Filed 1/14/16 Bounouar v. Fa’Alofa CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JOHAN BOUNOUAR, D066948
Plaintiff and Respondent,
v. (Super. Ct. No. D550998)
ARY'EANNA FA'ALOFA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, David B.
Oberholtzer, Judge. Affirmed.
Ary'Eanna Fa'Alofa, in pro. per., for Defendant and Appellant.
Law Offices of Martin N. Buchanan and Martin N. Buchanan for Plaintiff and
Respondent.
This case involves the Hague Convention on the Civil Aspects of International
Child Abduction, October 25, 1980, T.I.A.S. No. 11670 (Hague Convention). Under the
Hague Convention, when a child under the age of 16 who was habitually residing in one signatory state is wrongfully removed to another, the latter state shall "'order the return of
the child forthwith.'" (Abbott v. Abbott (2010) 560 U.S. 1, 9 (Abbott).)
Here, violating both a French court's ne exeat (no exit) order and Johan
Bounouar's custody rights under French law, Ary'Eanna Fa'Alofa took their five-year old
son, Bilal, from his habitual residence in France to the United States. After conducting a
hearing where Bounouar and Fa'Alofa testified, the court characterized this case as a
"classic example of what the Hague Convention is designed to prevent" and ordered Bilal
returned to France.
Self-represented, Fa'Alofa appeals, contending the order should be reversed
because the court (1) did not provide her (a native English speaker) with a French
interpreter; (2) withheld evidence of a December 2013 French court order giving
Bounouar sole custody; (3) erroneously determined the parties' shared intent was to
reside in France; (4) erroneously refused to consider the effects of a December 2013
"chasing order"; (5) denied her due process by conducting the hearing on inadequate
notice and by denying her access to a lawyer; (6) allowed the district attorney to represent
Bounouar; (7) ignored evidence of domestic violence; (8) failed to question Bounouar
and relied on his false testimony; (9) erroneously determined Bounouar's custody rights;
(10) neglected its "fiduciary duty" by not requiring Bounouar's personal appearance at a
hearing on Fa'Alofa's motion for reconsideration; (11) erroneously determined the French
court's ne exeat order afforded Bounouar custody rights; and (12) abused its discretion in
ordering her to surrender Bilal's passport.
2 We affirm because many of Fa'Alofa's appellate arguments were forfeited by not
being asserted in the trial court, and those that were asserted below lack merit.
FACTUAL AND PROCEDURAL BACKGROUND
A. Bounouar, Fa'Alofa, and Bilal—In San Diego
Bounouar is a French citizen. He met Fa'Alofa while attending college in San
Diego in 2008. After Fa'Alofa became pregnant with Bounouar's child, they were
married in San Diego in 2009. Their son, Bilal, was born in San Diego in November
2009. Fa'Alofa also has a daughter, Kekoa, from a prior relationship.
B. Bounouar Returns to France
Twelve days after Bilal was born, Bounouar returned to France to find
employment and housing for the family because his visa had been cancelled.1 There,
Bounouar enlisted in the French armed forces.
C. Fa'Alofa and the Children Move to France
In April 2011 when Bilal was 16 months old, Fa'Alofa moved to France with the
children to live with Bounouar. Bounouar testified, "I love her at the time. I love her and
I wanted her to come with the kids to make a family, to be a family." Fa'Alofa similarly
testified she moved with Bilal and Kekoa to France for an indefinite time, stating:
"Q: Why did you go to France in the first place with Kekoa and Bilal?
"A: Because I wanted to be with Johan.
1 Fa'Alofa gave conflicting testimony, stating that Bounouar left for France because of marital discord.
3 "Q: To be a family?
"A: Yeah."
Bounouar enlisted in the French armed forces for three years and planned to
reenlist for two more. Fa'Alofa was "fine" with this arrangement and they lived together
as a family in France for over two years. They enrolled Bilal in school for the 2013-2014
academic year.
D. Marital Problems
Fa'Alofa and Bounouar's marriage was marked with disagreements and
difficulties. In August 2013 Fa'Alofa made a domestic violence report to French police.
This concerned an incident where, according to Fa'Alofa, Bounouar barricaded her inside
a room, grabbed her, and threw her to the ground. However, the prosecutor declined to
file charges, finding the evidence insufficient. After this incident, the couple separated.
E. French Court Issues Joint Custody and Ne Exeat Order
In September 2013 Bounouar became concerned Fa'Alofa intended to take Bilal to
the United States. Bounouar initiated proceedings in a French family law court, which
conducted a hearing on the matter. Bounouar and Fa'Alofa testified.
Fa'Alofa told the court she had "no plan to leave France with her child" who had
"recently entered in the kindergarten." Nevertheless, the French court issued a ne exeat
order, directing that Bilal not be removed from France without permission of both
parents. The court also found that under French law, Bounouar and Fa'Alofa "have joint
parental authority over the child." Fa'Alofa did not appeal from this order.
