“…and (bi-national) justice for all.” California Conference on Self- Represented Litigants April 28 – 30, 2010.

Slides:



Advertisements
Similar presentations
European Enforcement Order for uncontested claims
Advertisements

Interim measures in Russian courts in support of international arbitration: principles, procedure and the range of remedies available BRLA seminar 25 January.
Basic Introduction to Step-Parent Adoptions 2010 California Conference on Self-Represented Litigants Speakers : Lucia Reyes, Levitt & Quinn Family Law.
Presented by Jennifer Coughlin Eugene, Oregon April 10, 2013.
Taking of evidence within the European Union Council regulation no 1206/2001 on cooperation between the courts of Member States in the taking of evidence.
Suing the Federal Government. 2 History Traditional Sovereign Immunity US Constitution "No Money shall be drawn from the Treasury, but in Consequence.
The United States Agency for International Development USAID, the U.S. government’s agency for assistance, works in approximately 80 countries supporting.
Civil Litigation I Parties & Jurisdiction Not that kind of party!
FLOW CHART 1 Foreign Reciprocating Country (FRC) Seeks Paternity Establishment Through State IV-D Agency When Noncustodial Parent (NCP) is Living on a.
The Brussels II Regulation The jurisdiction of courts.
An overview by Professor M. R. Franks Copyright © 2009, M. R. Franks
Apostilles and Authentications
Procedural Safeguards Kristina Krampe, 2005 EDS 513: Legal Issues in Special Education.
L.A. 310 – DISCOVERY PART II. Depositions C.C.P section 2025 Defined: Oral testimony taken (usually prior to trial) which is: –Under oath –Before a certified.
Advanced Civil Litigation Class 6Slide 1 Steps in Filing a Complaint First, the necessary complaint must be prepared. Make sure you attach the: First,
The Name Equality Act of 2007 AB 102 (Chapter 567, Statutes of 2007)
 Mediation is a dispute resolution process in which, as an alternative to judicial or administrative decision-making process, the parties are assisted.
Legislative Rule-Making Process. Three Different Processes Higher Education 29A-3A-1 et seq State Board of Education 29A-3B-1 et seq All other state agencies.
INTERNATIONAL COOPERATION Daniel H. Claman Senior Trial Attorney U.S. Department of Justice.
Law and Motion. A Motion is an application to the court requesting some kind of relief or court order May be oral or written General types of motions.
EU: Bilateral Agreements of Member States. Formerly concluded international agreements of Member States with third countries Article 351 TFEU The rights.
MODEL IMPLEMENTING IDERA REGULATION SUMMARY POWERPOINT FIRST EDITION NOVEMBER 2014.
European payment order Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment.
Ildikó Németh, Ministry of Justice of Hungary This presentation is Co-funded by the Civil Justice Programme of the European Union Project JUST/2013/JCIV/AG/4691.
1 Hague Convention Service Michael Atkins Atkins Intellectual Property, PLLC October 25, 2012.
Introduction to Written Discovery
RA 9858.
Cross-Border Litigation and Dispute Resolution Hague Service Convention Hague Evidence Convention Recognition of Foreign Judgments Birgit Kurtz 1 April.
ALEKSANDRE TSULADZE HEAD OF THE DEPARTMENT OF THE COURT STATISTICS AND ANALYSIS Georgian Practice of Arbitration March 2014 Supreme Court of Georgia.
European Enforcement Order for uncontested claims JUDr. Radka Chlebcová.
UIFSA 101 Ins and Outs of Intergovernmental Cases Tonya Brunson & Daniel Macias.
Small claims procedure Regulation (EC) No 861/2007of European Parlament and of the Council of 11 July establishing a European Small Claims Procedure (OJ.
Discussion “International Cooperation: Service of Documents, Taking of Evidence” – Practical Implementation of Regulations No 1393/2007 and No 1206/2001.
