Case Update (27 Dec 2024): Cohen v. Gbele; “Provisional Measure” of returning child to Mexico before a Merits Hearing violated Father’s Due Process
The parties are parents to one child, who is subject to a Mexican custody order, and primarily resides with Cohen, the Child’s Mother, in Mexico, with parenting time with Gbele, Father, in Arizona. Presumably because the Mother felt that the Father was wrongfully retaining the child in Arizona at the end of permitted parenting time, the Mother filed a request to return the child to Mexico pursuant to the Hague Abduction Convention on December 20, 2023 in the Arizona state courts. The Court, at an initial hearing in January 2024, found “service [on the Father] was impractical and therefore authorized service by alternative means.” On January 31, 2024, the Mother filed a notice “stating that Gbele had been served with Cohen’s petition” and that same date, based on prior testimony by the Mother at the initial hearing, the court entered a “pick-up order” directing law enforcement to transfer custody of the child from the Father to the Mother in Mexico. The court made this order upon finding “that the minor child is imminently likely to suffer serious physical harm or be removed from this state without the issuance” of the order. The Father sought to vacate the pick-up order arguing due process grounds. The court, however, did not take evidence, did not decide on the merits of the Mother’s underlying petition, and stated that the Father “could not challenge the pick-up order because the order did not ‘resolve any of [Mother’s] claims’ from the petition and therefore was not a final judgment.” It also found the Father’s request to challenge the pick-up order to be moot because the child had been returned.
The Father appealed. The Court of Appeals confirmed that the appeal was not moot simply because the child had already been removed to Mexico (see Chafin v. Chafin). The appeal was also not moot because it might conceivably carry collateral consequences for the Father, for example, if the court’s findings were used in a later Mexican custody proceeding.
The Mother argued 22 USC 9004(a) - the portion of the International Child Abduction Remedies Act that permits the court seized in the Abduction Convention matter to enact provisional measures “to protect the well-being of the child involved or to prevent the child’s further removal or concealment before the final disposition of the petition.” The Court of Appeals found, however, that, to the contrary, “the order facilitated the child’s return to Mexico so that neither the petition nor [the Father] could be heard.”
The provisional remedies portion of ICARA might allow a court to do what it did here, but has an overlay of underlying state law. The underlying state law in Arizona says that “no court may ‘order a child removed from a person having physical control of the child unless the applicable requirements of State law are satisfied.” There are provisions in state law - specifically in the Uniform Child Custody Jurisdiction and Enforcement Act - that provide for these pick-up orders, but the Court of Appeals specifically noted that the UCCJEA’s provisions that allow a pick-up order to enforce a foreign child-custody order “generally requires notice to the respondent and a hearing before the trial court may order that the petitioner take immediate custody of a child.”
Therefore, the pick-up order is vacated - “such provisional remedies must also satisfy state law, and [the Mother] simply has not explained how the trial court’s pick-up order satisfied Arizona law. The court erred when it removed the child from [the Father’s] physical control and from its own jurisdiction without affording [the Father] an opportunity to be heard.” The Court of Appeals did comment that it recognizes that the trial court can “no longer effectually order the child’s return as [the Mother] sought in her petition” because the child is already back in Mexico. Therefore, the Court of Appeals has remanded for the court to determine whether to dismiss the petition and for any other action “as may be consistent with this decision.”
This opinion is non-precedential.