4 F. Fa'Alofa Abducts Bilal and Takes Him to San Diego
After the September 2013 hearing, the parties had a physical altercation in a public
park. Bounouar reported the incident to police. Bounouar and Fa'Alofa continued living
apart, with Bilal living with each of them one week at a time.
In November 2013 Fa'Alofa left France with Bilal, taking him to San Diego
without Bounouar's knowledge or permission. Fa'Alofa was also pregnant again, but she
did not know whether Bounouar was the father.
Fa'Alofa admits she knowingly violated the French court's ne exeat order by
taking Bilal from France:
"The Court: [T]he order was that you were not to remove Bilal from French territory without the consent of both parents. Did you understand you were violating that court order when you left?"
"Fa'Alofa: Yeah."
G. Hague Convention Hearing
Within two weeks after Fa'Alofa took Bilal from France, Bounouar submitted a
Hague Convention application seeking Bilal's return to France. Ten months later, on
September 10, 2014, the San Diego County District Attorney's Office filed a "Petition for
the Return of the Child Under the Hague Convention . . . ." Two days later, the court
conducted a hearing, where both Bounouar and Fa'Alofa were self-represented and
testified. The court also received documentary evidence.
Before hearing any testimony, the court addressed Fa'Alofa, stating, "I don't have
your side of the story. All I've got is what was put into the record by the father in France
and was transmitted to us. So I want to make sure that you get an opportunity to tell me
5 your side of the story, as well. We will start with a[n] outline of the facts from the
district attorney, and then I will—I'll be asking questions, perhaps of her, perhaps of the
investigators, and then of course of you. Okay, is there anything you don't understand
about what's—what we're doing here?" Fa'Alofa had no questions, and did not ask for a
continuance or additional time to consult a lawyer.
After the district attorney summarized the evidence, Fa'Alofa and Bounouar both
testified in narrative form, with the court at times asking each questions. Then, the
deputy district attorney asked Fa'Alofa questions to determine whether a wrongful taking
occurred under the Hague Convention.
The deputy district attorney asked Fa'Alofa questions about the parties' shared
intent to reside in France:
"Q: Why did you go to France in the first place with Kekoa and Bilal?
"A: Because I wanted to be with Johan [Bounouar].
"Q: To be a family?
"A: Yeah.
"Q: And how long were you planning to live there?
"A: We hadn't really planned much of anything. It just kind of is touch and go.
"Q: So it wasn't a: We'll try this for a certain period of time and see and then I'll move back if I don't like it? It wasn't like that?
"A: No. He signed his contract for the military for three years and planned to sign up for two more for the five. So it wasn't planned. It was just this is what we're doing and this is what I have and this is the best way to support the family and so that was—that was that.
6 "Q: And you were—you were fine with that at the time when you went there?
"A: Yeah. I stayed there for almost four years."
Next, the deputy district attorney asked Fa'Alofa whether she was concerned about
Bilal's safety if he was returned to France to live with Bounouar:
"Q: [D]o you have any concerns for Bilal's safety were he to be living in France with Mr. Bounouar?
"A: My only concern is the fact that he is not an only child. Him and his sister are almost inseparable, the two of them."2
At the conclusion of the hearing, the court found France was the country of Bilal's
habitual residence because Bilal was in France "as part of a family unit. He was
attending school. There was no present intent to leave. He was essentially a resident of
France." The court also found France was Bilal's habitual residence because Bounouar
and Fa'Alofa intended to make France their home.
The court found the French court "unquestionably had jurisdiction to determine
custody," its order was "not one-sided" but rather "reasonable" and gave "both parents
equal [custody] rights." The court found Bounouar was exercising his custody rights
2 For the first time in her reply brief, Fa'Alofa contends she was "caught off guard" by this question and she is "now formally expressing these concerns" about Bilal's safety. However, even in her motion for reconsideration, filed by counsel, Fa'Alofa made no such assertions. Fa'Alofa's attempt to reopen the evidentiary hearing now and contradict her testimony, for the first time in a reply brief, is improper and we do not consider such assertions. (Knapp v. City of Newport Beach (1960) 186 Cal.App.2d 669, 679 [statements of alleged fact in the briefs on appeal that are not contained in the record will be disregarded by the court of appeal].)
7 when Fa'Alofa removed Bilal from France and that Fa'Alofa's removal of Bilal from
France was wrongful under both the ne exeat order and Bounouar's custody rights under
French law.
The court also found "there's no issue here that the mother or the child is unsafe in
France or that the French courts are not competent to make this determination. So if the
events that she described are true and if they should be taken into consideration with
respect to the custody of Bilal, that decision has to be made by the French family court,
not this one." The court ordered "that the child be repatriated and returned to France with
the father."
The deputy district attorney told the court, "Mr. Bounouar is prepared to take Bilal
back to France with him when he leaves." The court issued an order directing that Bilal
"shall be returned to France with [Bounouar] forthwith, pursuant to Article 12 of the
Hague Convention."