Arbitration and mediation developments in Mexico after the NAFTA Agreement Sofía Gómez Ruano June, Committee Houston, Tx.
Service of documents within European Union Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service.
Taking of evidence within the European Union Council regulation no 1206/2001 on cooperation between the courts of Member States in the taking of evidence.
Procedural Safeguards. Purpose Guarantee parents both an opportunity for meaningful input into all decisions affecting their child’s education and the.
Post-Grant & Inter Partes Review Procedures Presented to AIPPI, Italy February 10, 2012 By Joerg-Uwe Szipl Griffin & Szipl, P.C.
Family Educational Rights and Privacy Act (FERPA) Also known as the Buckley Amendment Statute: 20 U.S.C. § 1232(g) Regulations: 34 CFR Part 99.
MODULE II: THE INSTRUMENTS OF JUDICIAL COOPERATION IN CRIMINAL MATTERS IN THE CONTEXT OF THE COUNCIL OF EUROPE.- TOPIC 4 THE 1959 CONVENTION ON MUTUAL.
Family Educational Rights and Privacy Act (FERPA) UNION COLLEGE.
And Policy on Confidentiality of Records for The University of Alabama.
1 ICAOS 2008 Rule Amendment Presentation for Deputy Compact Administrators & Compact Office Staff Presented by:
Confidentiality A Training Without the Video. Laws FERPA (1976) or the Buckley Amendment (1994) IDEA (1991) KY Safe Schools (1998)
Interstate - All Things Considered INTERSTATE ESTABLISHMENT NC CHILD SUPPORT COUNCIL 31 ST CONFERENCE, ASHEVILLE, NC AUGUST 27, 2015.
When Can You Redact Information Without Requesting an Attorney General Decision? Karen Hattaway Assistant Attorney General Open Records Division Views.
2011©Cengage Learning. All Rights Reserved.. Judicial System and History 2011©Cengage Learning. All Rights Reserved.
Procedural Safeguards for Parents What Educators Should Know Michelle Mobley NELA Cohort III.
European enforcement order for uncontested claims Regulation n. 805/2004 of the European Parliament and of the Council of April
Stacy L. Miller Attorney at Law. This session will cover appeals from Juvenile Court to Circuit Court and what is required of the Clerks of each court.
1 UNIQUE CHALLENGES TO OBTAINING AND ENFORCING INTERSTATE CASES Presented by: Victor V. Urso, Attorney, San Bernardino County Diane Brower, Attorney, Los.
Turkish private international law on matrimonial property and successions Zeynep Derya TARMAN Koç Üniversitesi Hukuk Fakültesi
COUNTY COUNSEL Brown Act Public Records Act Presenter: Janice D. Killion Public Records Act – Ethics – Conflicts of Interest.
Using Full Faith & Credit to Protect Survivors of Domestic Violence Vicky Ogawa Kimbrell Georgia Legal Service Program based on materials.
Family Law Workshop.
UNIFORM CHILD CUSTODY AND JURISDICTION ACT (U.C.C.J.E.A.)
GUKEYEH GUK’EH GU’SANI Kaska Dena Good Governance Act
International cooperation in criminal matters legal framework and examples from practice - Macedonian experiences Ohrid
Support of the foreign language profile of law tuition at the Faculty of Law in Olomouc CZ.1.07/2.2.00/
Recognition and enforcement of foreign judgments and arbitral awards in Russia Roman Zaitsev, PhD, Partner 05/09/2018.
Recognition and Enforcement of Foreign Judgments and Arbitral Awards
SUPERIOR COURT OF CALIFORNIA FAMILY LAW FACILITATOR OFFICE
Voter Eligibility & Confirmation of Residency
SUPERIOR COURT OF CALIFORNIA FAMILY LAW FACILITATOR OFFICE
Function of the International Court of Justice (ICJ):
FLOW CHART 1 Foreign Reciprocating Country (FRC) Seeks Paternity Establishment Through State IV-D Agency When Noncustodial Parent (NCP) is Living on a.
The Office of Open Records webinar will begin soon
Functional immunity (only for official acts)
EVICTIONS.
Presentation transcript:

