Published Cases
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.
Bardales V. Duarte (2010) 181 Cal.App.4th 1262
In 2006, I was hired to represent a man who was accused of abducting his children out of 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 had two defenses. First, he asserted that his children had been subjected to 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.) Second, he asserted that since the Hague Application was filed more than a year after the alleged abduction, the court should not return the children to Mexico because they had become “well settled” within the United States. (Article 12 of the Hague Convention permits courts to refuse to return children to their nation’s of origin if the request for their return is made more than one year after their alleged abduction and if they have become “well settled” in their nation of refuge.)
Because the mother failed to show up to three trials she set to address the her Hague Application, her case was dismissed and my client was granted sole legal and sole physical custody.
The mother then appealed to the California Court of Appeal. Mother argued that the trial court could not have granted my client custody of his children until after it had decided the pending Hague matter first. (Article 16 of the Hague Convention requires trial courts to first decide Hague applications before deciding child custody and child visitation.) 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 to her own trials.
The California Court of Appeal ultimately decided the case in our favor which upheld the dismissal of the Hague application. 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. 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.
Duarte V. Bardales , (9th Cir. 2008) 526 F.3d 563 and Lozano V. Montoya Alvarez (2014) 134 S.Ct. 1224.
In 2006, I was hired to represent a man who was accused of abducting his children out of 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 had two defenses. First, he asserted that his children had been subjected to 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.) Second, he asserted that since the Hague Application was filed more than a year after the alleged abduction, the court should not return the children to Mexico because they had become “well settled” within the United States. (Article 12 of the Hague Convention permits courts to refuse to return children to their nation’s of origin if the request for their return is made more than one year after their alleged abduction and if they have become “well settled” in their nation of refuge.)
The mother’s case was dismissed pursuant to Article 12 of the Convention because she filed her Hague Application more than one year after the alleged abduction and because the children had become “well settled” in the United States.
The mother appealed the decision to the Ninth Circuit Court of Appeals. Mother argued on appeal that she could not locate her children within the one year time limit she had to file her Hague Application. Consequently, the one year time limit within which to file a Hague Application should have been extended pursuant to principles of “equitable tolling” to permit her to have filed her Hague Application as if it had been filed within the one year time limit. We disagreed asserting that the mother always knew where her children were and the language of the Hague Convention as well as its drafting history clearly show that “equitable tolling” cannot be applied to Article 12 of the Convention.
The Ninth Circuit ruled against us holding that “equitable tolling” does apply to Article 12 of the Convention and sent the case back to the trial court to re-try the case to decide whether the mother knew where her children were. After the case was sent back to the trial court, I immediately asked that the case be re-tried. The mother then immediately dismissed her case. Therefore, we won.
Then, in 2013, the United States Supreme Court agreed to decide a case entitled Lozano v. Montoya Alvarez which involved the issue of whether “equitable tolling” applied to Article 12 of the Convention. Although we ultimately prevailed in Duarte v. Bardales (9th Cir. 2008) 526 F.3d 563, it always bothered me that the Ninth Circuit decided that “equitable tolling” should apply to Article 12 of the Convention. Therefore, I decided to file an amicus brief in the Supreme Court once again arguing that “equitable tolling” should not apply to Article 12 of the Convention. I filed my brief on behalf of the Mexican Association for Abducted and Missing Children, S.A. (La asociación mexicana de niños robados y desaprecidos, S.A.).
In the United States Supreme Court, I argued that “equitable tolling” should not apply to Article 12 of the Convention. But I clarified that courts may still return children to their nations of origin even after one year has passed since their alleged abduction pursuant to Article 18 of the Convention.
The United States Supreme Court decided that “equitable tolling” does not apply to Article 12 of the Convention. Although it did not decide whether Article 18 permits courts to return children to their nations of origin after one year has elapsed, in a concurring opinion written by three of the Justices, the concurring Justices stated that they agreed that “equitable tolling” could not be applied to Article 12 because courts have the discretion to return children to their nations of origin pursuant to Article 18.
As a result, the holding in Duarte v. Bardales was abrogated, and the arguments I made on appeal before the Ninth Circuit were vindicated by the United States Supreme Court!
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!