After the hearing, Fa'Alofa hired an attorney, who filed a request for
reconsideration and modification of return order. After conducting a hearing, the court
modified the order to give Fa'Alofa weekly Skype contact with Bilal. This appeal
followed.
DISCUSSION
I. THE HAGUE CONVENTION GENERALLY
"The Hague Convention seeks to deter parents from abducting their children
across national borders by limiting the main incentive for international abduction—the
forum shopping of custody disputes." (Cuellar v. Joyce (9th Cir. 2010) 596 F.3d 505,
8 508.) "A court that receives a petition under the Hague Convention may not resolve the
question of who, as between the parents, is best suited to have custody of the child.
[Citation]. With a few narrow exceptions, the court must return the abducted child to its
country of habitual residence so that the courts of that country can determine custody."
(Ibid.) "The principal aims of the [Hague] Convention are to 'prevent an international
version of forum-shopping,' 'defeat attempts to re-litigate custody matters, [citation],' and
'facilitate custody adjudications, promptly and exclusively' in the child's country of
residence." (West v. Dobrev (10th Cir. 2013) 735 F.3d 921, 929, italics omitted.)
Thus, a Hague Convention case is more akin to a provisional remedy—to
determine if the child was wrongfully removed from his or her habitual residence, and if
so, then to order the child to be returned to that nation. The merits of the child custody
case—what a parent's custody and visitation rights should be—are questions reserved for
the courts of the habitual residence. "Thus the issue of which placement is better for the
child in the long run is irrelevant." (In re Marriage of Forrest & Eaddy (2006) 144
Cal.App.4th 1202, 1210 (Eaddy).)
A parent petitioning for the return of a child must show by a preponderance of
evidence that: (1) a child under the age of 16; (2) has been wrongfully removed or
retained; (3) from his or her habitual residence; (4) in violation of the custody rights of
the left-behind parent. (Garbolino, Federal Judicial Center, International Litigation
Guide (2012) The 1980 Hague Convention on the Civil Aspects of International Child
Abduction: A Guide for Judges, FJC-MISC-2012-9, at p. 6.) If the parent petitioning for
9 return of the child has proved these elements, the court must order return of the child,
unless one of the defenses to return is established.
Under article 3 of the Hague Convention, the removal of a child is wrongful
"where it breaches the petitioner's rights of custody, providing that the petitioner was
exercising those rights" at the time of the removal. (Eaddy, supra, 144 Cal.App.4th at p.
1211.) A ne exeat right granted by a foreign court (i.e., an order requiring both parents to
consent to removing the child) itself confers a "'right[] of custody'" under the Hague
Convention. (Abbott, supra, 560 U.S. at p. 10.)
Removing a child without the other parent's consent is wrongful under the Hague
Convention, even when both parents have equal custodial rights under the law of the
child's habitual residence. From the Hague Convention's standpoint, the wrongfulness
derives from the fact such action has disregarded the rights of the other parent that are
also protected by law. (In re Marriage of Witherspoon (2007) 155 Cal.App.4th 963, 972
(Witherspoon).)
To invoke the Hague Convention, the removal of the child must have occurred
from the place of his or her "habitual residence." (Witherspoon, supra, 155 Cal.App.4th
at p. 971.) "The Convention does not define the term 'habitual residence,' although the
cases interpreting it have concluded that the term refers to the child's customary residence
prior to the wrongful removal or retention." (Eaddy, supra, 144 Cal.App.4th at p. 1213.)
The parents' "last shared intent as to the child's residence is frequently determinative"
where that intent "has been carried out for an appreciable period of time." (Ibid.)
10 A petitioner under the Hague Convention "bears the burden of proving the child's
wrongful removal or retention by a preponderance of the evidence." (Eaddy, supra, 144
Cal.App.4th at p. 1211.) "If the petitioner succeeds in showing a wrongful removal, the
[Hague Convention] requires repatriation of the abducted child to its country of habitual
residence in all but a few exceptional circumstances. [Citations.] Exceptions to the
Hague Convention must be narrowly interpreted 'lest they swallow the rule of return.' "
(Maurizio R. v. L.C. (2011) 201 Cal.App.4th 616, 633 (Maurizio R.).)
One such exception is the "grave risk" exception, which provides that return of a
child to his or her country of habitual residence need not be ordered if "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." (Hague Convention, art. 13, par. b;
22 U.S.C. § 9003(e)(2)(A).) The grave risk exception is narrow and must be proved by
clear and convincing evidence. (22 U.S.C. § 9003(e)(2)(A); Maurizio R., supra, 201
Cal.App.4th at p. 633; Witherspoon, supra, 155 Cal.App.4th at p. 974.)
II. THE STANDARD OF REVIEW
On appeal from an order granting or denying a Hague Convention petition, "we
review the trial court's determination of the historical facts for substantial evidence but
conduct a de novo review of the questions of law." (Eaddy, supra, 144 Cal.App.4th at p.