“…and (bi-national) justice for all.” California Conference on Self- Represented Litigants April 28 – 30, 2010

Bi-National Issues Letters Rogatory Service of process Enforcement of orders Cases with identical issues pending in both California and Mexico

One Child’s Story Jean Paul Lacombe Video

Definition of Letters Rogatory Also known as a letter of request, a letter rogatory is a formal request from a court in one country to "the appropriate judicial authorities" in another country, used to request compulsion of testimony or documentary or other evidence or to effect service of process and enforcement of judgment.

Guidelines on Drafting Letters Rogatory Should be written in simple English Should be addressed "To Appropriate Judicial Authority” Include a brief synopsis of the case, including identification of the parties and the nature of the claim and relief sought to enable the foreign court to understand the issues involved State the nature of the assistance requested Include a statement expressing a willingness to provide similar assistance to judicial authorities of the receiving state

Example of a Letter Rogatory

Con’t Example of a Letter Rogatory

Requirements for Execution of Letters Rogatory Must be translated to the language of the country where it is being sent Must attach certified copies of relevant court documents (summons, petition, judgment, etc) to the letter rogatory Must be authenticated with an Apostille

Convention Abolishing the Requirement of Legalization for Foreign Public Documents Facilitates the circulation of public documents executed in one State party to the Convention and to be produced in another State party to the Convention. It does so by replacing the cumbersome and often costly formalities of a full legalization process (chain certification) with the mere issuance of an Apostille (also called Apostille Certificate or Certificate). The Convention applies only to public documents, emanating from an authority or official connected with a court or tribunal of the State (including documents issued by an administrative, constitutional or ecclesiastical court or tribunal, a public prosecutor, a clerk or a process-server); administrative documents; notarial acts; and official certificates.

Example of a California and Baja California Apostille

How to Obtain an Apostile Through the California Secretary of State: In Person (Regional Offices in San Diego, Los Angeles and San Francisco) By mail to Sacramento offices Issuance Fee: $26

Central Authority Procedure Issuance of Letter Rogatory by requesting authority Send to Central Authority U.S. Department of State (Process Forward International) U.S. Department of State Verifies the LR. If satisfies all Requirements it is forwarded to Mexico’s Central Authority - Ministry of Foreign Affairs Letter Rogatory is received by Mexico’s Central Authority and Forwarded it to the proper judicial Authority in the Republic of Mexico Letter Rogatory is received by the Proper Judicial Authority, who executes it, Returns it to Mexico Central Authority.

Judicial Channels Procedure Issuance of Letter Rogatory by requesting authority Letter Rogatory is received by Mexico’s Judicial Authority and processed through the clerk of the courtroom Letter Rogatory carried by the interested party to the proper judicial authority in Mexico

Judicial Channels vs. Central Authority  Save time - Letter Rogatory can be processed in a month  Save Money - It can be carried out by the interested party  You can establish a contact and direct communication with the foreign judicial authority for future cases

Example of Response to a Letter Rogatory

Con’t Example of Response to a Letter Rogatory

Service of Process

Service of Process and Service Abroad – Mexican Law Personal service Substituted service Publication and posting Certified Mail (only if respondent resides out of state) (§117) Service of process is generally made by an actuario- (clerk) – a government employee If respondent is in a foreign country, service shall be made by means of letter rogatory (§ 108) International letters rogatory are also governed by the Mexican Federal Code of Civil Procedure, and by international treaties to which Mexico is a signatory

Service Abroad - California Law Outside of the United States, a summons shall be served: As provided in this chapter, or As directed by the court in which the action is pending, or If the court finds that service is reasonably calculated to give actual notice, As prescribed by the law of the place where the person is served, or As directed by the foreign authority in response to a letter rogatory. ( CCP § (c); CCP § )

CAVEAT: “Subject” to the Hague Service Convention on the Service Abroad of Judicial or Extrajudicial Documents in civil or commercial matters CCP § (c) “Subject” to is not the same as “pursuant” to, but treaties trump state law – Yamaha case

Service by Mail to Mexico? A summons may be served on a person outside this state in any manner provided by this article or by sending a copy of the summons and of the complaint to the person to be served by first-class mail, postage prepaid, requiring a return receipt. (CCP ) Query: Would that apply to Mexico? (International registered mail available but survey results contra)

Service Abroad – International Law Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Criminal Matters U.S. and Mexico are both signatories to the convention Inter-American Convention on Letters Rogatory - for members of Organization of American States: includes U.S. and Mexico

Hague Convention on Service Applies in civil cases To transmit judicial documents For service abroad Does not apply where defendant’s address is not known Convention deals with transmittal of documents, not the actual service

Hague - Transmission channels Central Authority Consular or diplomatic channels Postal channels Direct communication between judicial officers, officials or other competent persons of the State of origin and the State of destination Direct communication between an interested party and judicial officers, officials or other competent persons of State of destination

Hague Model Form Requirements Request for Service Certificate (proof of service) Summary of Documents to be Served Recommended warning of legal nature, purpose, and effects of documents being served

Inter-American Convention Applies to letters rogatory in civil or commercial cases before judicial or adjudicatory authorities For the performance of procedural acts of a merely formal nature, such as service of process, summons or subpoenas abroad

I – A Convention Options for Sending Letters Rogatory May be transmitted by interested party: To Central Authority Through diplomatic or consular agents Through judicial channels States parties in “economic integration systems” may agree directly between themselves upon special methods and more expeditious methods a copy

