Duarte v. Bardales

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

EMILIA DUARTE,  No. 06-56808
Plaintiff-Appellant,
v.  D.C. No.
CV-06-00158-TJW
HECTOR BARDALES,
OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, District Judge, Presiding

Argued November 6, 2007
Submitted January 11, 2008
Pasadena, California

Filed May 20, 2008

Before: Myron H. Bright,* Harry Pregerson, and
Carlos T. Bea, Circuit Judges.

Opinion by Judge Bright;
Dissent by Judge Bea

*The Honorable Myron H. Bright, Senior Circuit Judge, United States
Court of Appeals for the Eighth Circuit, sitting by designation.

5785
5788 DUARTE v. BARDALES

COUNSEL

Beverly Baker-Kelly, Oakland, California, and Howard
Moore, Jr., Berkeley, California, for the appellant.

Victor Mordey, Chula Vista, California, for the appellee.

OPINION

BRIGHT, Circuit Judge:

On January 23, 2006, Emilia Duarte (“Duarte”) filed in
United States District Court for the Southern District of Cali-
fornia a petition for the return of her children pursuant to the
Hague Convention on the Civil Aspects of International Child
Abduction (“Hague Convention”), as implemented by the
International Child Abduction Remedies Act, 42 U.S.C.
§§ 11601-11610 (“ICARA”). After Duarte failed to appear
before the court for a scheduled hearing, the district court
entered judgment denying Duarte’s Hague Petition. Duarte
 DUARTE v. BARDALES 5789
timely filed a motion to vacate the judgment under Fed. R.
Civ. P. 59(e) (“Rule 59(e)”), which the district court denied.
Duarte now appeals the district court’s order denying her
motion to set aside judgment. We reverse and remand, ruling
that the district court abused its discretion by denying
Duarte’s Rule 59(e) motion.1

Because the district court must decide the merits of
Duarte’s petition on remand, we also address whether equita-
ble tolling of time requirements under the Hague Convention
is available to Duarte. We hold that it is available and there-
fore the district court may consider whether to apply equitable
tolling to Duarte’s Hague Petition.

I.

A. Factual Background

Emilia Duarte and Hector Bardales (“Bardales”) entered
the United States from Mexico in 1990. Together they have
four children—age 17, age 16, age 11, and age 9.2 Duarte and
Bardales never married. In January 2000, they separated and
Duarte returned to Mexico with their four children. In 2002,
the two oldest children visited Bardales in California. After
expressing that they did not want to live with Duarte, they
established residency with Bardales in San Diego, California.
The two youngest children remained with Duarte in Mexico.
1
The primary issue in this case is whether the district court properly
denied Duarte’s Rule 59(e) motion to vacate judgment. Footnotes 1 and
2 in Judge Bea’s dissent refer to issues that are not before us. The district
court made no findings on the matters referred to in those extraneous
footnotes—matters that might prove to be harmful to the children.
2
The birthdays of the children from oldest to youngest are: October 16,
1990, October 25, 1991, October 26, 1996, and June 6, 1998. Because the
Hague Convention does not apply once a child reaches the age of sixteen,
the two older siblings were dropped from the case in December 2006. See
Hague Convention art. 4.
5790 DUARTE v. BARDALES
On July 8, 2003, Duarte brought the two youngest children
to visit with Bardales in Tijuana, Mexico. While there, Bar-
dales removed them from Mexico and brought them to Cali-
fornia to live with him. It is undisputed that Bardales took the
two youngest children without Duarte’s knowledge or permis-
sion. Bardales then immediately filed petitions in California
Superior Court for emergency child custody and to establish
paternity. The state court awarded Bardales sole custody until
Duarte appeared in state court.

In September 2003, Duarte filed a Hague Petition with the
Central Authority in Mexico, which was transmitted to the
Central Authority in the United States a month later.3 In
December 2003, Duarte’s petition was turned over to the San
Diego District Attorney’s Office and in August 2004 was
assigned to a Deputy District Attorney. For reasons unknown,
Duarte’s petition was not filed in California state court until
nearly a year later in April 2005.

Duarte’s state Hague Petition was consolidated with Bar-
dales’s paternity petition, and the case was set for a hearing
in California Superior Court on April 25, 2005. Duarte
appeared at that hearing without counsel. The court granted a
continuance to permit Duarte to retain counsel. Duarte, how-
ever, failed to show up at two subsequent court dates and as
a result, the court removed Duarte’s petition from the calendar
without prejudice and awarded Bardales sole custody of the
children. Duarte appealed this decision to the California Court
of Appeal.

While her appeal was pending, Duarte filed the present
Hague Petition in federal court.4 The California Court of
3
Article 6 of the Convention requires every “Contracting State [to] des-
ignate a Central Authority to discharge the duties which are imposed by
the Convention upon such authorities.” Hague Convention art. 6.
4
The federal and state courts have concurrent jurisdiction under ICARA.
42 U.S.C. § 11603(a).
 DUARTE v. BARDALES 5791
Appeal stayed Duarte’s appeal pending adjudication of her
Hague Petition in federal court.

B. Proceedings Before the Federal District Court

The district court scheduled a hearing on Duarte’s Hague
Petition for September 1, 2006. At the hearing, Duarte’s coun-
sel requested a continuance because Duarte could not enter
the United States. Her counsel explained that two days prior
to the scheduled hearing date, her bag, containing her passport
and visa, was stolen as she was leaving a train station in Mex-
ico. The district court denied the request for a continuance on
the grounds that Duarte’s counsel failed to offer sufficient
proof that Duarte’s purse was stolen, and Duarte had a “re-
cord of non-appearance” before both the federal and state
courts. The district court tentatively denied Duarte’s Hague
Petition because she was not present to establish a prima facie
case of unlawful removal or retention. The court stayed entry
of judgment for two weeks to give Duarte an opportunity to
file with the court a certified police report. If Duarte failed to
provide a certified police report by September 15, 2006, the
court would enter judgment denying Duarte’s petition.