1213.) We review independently a trial court's interpretation of the Hague Convention
and its application of the Hague Convention to the facts in a particular case. (Maurizio
R., supra, 201 Cal.App.4th at pp. 633-634.)
11 III. FA'ALOFA HAS NOT DEMONSTRATED ANY REVERSIBLE ERROR
A. No Interpreter
Fa'Alofa complains there was no French interpreter at the hearing. However,
Fa'Alofa speaks English and the hearing was conducted in English. Although some of
the documentary evidence is written in French, in the trial court Fa'Alofa never requested
an interpreter and never asked that any French documents be translated into English. As
a result, she has forfeited any claim of error on this ground. "Contentions or theories
raised for the first time on appeal are not entitled to consideration." (City of San Diego v.
D.R. Horton San Diego Holding Co., Inc. (2005) 126 Cal.App.4th 668, 685.) "It must
appear from the record that the issue argued on appeal was raised in the trial court. If not,
the issue is waived." (Amato v. Mercury Casualty Co. (1993) 18 Cal.App.4th 1784,
1794.)
Moreover, even if Fa'Alofa had not forfeited this issue, her argument is unavailing
because she does not identify any particular French document which, untranslated,
deprived the court of relevant evidence. The record contains many documents translated
from French to English including: (1) Request for the Return of An Abducted Child,
Pursuant to the Hague Convention; (2) Excerpts from the French Civil Code regarding
parental custody rights; and (3) French court order, September 24, 2013, providing for
joint custody and ne exeat. Fa'Alofa's August 2013 police report of alleged domestic
violence is in French and was not translated into English. However, at the hearing,
Fa'Alofa testified about the underlying incident, her report to the police, and the police
response. Thus, any error in not translating the same information contained in the French
12 police report would be harmless because the same information was received through
Fa'Alofa's testimony.
B. Withheld Evidence and Chasing Order
When a left-behind parent applies for custody after the other parent has taken the
child out of the country, the subsequent custody order is sometimes referred to as a
"chasing order." (See Slight v. Noonkester (D.Mont., Jan. 24, 2014, No. CV 13-158-
BLG-SPW) 2014 U.S.Dist. Lexis 9133 at *14.) On December 24, 2013—approximately
one month after Fa'Alofa left France with Bilal—a French court entered such an order,
awarding Bounouar sole custody of Bilal.
At the beginning of the hearing here, the deputy district attorney explained, "We
have just recently learned that apparently on December 24th of 2013, the court in Gap,
France, did make a custody order saying that Bilal should reside with his father.
Unfortunately, we do not have a translated copy of that. We have a copy in French, but
we just received it yesterday so did not have a chance to have it translated for the court
and the parties."
On appeal, Fa'Alofa contends the court wrongly "withheld" this December 2013
order from her and, as a result, deprived her of due process and a "fair trial." However,
Fa'Alofa does not explain how having an English version of this December 2013 order
would have been relevant. Fa'Alofa submitted a partial English translation of this order
with her motion for reconsideration, and it says exactly what the deputy district attorney
represented at the hearing.
13 Moreover, there was no need to translate this December 2013 French order into
English because it is irrelevant. Custody rights under the Hague Convention are
determined as of the time of removal, not afterwards. (White v. White (4th Cir. 2013) 718
F.3d 300, 306-307.) Here, the court properly did not cite or rely on the December 2013
order in either its decision from the bench or in its subsequent written order granting the
Hague Convention petition.
Fa'Alofa also contends that because the chasing order awards Bounouar custody of
Bilal after she abducted him to the United States, then necessarily Bounouar lacked the
requisite custody rights at the time of the removal. Fa'Alofa's argument fails, however,
because Bounouar did not need sole custody of Bilal to compel his return to France under
the Hague Convention.
By order dated September 24, 2013—before Fa'Alofa abducted Bilal—the French
court awarded Bounouar joint custody. Bounouar did not need sole custody of Bilal to
make Fa'Alofa's removal wrongful under the Hague Convention. A removal of the child
without the other parent's consent is wrongful under the Hague Convention even where
both parents have equal custodial rights:
"'[F]rom the Convention's standpoint, the removal of a child by one of the joint holders without the consent of the other, is wrongful, and this wrongfulness derives in this particular case, not from some action in breach of a particular law, but from the fact that such action has disregarded the rights of the other parent which are also protected by law, and has interfered with their normal exercise. The Convention's true nature is revealed most clearly in these situations: it is not concerned with establishing the person to whom custody of the child will belong at some point in the future, nor with the situations in which it may prove necessary to modify a decision awarding joint custody on the basis of facts which have subsequently
14 changed. It seeks, more simply, to prevent a later decision on the matter being influenced by a change of circumstances brought about through unilateral action by one of the parties.'" (Witherspoon, supra, 155 Cal.App.4th at p. 972, italics omitted.)
