Duarte v. Bardales, 526 F.3d 563 (9th Cir. 2008)

INCADAT legal file Hague parental abduction

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The proceedings related to two children born in October 1996 and June 1998. Two older siblings, not subject of the proceedings, were born in October 1990 and October 1991. The parents, who never married, entered the United States of America from Mexico in 1990. In 2000, they separated and the mother took the four children to live in Mexico. In 2002, the two oldest children went back to live with the father in California.
On 8 July 2003, the mother took the two younger children to Tijuana, Mexico to visit the father. The father then removed the children to California.
In September 2003, the mother filed a Hague petition with the Mexican Central Authority. This was transferred to the United States Central Authority one month later. In December 2003, the petition was turned over to the San Diego District Attorney’s Office and in August 2004 was assigned to a Deputy District Attorney. For reasons unknown, the petition was not filed in the California Superior Court until April 2005.
A hearing was scheduled for 25 April 2005. The mother appeared without counsel and the proceedings were continued. The mother failed to attend two subsequent hearings and the petition was removed and the father awarded sole custody. The mother appealed to the California Court of Appeal. This appeal was stayed when on 23 January 2006 the mother filed a return petition in the United States District Court for the Southern District of California.
The mother did not attend the hearing scheduled by the Federal District Court on 1 September 2006. She had been unable to enter the United States of America after her passport and visa were stolen. The District Court failed to accept the mother’s evidence for her non-appearance and entered final judgment, denying her petition.
On 29 September 2006, the mother filed a motion to alter or amend the judgment of the District Court. The court acknowledged that the basis underlying its original judgment was wrong, but rather than set the judgment aside, it proceeded to rule on the merits of the Hague petition, ruling that it did not entitle her to any relief: Duarte v. Bardales, 2006 U.S. Dist. LEXIS 79518 (S.D. Cal., Oct. 19, 2006).
The mother appealed the District Court’s order denying her motion to set aside the judgment.