I have accomplished many things in my career. Most of the things I have accomplished only my clients and I are aware of. But people tend to be most interested in the types of accomplishments which have achieved some sort of public recognition - the types of accomplishments which you can "hang on the wall." For this reason, I have provided below my cases which have been published out of the Ninth Circuit Court of Appeals as well as the California Court of Appeal. These achievements should give you good reason to believe that I am a highly competent attorney who will be able to promote your interests in a court of law as far as is legally possible.
Marriage of Fernandez-Abin & Sanchez (2011) 191 CA4th 1015
In 2009, I was hired to represent on appeal a father who was seeking to enforce a Mexican child sharing order in the State of California. That case is entitled Marriage of Fernandez-Abin & Sanchez (2011) 191 CA4th 1015. Foreign court orders can be enforced in the State of California, as well as every other State in the United States, pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act. The trial court in that case refused to enforce the Mexican child sharing order and instead entered its own orders based upon "emergency jurisdiction" which denied my client all in-person contact with his children.
On appeal, I argued that the Mexican order had to be enforced pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act and that the trial court did not have the right to simply enter its own orders by disregarding the Mexican order. The California Court of Appeal agreed and reversed the trial court's decision ordering the trial court to strictly comply with the Uniform Child Custody Jurisdiction and Enforcement Act in enforcing the Mexican order. Marriage of Fernandez-Abin & Sanchez (2011) 191 CA4th 1015.
This case is important because it reconciles the interaction between the Domestic Violence Prevention Act with the Uniform Child Custody Jurisdiction and Enforcement Act. Specifically, prior to Fernandez-Abin v. Sanchez, many lawyers as well as judges believed that the Domestic Violence Prevention Act conferred upon courts jurisdiction to enter "emergency child sharing orders." Fernandez-Abin v. Sanchez disapproves of this position and holds that all orders for child sharing must be made in accordance with the jurisdictional requirements of the Uniform Child Custody Jurisdiction and Enforcement Act. This means that even if a litigant brings an action pursuant to the Domestic Violence Prevention Act, trial courts must determine whether they can exercise "emergency child sharing jurisdiction" in accordance with the Uniform Child Custody Jurisdiction and Enforcement Act.
After the case was ordered to be re-tried at the trial court level, we were able to prove that there was no basis to exercise "emergency child sharing jurisdiction." As a result, the trial court entered orders enforcing the Mexican child sharing order and my client was finally able to reestablish a relationship with his children.
Duarte v. Bardales (9th Cir. 2008) 526 F.3d 563 and Bardales v. Duarte (2010) 181 Cal.App.4th 1262
In the year 2006, I was hired to represent a man who was accused of abducting his children out Mexico and into the United States. The mother in that case filed an action under the Hague Convention on the Civil Aspects of International Child Abduction to have her children returned to Mexico. My client's defense was that his children had been the victims of physical and sexual abuse at the hands of their mother's boyfriend and that their mother knew of the abuse and did not prevent it from happening. (Article 13 of the Hague Convention permits courts to refuse to return children to their nations of origin if it can be shown that they would suffer a grave risk of physical and/or psychological harm.) That case was litigated in federal district court as well as the Ninth Circuit Court of Appeals. The case is entitled Duarte v. Bardales (9th Cir. 2008) 526 F.3d 563.
The mother's Hague application was dismissed because she failed to show up to her own trial and because the trial court said that she had not filed her Hague application within one year of the alleged abduction. (Under Article 12 of the Hague Convention, victims of international child abduction have one year after a child has been abducted to file an application for the return of that child.) Duarte v. Bardales held that if alleged victims of international child abduction are not able to file their applications within one year because they are not able to find their children, then the one year limitation can be extended pursuant to principles of "equitable tolling." After this case was litigated before the Ninth Circuit Court of Appeal, it was ordered re-tried at the federal district level to see whether principles of "equitable tolling" applied in this case. After I requested a trial on the matter, the mother dismissed her own case. Bardales v. Duarte (2010) 181 Cal.App.4th 1262 at 1268. In other words, we won the case at the federal court level.