C. Substantial Evidence of Shared Intent
To invoke the Hague Convention, removal of the child must have occurred from
the place of his or her habitual residence. (Eaddy, supra, 144 Cal.App.4th at p. 1213.)
The Hague Convention "does not define 'habitual residence,' although the cases
interpreting it have concluded that the term refers to the child's customary residence prior
to the wrongful removal . . . ." (Ibid.) Where, as here, the child is too young to make an
independent decision about living arrangements, "the parents' last shared intent as to the
child's residence is frequently determinative, provided that that intent has been carried out
of an appreciable period of time." (Ibid.)
Fa'Alofa testified that when Bilal was 16-months old, she moved to France with
Bilal to live with Bounouar as a "family" for an indefinite time. She and Bounouar
enrolled Bilal in school, which he attended until Fa'Alofa abducted him. Based on this
evidence, the court determined the parents' last shared intent was to live in France.
Additionally, the court found there was "no present intent to leave. He [Bilal] was
essentially a resident of France."
Fa'Alofa asserts that "[w]hen Johan [Bounouar] didn't help me to get a green card
to stay in France any shared intent was legally over for me as of April of 2012 when my
visa expired after [one year] of being in France." We construe this as an attack on the
sufficiency of the evidence to support the finding of habitual residence in France. We
15 reject Fa'Alofa's assertion because Fa'Alofa in fact remained in France until November
2013— more than 19 months after she claims she formed the unexpressed subjective
intent to leave. Thus, the court reasonably could disbelieve her contrary testimony about
her subjective intent. Moreover, even under Fa'Alofa's version of events, the parties' last
shared intent was to live in France together as a family, and that shared intent had already
"been carried out for an appreciable period of time" from April 2011 to April 2012,
before Fa'Alofa claims it ended. (Eaddy, supra, 144 Cal.App.4th at p. 1213.)
D. Inadequate Notice and Opportunity to Defend
Without citation to the record, Fa'Alofa asserts she was served with the summons
and a "packet of discovery" at 8:30 a.m. on the day of the hearing, requiring her
attendance less than two hours later for the hearing. She contends the order must be
reversed because she lacked adequate notice to prepare for the hearing or retain an
attorney.
The record does not contain any proof of service to indicate when Fa'Alofa
received notice of the hearing date and time. As appellant, it is Fa'Alofa's burden to
provide an adequate record to demonstrate error. (Gee v. American Realty &
Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.)
However, the record does show that at most, she could not have had more than
two days' notice: The petition for the return of the child under the Hague Convention
was filed on September 10, 2014, and the hearing occurred on September 12, 2014.
In the United States, the Hague Convention is implemented by the International
Child Abduction Remedies Act (ICARA), 22 United States Code section 9001 et seq.
16 Under ICARA, "Notice of an action . . . shall be given in accordance with the applicable
law governing notice in interstate child custody proceedings." (22 U.S.C. § 9003(c).)
In California, notice in interstate child custody proceedings is governed by Family
Code sections 3408 and 3425, which require the parties be given "reasonable notice and
an opportunity to be heard" before the court makes its order. (Hogoboom & King, Cal.
Practice Guide: Family Law (The Rutter Group 2015) ¶ 7:659.2, p. 7-311.)3
A Hague Convention hearing is an emergency proceeding that requires "'the most
expeditious procedures available'" (March v. Levine (6th Cir. 2001) 249 F.3d 462, 474)
for the "prompt" return of wrongfully removed children. (Id. at p. 465.) The Hague
Convention's "'nature is one of emergency because it seeks a speedy and immediate
solution to the cases involved.'" (Id. at p. 474.)
Accordingly, "[w]hen a party in a Hague Convention proceeding believes he or
she has not been given sufficient time to prepare opposition, it is critical to object to the
date set for hearing . . . and request a continuance on the record in order to preserve a
claim of insufficient notice or denial of a fair hearing for appellate review." (Hogoboom
& King, Cal. Practice Guide: Family Law, supra, ¶ 7:659.3, p. 7-311, citing Wipranik v.
Superior Court (1998) 63 Cal.App.4th 315 (Wipranik), italics added.)
3 For the first time in her reply brief, Fa'Alofa contends notice here is governed by Family Code section 3448, subdivision (c), which provides for a hearing on an enforcement of judgment proceeding "on the next judicial day." However, arguments raised for the first time in an appellant's reply brief are forfeited unless good reason has been shown for failure to raise them. (Garcia v. McCutchen (1997) 16 Cal.4th 469, 482, fn. 10.) Fa'Alofa makes no such showing. This rule exists because arguments made for the first time in a reply brief deprive the respondent of an opportunity to counter the argument. (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453.) 17 Wipranik, supra, 63 Cal.App.4th 315 is instructive. There, a party was given 10
days to prepare for the Hague Convention hearing. (Id. at p. 322.) On appeal, she
asserted this was an insufficient amount of time. The Wipranik court rejected this
contention because "at no time during the hearing" did her lawyer object to improper
notice, request a continuance, or request additional time to present evidence. (Id. at pp.