Imperial Court Forms Ex Parte Application for Issuance of Letter Rogatory for Service of Process Abroad; Order Letter Rogatory: Request for International Judicial Assistance for Service of Process Abroad Based on California and international laws and treaties

Ex parte Application for Issuance of Letter Rogatory

Letter Rogatory Example

Con’t Letter Rogatory Example

Guardianships/Passports Issues Guardianships: One or both parents in Mexico Passports: No order or joint custody, with one parent in Mexico

Guardianship A parent or person with legal custody should receive personal service 15 days before the hearing or signed Notice and Acknowledgement - Prob. Code § 1511 (b) (2)(3); CCP §§ , Relative(s) named in petition receive service by mail 15 days before hearing unless court waives - Prob. Code § 1511(c)(2)

Guardianship - Good Cause Exception to Personal Service Legislative Comment examples: (a) notice would be useless or detrimental to the person to receive notice and (b) after the exercise of reasonable diligence, the whereabouts of the person is unknown

Guardianship Is it “good cause” if the only factor is that one of the parents/legal guardians resides in Mexico? They may have important but unknown information about the proposed guardian. Personal service could be made by means of letter rogatory

Passports: Establishing Parental Consent If Only One Parent Applies If non-applying parent will consent, have non-applying parent sign Statement of Consent (Form DS-3053) If non-applying parent will not consent, applying parent may complete a Statement of Special Circumstances explaining why written consent of non-applying parent cannot be obtained (Form DS-3053)

Passports - Motions/Orders to Show Cause Assume U.S. citizen minor needs a U.S. passport - Minor must have parental consent to obtain U.S. passport. What if one parent is in Mexico and does not consent? Solution: obtain a sole custody order or court order specifically permitting applying parent’s travel with child Serve absent parent with motion/OSC by means of letter rogatory

Enforcement of Judgments/Orders in Dual Jurisdictions

Registration of Mexican Child Support Judgments in California under UIFSA Family Code Section 4951 (UIFSA) Fill out form Judicial Council Form FL-570 and Registration Statement form OMB 0970 – A letter of transmittal or letter rogatory from Mexico requesting registration and enforcement (in English) Two copies of the order to be registered (including one certified) The name of the obligor and if known: obligor’s SSN, employer or any other source of income a description. (Comment: where does that go?)

Process of Registration of Child Support Judgment File judicial form FL-570, with the Registration form and all the necessary attachments and judicial Form FL-575 (Request for Hearing Regarding Registration Of Support Order) Once the petition is filed, the clerk will mail the Respondent a copy of the Notice of Registration with a copy of all attachments The Respondent has 25 days from the date the notice was mailed to contest the validity of the registered order by filing Judicial Form FL-575 Hearing Regarding Registration of Support Order If Respondent does not contest the validity or enforcement of the registered order the order will be registered.

Contesting the Validity of an Out- Of-State Child Support Order Family Code §§ 4955, 4956 The obligor is not the person named in the Registration Statement. The court that issued the order did not have personal jurisdiction over the respondent The support order was obtained by fraud The order has been stayed pending appeal

 Family Code § 3445 (UCCJEA)  Fill out form Judicial Council Forms FL-580, FL-105, FL  A letter or other document requesting registration (translated to English)  Two copies of the order to be registered (including one certified)  The name and address of the person seeking registration Registration of Mexican Child Support Judgment in California under UIFSA

Process of Registration of a Foreign Custody Judgment File judicial form FL-580, with the Registration form and all the necessary attachments and judicial Form FL-585 (Request for Hearing Regarding Registration Of Support Order) Once the petition is filed, the clerk will mail the Respondent a copy of the Notice of Registration with a copy of all attachments The Respondent has 20 days from the date the notice was mailed to contest the validity of the registered order by filing Judicial Form FL-585 Hearing Regarding Registration of Support Order If Respondent does not contest the validity or enforcement of the registered order the order will be registered.

