prerogative to act as a guardian to persons with legal disabilities such as infants, idiots and lunatics. In the United States, the parens patriae function belongs with the states. 2. THE SUPREME COURT OF JUDICATURE, No of Matter AD 1716 of 1988, COURT OF APPEAL (CIVIL DIVISION) 3. Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -- * * * there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. 4. It may also be that the banning has occurred for environmental reasons due to lack of emission control on the part of the horse. 5. League (l) n. Abbr. lea. 1.a. A unit of distance equal to 3.0 statute miles (4.8 kilometers). b. Any of various other units of about the same length. 2. A square league. [Middle English lege, from Old French liue, leguee, from Latin leuga, a measure of distance, of Celtic origin.] 6. This is no longer the case. See California Civil Code 917.7 wherein the mere perfecting of an appeal shall not cause a stay of the order for custody absent a specific stay order of the trial court or court of appeal. 7. On one occasion, when the author was giving a presentation outside of the United States, a local practitioner was asked if he felt this would be local policy. He advised that it was and, upon further inquiry, added that of course local standards of best interest would be used rather than the standards of Forum A. 8. See In re Marriage of Burgess (Cal. 1996) 13 Cal.4th 25. 9. It can never be completely stopped. 10. It may be that at this point a precis of the case should be sent by FAX to the Forum B judge. 11. It may also be wise for the judge in Forum B to enter a memorandum to the Forum B court file as to how this order came about. 12. The full text of the UCCJA can be found in a file called "UCCJA.TXT". 13. The United States Department of State will provide a list of attorneys in a particular geographic area with the understanding that the list does not imply "approval" by the U.S. Dept. of State. 14. In fact the abducting parent's money was used since we were able to locate a bank account in Canada with substantial funds. An action was filed in the Canadian court based on the orders of the California court which resulted in the funds being disbursed. 15. This is a nice way of saying that the author does not know how to do this either. 16. This can be under local State law or under a recently enacted federal statute 18 U.S.C. 1204. 17. A sample can be found in file "Request_assistance.txt". 18. The language of 18 U.S.C. 1204 in fact encourages this step at (d): "This section does not detract from The Hague Convention on the Civil Aspects of International Parental Child Abduction, done at the Hague on October 25, 1980." 19. From Official Airline Guides, based on advanced reservations, Forum A to Forum B. 20. From Hertz International: Mid sized car, manual, e.g., Toyota Tercel, $407.00 per week + 18% tax, no fuel. 21. Estimated at 20 gallons per week, $2.00 per gallon. 22. From Travel Agents International: $60.00 to $150.00 per night. 23. Estiamte of 3 meals per day at $15.00 per meal. 24. IDEM Translations $30/100 words (average) 25. Estimated at 21 hours, at $81.00 per hour. 26. Estimated 2000 pages at $0.25 per page. 27. Estimated 28. Liason, estimate 10 hours per week at $150.00 hour 29. Estimated, from calls to Forum B: $150 per hour, 75 hours. 30. This is 20% of the total, to take into account items that may not be listed but will surely occur. Note that amount quoted are at the low end of the scale.