But after the mother dismissed her case in federal court, she decided to litigate it in California State Court. Because the mother failed to show up to three trials in a row in California court, the matter was dismissed by the trial court and my client was granted sole legal and sole physical custody of his children. The mother then filed an appeal.
On appeal, the mother argued that the trial court could not grant my client legal and physical custody until it decided the Hague matter first. (Article 16 of the Hague Convention requires trial courts to first decide Hague applications before deciding child custody and child visitation.) That case is entitled Bardales v. Duarte (2010) 181 Cal.App.4th 1262. We argued that it was not fair to require the trial court to decide the Hague matter before it decided child custody and child visitation because the mother did not permit the trial court to decide the Hague matter by refusing to show up for her own trials.
The California Court of Appeal ultimately decided the case in our favor which upheld the dismissal of the Hague application. Bardales v. Duarte (2010) 181 Cal.App.4th 1262. In its decision, the California Court of Appeal agreed that litigants cannot require that trial courts first decide Hague applications before they decide child sharing matters if those same litigants fail to show up to their own Hague trials. In addition, the California Court of Appeal granted our request to order the trial court to decide whether the mother should be subject to monetary sanctions for setting numerous trials and then refusing to show up to them. Bardales v. Duarte (2010) 181 Cal.App.4th 1262 at 1273. As far as I am aware, this is the only published appellate court case in the history of American jurisprudence where the alleged victim of international child abduction was potentially subject to monetary sanctions.
Gonzalez v. Gutierrez, (9th Cir. 2002) 311 F. 3d 942 and Abbott v. Abbott, (2010) 130 U.S. 1983.
In the year 2001, I was hired to represent a man whose children were abducted. We filed an application under the Hague Convention. The matter was heard in federal district court where we won the case.
But the matter was appealed to the Ninth Circuit Court of Appeals. The case is entitled Gonzalez v. Gutierrez, (9th Cir. 2002) 311 F. 3d 942.
The Hague Convention is designed to help parents who have "rights of custody" recover their abducted children. The issue on appeal was whether a parent whose child has been abducted and who has "rights of visitation" coupled with a "do not abduct order" (a "ne exeat order") under a foreign judgment had "rights of custody" within the meaning of the Hague Convention. Specifically, my client was afforded "rights of visitation" under a Mexican judgment and the Mexican judgment specifically stated that the mother could not leave the nation of Mexico without a court permission. The mother in that case moved to the United States without court permission and then refused to return to Mexico.
We argued that what the mother did constituted child abduction. The Ninth Circuit Court of Appeals held that because my client had "rights of visitation" under the Mexican judgment - and not "rights of custody" - what the mother did was not international child abduction even though she violated the "do not abduct" order. Therefore, we lost the appeal . . . . .
However, in the year 2010, the United States Supreme Court decided a case just like the one I litigated involving a judgment out of the nation of Chile. That case also addressed the exact same issue. Specifically: whether a parent whose child has been abducted and who has "rights of visitation" coupled with a "do not abduct order" (a "ne exeat order") under a foreign judgment had "rights of custody" within the meaning of the Hague Convention. That case is entitled Abbott v. Abbott (2010) 130 U.S. 1983. In Abbott v. Abbott, the United States Supreme Court cited Gonzalez v. Gutierrez. Abbott v. Abbott (2010) 130 U.S. 1983 at 1989. The Supreme Court rejected that the reasoning behind the decision in Gonzalez v. Gutierrez and held that a victim of international child abduction who has "rights of visitation" coupled with a "do not abduct order" (a "ne exeat order") does have "rights of custody" within the meaning of the Hague Convention and can invoke the Hague Convention to recover an abducted child.
As a result, the holding in Gonzalez v. Gutierrez was abrogated, and the arguments I made on appeal before the Ninth Circuit were vindicated by the United States Supreme Court!