 Family Code § 2091 (UDRA).  One of the parties has to be domiciled in the foreign country at the time the proceeding for the divorce was commenced.  Foreign Acts are given full faith and credit as long as are not contrary to the dispositions of the U.S. Constitution. Family Code §  No special proceeding for registration is necessary unless there is something to be enforce. C.C.P. § 1913 Registration of Mexican Divorce Judgments under UDRA

Enforcement of California Orders and Judgments in Mexico LAWS REGULATING THE RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS IN MEXICO The Inter-American Convention on Extraterritorial Validity of Foreign Judgments and Arbitral Awards The Inter-American Convention on Jurisdiction in the International Sphere for the Extraterritorial Validity of Foreign Judgments Mexico Federal Code of Civil Procedure (FCCP) Code of Civil Procedure for the State of Baja California) Baja CA CCP Section IV, Articles 585 – 594 International Reciprocity principle - UIFSA for Child Support Cases

Conditions for Recognition and Enforcement of Foreign Judgments under the FCCP  All requirements for letters rogatory must be satisfied  The court rendering the judgment had proper jurisdiction to try the matter and to pass judgment on it.  Service of process on defendant has been made in due legal form.  There must be no similar case in a Mexican court as result of the same legal action  The judgment must not be contrary to Mexican public policy  The judgment must fulfill all the formal requirements to be considered authentic (Apostille)

PROCEDURE FOR ENFORCEMENT OF FOREIGN JUDGMENTS (“HOMOLOGACION DE SENTENCIAS EXTRANJERAS)” IN MEXICO ACCORDING TO THE FCCP File a petition in the Family law court, for the registration and enforcement of a foreign judgment know as “Incidente de Homologación de Sentencias Extrnajeras” Once the petition is filed, the parties involved are given a 9 days period to defend themselves against the allegations After the Court has heard the allegations, the Court will issue a judgment granting the recognition and enforcement or denying it. An appeal process is also available to both parties, for which a 5 day period is granted

Registration and Enforcement of Mexican Judgments in California What could have been done in Lacombe case?

Final Considerations First: Verify that the judgment meets the conditions to be enforceable in Mexico: The Court of origin had proper jurisdiction The judgment is res judicata No case is pending in Mexico involving the same parties/legal issues Judgment is not contrary to public policy in México Secondly: Obtain a letter rogatory that meets all suggestions made earlier: General guidelines and information Statement from court to satisfy comity condition Statement proving that judgment is res judicata Statement giving full and specific powers to executing court

Final Considerations con’t Third: Get all documents needed ready: Letter rogatory Judgment Copy proving proper service of process Copy proving that judgment is res judicata (if it is not included in the letter rogatory) Finally: Authenticate all documents (Apostille); Translate everything into Spanish; and File it in the proper court in Mexico. (Refer to Imperial local form for registration/enforcement)

Motion to Quash

Dual Jurisdiction Cases Common issues in Imperial County - Prior judgment in Mexico, or Another action pending in Mexico between the same parties on the same cause – e.g., dissolution, UPA, child support Remedy: Motion to Quash

Memorandum of Points and Authorities

Con’t Memorandum of Points and Authorities

Memo of P’s & A’s Self Help Guideline No. 16: “A court self help-center may not create documents for litigants that require strategic decision making on behalf of litigants by self-help center staff…” OK - boilerplate, fillable form P’s & A’s Use boxes to check Refer to attached declaration written by litigant

P’s & A’s con’t Prior judgment of dissolution: no longer any marital res in second in time served jurisdiction. See Zierenberg – prior Puerto Rican disso Pending dissolution in Mexico – invokes the court’s discretion under theory of comity; consider abatement of action

P’s & A’s con’t Mexico is a “state” under UCCJEA (Fam. Code 3400 et seq.) Prior Mexican judgment of child custody should be recognized if made in substantial conformity with UCCJEA Similar rule for pending child custody case in Mexico unless temporary emergency jurisdiction under FC 3424

P’s & A’s con’t Mexico is a “state” under UIFSA because California (rather than U.S.) has reciprocal agreement with Mexico Child support judgment or pending action in Mexico should be recognized However voluntary payments (comprobante) not a bar to CA case

Contacts Directory Aguascalientes judicial web page Baja California Judicial web page Baja California Sur Judicial web page Campeche judicial web page Chiapas judicial web page Chiapas judicial web page Chihuahua Judicial web page Coahuila judicial web page Colima Judicial web page Distrito Federal web page Durango judicial web page Estado de Mexico judicial web page Guanajuato judicial web page Guerrero judicial web page Hidalgo judicial web page Jalisco Judicial web page Michoacan judicial web page Morelos judicial web page Nayarit judicial web page

Con’t Contacts Directory Nuevo Leon judicial web page Oaxaca Judicial web Page Puebla judicial web page Puebla Judicial web page Queretaro Judicial web page Quintana Roo judicial web page San Luis Potosi web judicial page Sinaloa Judicial web page Sonora Judicial web page Tabasco judicial web page Tamaulipas Judicial web page Tlaxcala judicial web page Veracruz Judicial web page Yucatan judicial web page Zacatecas Judicial web page