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The Blog of International Judicial Assistance | By Ted Folkman of Folkman LLC

Case of the Day: Gallegos v. Garcia Soto

Posted on May 6, 2020

Here is a post by first-time guest author and friend of Letters Blogatory Melissa Kucinski. Melissa practices family law at MK Family Law in Washington, and she focuses on cross-border cases. She has just started a blog on “family law across borders,” which I’ll be keeping an eye on. Melissa comments on a new Abduction Convention case in the Western District of Texas, in which the judge ordered the return of a child but stayed his order indefinitely in light of the pandemic. I don’t have a view on whether or not this is sensible, but I suspect we will be seeing many judges grapple with such questions, in this context and others.

As I write this blog post, the U.S. east coast is nearly two months into a quarantine imposed by the COVID-19 pandemic. The public health crisis has all but shut down our court systems, and, for the first time ever, our U.S. Supreme Court held oral argument live, accessible to the public, all by telephone. It is inevitable that we will start seeing court opinions where COVID-19 plays a prominent role. On April 30, 2020, in Gallegos v. Garcia Soto (W.D. Tex. 2020), we see the first reference to COVID-19 in a Hague Child Abduction case in the United States. The Hague Child Abduction Convention is a private international law treaty that secures the prompt return of a child abducted by her parent to a treaty partner country. Its entire goal is to return the family to the status quo so that the parents can litigate their underlying child custody case in the appropriate jurisdiction.

In Gallegos, the child was, in fact, returned to its habitual residence (Mexico) using this treaty. The case focused on the Respondent Mother’s argument that the Father’s spousal abuse presented a grave risk to the minor child under Article 13(b) of the treaty. The court ultimately found too little nexus between the mother’s alleged abuse and any grave risk to the child.

The grave risk argument should have taken center stage in any Hague Child Abduction case, especially with the recent release of a Guide to Good Practice by the Hague Conference on this very exception. However, the most interesting part of the Gallegos case was the judge’s decision to stay his own return order indefinitely because of the COVID-19 pandemic. The court specifically said that this stay would remain in effect “until such time as the Court and the parties can be reasonably confident that the COVID-19 pandemic no longer renders international travel unsafe and widespread social distancing practices are no longer necessary.” The judge’s broad language leaves open the possibility that this child may not return to Mexico any time soon, and generates questions, such as the standard for safe international travel and what evidence would satisfy both the court and the parties that the child could return to Mexico safely.

Case of the Day: Mattel, Inc. v. Animefunstore

Posted on May 5, 2020

The case of the day is Mattel, Inc. v. Animefunstore (SDNY 2020). Mattel sued several Chinese defendants, including Animefunstore, known in the decision as the “Wang defendants,” for selling counterfeit versions of UNO, the card game. Mattel sought and obtained an ex parte temporary restraining order, and the court authorized Mattel to serve process by alternate means including email. It justified the motion by noting that “third-party merchants on DHgate, Alibaba and AliExpress, like the Wang Defendants, have been known to use aliases, false addresses and other incomplete identifying information to shield their true identities and there were, in fact, only partial, incomplete or no physical addresses whatsoever associated with the majority of the Wang Defendants’ User Accounts.” The court granted the motion, and after service, the defendants moved to dismiss.

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Don’t Forget The Restatement (Fourth)

Posted on May 4, 2020

In my post on Clay v. Hilton, I gave what I think is the usual or orthodox view: a judgment of state A that is recognized in state B has the preclusive effect that it would have in state A. It doesn’t have more preclusive effect in order to avoid mischief. It doesn’t have less preclusive effect, in order to avoid needless follow-on litigation. In support of this view, I cited the Restatement (Second) of Conflict of Laws, which is showing its age but hasn’t yet been replaced by the new restatement on conflicts, which is a work in progress. But friend of Letters Blogatory Bill Dodge reminded me that the ALI’s current view on this question is not in the Restatement (Second) of Conflicts at all, but rather in the Restatement (Fourth) of the Foreign Relations Law of the United States. Section 487 of the Restatement (Fourth) provides:

A foreign judgment entitled to recognition under § 481 is given the same preclusive effect by a court in the United States as the judgment of a sister State entitled to full faith and credit. A foreign judgment will not be given greater preclusive effect in the United States than the judgment would be accorded in the state of origin

This doesn’t really change the analysis I gave in my post, but it is a good opportunity to remind everyone including me of the still-new Restatement (Fourth). It is a great resource for lawyers and judges. So if you are like me, and your first instinct, when another lawyer asks you a question about the law, is to reach for the appropriate Restatement, remember to add the Restatement (Fourth) to the list of restatements you consult.