322-323.)
The purpose of this forfeiture rule is to encourage parties to bring any errors to the
trial court's attention so the court may correct or avoid the errors and provide a fair trial.
"'"'"No procedural principle is more familiar to this Court than that a constitutional right,"
or a right of any other sort, "may be forfeited in criminal as well as civil cases by the
failure to make timely assertion of the right before a tribunal having jurisdiction to
determine it."'"'" (Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 264, italics added by
Keener.) "'"'"'The law casts upon the party the duty of looking after his legal rights and
of calling the judge's attention to any infringement of them. If any other rule were to
obtain, the party would in most cases be careful to be silent as to his objections until it
would be too late to obviate them, and the result would be that few judgments would
stand the test of an appeal.'"'"'" (Id. at pp. 264-265.)
We are concerned the hearing in this case occurred on only two days' notice.
However, although not cited by the parties, we have found one case where a Hague
Convention hearing occurred within two days of service of the petition. (Antonio v. Bello
(N.D. Ga., June 7, 2004, Civ. A. No. 1:04-CV-1555-TWT) 2004 U.S.Dist. Lexis 17255
[Hague Convention petition filed May 28, 2004; ex parte hearing directing U.S. Marshals
18 to take custody of the child on June 1, 2004; respondent served on June 2, 2004 and
hearing occurred on June 4, 2004].) There are other cases with Hague Convention
hearings occurring between eight and 30 days after service of the petition. (See, e.g.,
Zajaczkowski v. Zajaczkowska (D.Md. 1996) 932 F.Supp. 128, 130 [collecting cases,
noting expedited nature of Hague Convention proceedings resulted in one case heard
within 30 days and another eight days after the petition was filed].)
Here, Fa'Alofa did not object to improper or inadequate notice, request a
continuance, or request additional time to present evidence or consult with or hire an
attorney. Moreover, before the hearing began, the court told Fa'Alofa, "I want to make
sure that you get an opportunity to tell me your side of the story, as well. We will start
with an outline of the facts from the district attorney, and then I will— I'll be asking
questions, perhaps of her, perhaps of the investigators, and then of course, of you. Okay,
is there anything you don't understand about what's—what we're doing here?" In
response to the court's invitation to express concerns or question about "anything you
don't understand," Fa'Alofa was silent. As a result, she and Bounouar were sworn in to
testify and the hearing began.
Under these circumstances, had Fa'Alofa been represented by an attorney, we
would find any appellate contention about inadequate notice to have been forfeited.
(Wipranik, supra, 63 Cal.App.4th at pp. 322-323.) A party cannot complain on appeal
about not receiving a continuance she never requested in the trial court. (See In re
Etherington (1950) 35 Cal.2d 863, 867 [mother waived any objection to lack of statutory
19 notice of a hearing; after court granted a one-day continuance, mother did not object to
notice or request a further continuance].)
Fa'Alofa's status as a self-represented litigant does not relieve her of the same
requirement to object or request a continuance under these circumstances. Self-
represented litigants are "held to the same standards as attorneys." (Kobayashi v.
Superior Court (2009) 175 Cal.App.4th 536, 543.) "A doctrine generally requiring or
permitting exceptional treatment of parties who represent themselves would lead to a
quagmire in the trial courts, and would be unfair to the other parties to litigation."
(Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985 .) Moreover, Fa'Alofa's self-
represented status imposed no duty on the trial court, on its own initiative, to inquire how
much time Fa'Alofa needed and then grant a continuance. Self-representation does not
entitle a litigant to special treatment. (Id. at pp. 984-985.)
E. The Deputy District Attorney's Role
Fa'Alofa asserts the deputy district attorney improperly assumed the role of
representing Bounouar at the hearing. However, the deputy district attorney did not
represent either party; she was acting as a friend of the court as expressly authorized by
Family Code section 3455 which provides:
"(a) In a case arising under this part or involving the Hague Convention on the Civil Aspects of International Child Abduction, a district attorney is authorized to proceed pursuant to Chapter 8 (commencing with Section 3130) of Part 2.
"(b) A district attorney acting under this section acts on behalf of the court and may not represent any party."
20 When the hearing began, the deputy district attorney announced her appearance,
stating, "Deputy District Attorney Jill Lindberg appearing as a friend of the court." As
such, her role was to ensure all relevant evidence and argument was before the court so
the court could make an appropriate decision. The fact such evidence favored granting
the Hague Convention petition does not make the deputy district attorney Bounouar's
advocate. "[A]n amicus who makes a strong but responsible presentation in support of a
party can truly serve as the court's friend." (Neonatology Assocs., P.A. v. Comm'r (3d
Cir. 2002) 293 F.3d 128, 131.)
The court allowed both Fa'Alofa and Bounouar to testify in narrative. After each
testified in this manner, the deputy district attorney asked Fa'alofa questions designed to
elicit evidence either establishing or refuting the essential elements of the Hague
Convention petition. These questions included, "Why did you go to France in the first
place with Kekoa and Bilal," which addresses the issue of habitual residence and last
shared intent. The deputy district attorney also asked Fa'Alofa, "[D]o you have any
concerns for Bilal's safety were he to be living in France with Mr. Bounouar," which
addressed the defense of grave risk of harm.
Significantly, the deputy district attorney did not ask leading questions. The open-
ended questions were fair and had pinpoint relevance to the disputed issues in the case.
The questions were calculated to, and did, assist the court in fulfilling its obligation to
determine whether the petition's allegations were supported by the evidence.
21 F. Domestic Violence
Fa'Alofa contends Bounouar assaulted her during the marriage and she had to flee
the family home. Although she cites no legal authority and the argument is not well
developed, she contends the court here erred because Hague Convention "takes into
account the issue of domestic violence, as the reason for a mother leaving a relationship,
or the foreign country she resided in at the time of abuse."
However, even if everything Fa'Alofa testified about is true (and Bounouar
disputed it, testifying Fa'Alofa was lying), there is no evidence of any harm to Bilal.
Fa'Alofa herself testified that she had no concerns about Bilal's safety if he was returned
to France to live with Bounouar. Her only concern was that Bilal would miss being with
his sister.
To the extent Fa'Alofa's argument is really that the court erred in determining Bilal
would not be subjected to a grave risk of harm upon his return to France, the law does not
support her contention. The "grave risk of harm" defense is narrowly drawn. (Eaddy,
supra, 144 Cal.App.4th at p. 1211.) By grave harm the Hague Convention contemplates
an intolerable situation where there is clear and convincing evidence the child would
suffer "'serious abuse'" as a result of being returned. (Ibid.) Here, the trial court properly
concluded that even if everything Fa'Alofa testified about is true, "there's no issue here
that the mother or the child is unsafe in France or that the French courts are not
competent to make this determination. So if the events she described are true and if they
should be taken into consideration with the—with respect to the custody of Bilal, that
decision has to be made by the French family court, not this one."
22 To the extent Fa'Alofa's argument is the French legal system is "too corrupt" to
fairly decide custody, that too is not a "grave risk of harm" within the meaning of the
Hague Convention. "Once the child is born, the remote parent must accept the country
where the child is habitually resident and its legal system as given." (Cuellar v. Joyce,
supra, 596 F.3d at p. 510.)
G. "No Fair Trial"
Fa'Alofa argues the court did not devote sufficient time to the hearing and should
have questioned Bounouar instead of allowing a "one sided case" to be presented.
However, when the hearing started, the court told Fa'Alofa, "I want to make sure you get
an opportunity to tell me your side of the story." After approximately 90 minutes of
testimony, the court asked Fa'Alofa if she would like to submit "anything else." Fa'Alofa
replied, "No." Having told the court she had no additional evidence to submit, Fa'Alofa
has forfeited any claim on appeal that the hearing unfairly deprived her of an opportunity
to present her case.
For the first time in her reply brief, Fa'Alofa contends that if she had been allowed
more time, she would have submitted an e-mail from Bounouar evidencing his "anger
issues." She also contends in her reply brief that she "brought evidence, for the court to
examine . . . but it was not . . . entered into the record . . . ." Additionally, her reply brief
asserts that although the court ordered Skype visits, Bounouar has "not followed the
order."
We do not consider arguments made for the first time in a reply brief unless good
cause is shown for the failure to raise them in the opening brief. This rule is necessary
23 because such arguments deprive the respondent of an opportunity to counter the
argument. (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453.)
Moreover, the court did question Bounouar; the hearing was not one-sided. The
court asked Bounouar questions about the decision to relocate to France, telephone
conversations with Fa'Alofa, and her access to his computer. The court expressed
skepticism about certain documentary evidence Bounouar submitted.
In a related argument, Fa'Alofa contends the court should have been required to
question Bounouar about who would care for Bilal, and "how stable his life would be"
once Bilal returned to France. However, this argument misconceives the nature of the
Hague Convention proceeding. The sole function of an action under the Hague
Convention is to determine if the abducted child should be returned to the country of
habitual residence. The action does not govern the merits of custody disputes; those
issues must be decided in the county of habitual residence. (Eaddy, supra, 144
Cal.App.4th at p. 1211.) The issue of "who is the better parent in the long run" is not
relevant here. (Nunez-Escudero v. Tice-Menley (8th Cir. 1995) 58 F.3d 374, 377.) The
court's concern is determining the country that is the center of the child's life. Once
established, the court "shall act expeditiously" to return the child to that country for
custody proceedings under its domestic law. (Papakosmas v. Papakosmas (9th Cir.
2007) 483 F.3d 617, 621, fn. 2.)
H. Fraudulent Claims
Fa'Alofa asserts Bounouar "presented fraudulent information that I had committed
some act of assault against him on September 9th or 10th." However, this alleged
24 incident had nothing to do with the essential issues to be determined, namely: (1) Bilal's
country of habitual residence; (2) Fa'Alofa's wrongful removal of Bilal; (3) Bounouar's
exercise of custody rights at the time of removal; and (4) the absence of grave risk of
harm to Bilal. Accordingly, the trial court properly did not rely on this disputed issue in
either its oral statement at the end of the hearing or in its written order. The incident
provided background information about marital strife and nothing more.
I. Bounouar Was Exercising Custody Rights
Removal of a child from the country of habitual residence cannot be "wrongful"
under the Hague Convention unless the petitioning parent was exercising lawful custody
rights to the child at the time of the removal. (Eaddy, supra, 144 Cal.App.4th at p. 1211.)
Whether the parent was exercising lawful custody rights is determined under the law of
the child's habitual residence. (Witherspoon, supra, 155 Cal.App.4th at p. 971.) "The
standard for finding that a parent was exercising his custody rights is a liberal one, and
courts will generally find exercise whenever 'a parent with de jure custody rights keeps,
or seeks to keep, any sort of regular contact with his or her child.'" (Walker v. Walker
(7th Cir. 2012) 701 F.3d 1110, 1121.)
Fa'Alofa contends Bounouar was not exercising custody rights at the time of the
removal. However, the record supports the court's finding that Bounouar was exercising
custody rights. The court found, "They had been living together as a family, and then he
[Bounouar] had Bilal every other week in his care and custody two months prior to his
trip to the United States. He did not acquiesce in the removal and filed Hague
[proceedings] within two weeks of when the child had been removed from France."
25 Fa'Alofa herself testified that in October and November 2013, while they were living
separately, she and Bounouar were sharing custody of Bilal "the week on, week off."
J. "The French Court Did Nothing"
Fa'Alofa asserts the court conducted "no review of the French court . . . to see if
this foreign country gave me an opportunity to receive a fair trial or due process . . . ."
Fa'Alofa's assertion is incorrect. The court reviewed the French court's joint custody
order, and determined the order was appropriate and fair, stating:
"The orders that were issued by the French court are not, shall I say, particularly onerous. They are the same—the same orders that we would issue here, which is to say that the parents are to cooperate with one another over sharing the child, that neither parent can remove the child without the other parent's consent. [¶] If it were here in this court, the order would be that the child cannot be removed from San Diego County without the other parent's consent. [¶] So that's an altogether common order and appropriate. [¶] I know that [Fa'Alofa] has complained that the order in the French court [was] one-sided. [¶] I wasn't there. I don't know what was said and how it was done. [¶] I do know that the order that the French court issued is not one-sided. The order is reasonable and gives both parents equal rights."
K. Bounouar's Return to France with Bilal
Fa'Alofa asserts the court "neglected his fiduciary duty" by allowing Bounouar to
return to France with Bilal immediately after the hearing. However, Fa'Alofa cites no
authority for the proposition a court owes any fiduciary duty to any litigant. Moreover,
the court's order expressly provides, "the child be repatriated and returned to France with
the father." The same date, the court issued a written order directing that Bilal "shall be
returned to France with [Bounouar] forthwith, pursuant to Article 12 of the Hague
Convention."
26 L. Ne Exeat Order
Citing Croll v. Croll (2d Cir. 2000) 229 F.3d 133, Fawcett v. McRoberts (4th Cir.
2003) 326 F.3d 491; Gonzalez v. Gutierrez (9th Cir. 2002) 311 F.3d 942, and Abbott v.
Abbott (5th Cir. 2008) 542 F.3d 1081, Fa'Alofa contends the French court's ne exeat order
is not a child custody order. Based on these cases, in her reply brief Fa'Alofa asserts
Bounouar had no custody rights.
This contention fails for two reasons. First, the cases Fa'Alofa cites were
abrogated approximately five years ago by the United States Supreme Court in Abbott,
supra, 560 U.S. at page 7. Contrary to her assertions, a ne exeat right granted by a
foreign court itself confers "a right of custody" under the Hague Convention. (Abbott,
supra, 560 U.S. at p. 7.) Second, entirely independent of the ne exeat order, Bounouar
had joint custody rights under French law as decreed by the French court it its September
24, 2013 order.
M. No Abuse of Discretion in Requiring Surrender of Passports
Fa'Alofa contends the court abused its discretion by forcing her to surrender Bilal's
passport so he could return to France with Bounouar. However, "The Hague Convention
and its implementing statute authorize the granting of this relief." (Axford v. Axford
(E.D. Pa., July 10, 2009, Civ. A. No. 09-2914) 2009 U.S.Dist. Lexis 65333 at *13 [child's
passport ordered to be surrendered].)
27 DISPOSITION
The order is affirmed. Each party to bear its own costs on appeal.
NARES, Acting P. J.
WE CONCUR:
O'ROURKE, J.
IRION, J.