On September 15, 2006, Duarte filed, as proof that her
purse was stolen, a declaration from a Transit Authority
Agent and a copy of the police report. Duarte also indicated
that it was not possible to obtain a certified police report in
Mexico because transit authority agents are not permitted to
have such documents notarized. Duarte requested that the dis-
trict court accept the declaration and copy of the police report
in lieu of a certified police report. The district court rejected
Duarte’s offer of proof finding the declaration and traffic
report insufficient because: (1) there was no evidence that an
agency generated the written report; (2) Duarte’s counsel rep-
resented to the court that obtaining a certified police report
would be “no problem”; and (3) it was highly improbable that
the report was filed on the day of the theft. The district court
5792 DUARTE v. BARDALES
lifted the stay on September 15, 2006 and entered final judg-
ment denying Duarte’s petition.5

On September 29, 2006, Duarte timely filed a motion to
alter or amend the judgment of the district court pursuant to
Rule 59(e). Duarte argued that the district court committed
manifest error in entering judgment denying Duarte’s petition.
Specifically, Duarte claimed that it was impossible for her to
comply with the court’s order to provide a certified police
report because such reports are not issued in Mexico. In sup-
port of her motion, Duarte presented evidence from several
attorneys and government officials in Mexico declaring that
Duarte reported to the police that her purse was stolen on
August 29, 2006, and that the Transit Authority in Mexico
does not issue certified or non-certified police reports.

In a written order, the district court practically conceded
that it may have committed clear error when, as a result of
Duarte’s failure to submit a certified police report, it entered
judgment against her. The court, however, did not grant
Duarte’s Rule 59(e) motion on that basis, but instead ruled on
the merits of Duarte’s Hague Petition. The court concluded
that because Duarte’s Hague Petition did not entitle her to any
relief, the production and acceptance into evidence of a police
report would not have affected the outcome of the case.
Accordingly, the court denied Duarte’s Rule 59(e) motion.
This appeal followed.

II.

“A denial of a motion for reconsideration under Rule 59(e)
is construed as one denying relief under Rule 60(b) and will
not be reversed absent an abuse of discretion.” Pasatiempo v.
Aizawa, 103 F.3d 796, 801 (9th Cir. 1996) (citing Barber v.
5
The order denying Duarte’s offer of proof and entering judgment was
entered on the court’s docket on Monday, September 18, 2006.
 DUARTE v. BARDALES 5793
Hawaii, 42 F.3d 1185, 1198 (9th Cir. 1994); Fuller v. M.G.
Jewelry, 950 F.2d 1437, 1441 (9th Cir. 1991)).

[1] It is appropriate for a court to alter or amend judgment
under Rule 59(e) if “(1) the district court is presented with
newly discovered evidence, (2) the district court committed
clear error or made an initial decision that was manifestly
unjust, or (3) there is an intervening change in controlling
law.” Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th
Cir. 2001). After reviewing the record, we determine that the
court’s denial of the motion was clear error or manifestly
unjust and thus an abuse of discretion.

[2] First, in denying Duarte’s Rule 59(e) motion, the dis-
trict court seemed to recognize that it was a mistake to enter
judgment against Duarte because she failed to provide a certi-
fied police report when it was impossible for her to obtain
such certification. Once the court acknowledged that the basis
underlying its original judgment was wrong, it was error not
to set aside the judgment.

[3] Second, it was clearly improper for the district court not
to follow through with its representation that if Duarte sub-
mitted proof that her purse was stolen it would reschedule the
hearing. At the September 1, 2006 hearing, the court stated,
“Failure to supply me with a certified copy of that report will
result in the entry of that judgment which I just indicated as
a [sic] tentative.” Sept. 1, 2006 Hr’g Tr. at 5. The district
court went on to state, “And so if we see that on the 15th, if
you’ve got that on the 15th, then I’ll put the matter back on
the calendar for a status [sic] and we’ll address any deposi-
tions or anything else that you want to address.” Id. at 9. In
our view, the district court could not have been any clearer:
If Duarte provided sufficient proof that her purse was stolen,
the court would not enter judgment and would place the Sep-
tember hearing back on the calendar. At the very least, to pre-
serve the fairness and the integrity of the judicial proceedings,
the district court should have followed its own representations
5794 DUARTE v. BARDALES
and put the case back on the calendar once Duarte provided
a certified copy of the police report (or its equivalent). At the
time the court denied Duarte’s Rule 59(e) motion, it was
apparent that the proof submitted by Duarte served the pur-
pose of providing a certified copy of the police report.

[4] Finally, it was error for the district court to decide the
merits of Duarte’s petition when the only issue before it was
whether, under Rule 59(e), the court should vacate the previ-
ously entered final judgment.

With respect to the merits of Duarte’s Hague Petition, the
record was incomplete. Specifically, a significant dispute
existed between the parties as to whether the filing period for
Duarte’s Hague Petition should be tolled.6 This was a critical
issue in determining the merits of Duarte’s petition. If tolling
did not apply, Duarte had filed her petition more than a year
from wrongful removal, and Bardales could assert the affir-
mative defense that the children are well settled and should
not be returned. See infra Part III. If, however, tolling did
apply then the “well settled” affirmative defense was not
available to Bardales.

[5] In denying Duarte’s Rule 59(e) motion, the district
court determined that Bardales did not hide the children from
Duarte and therefore equitable tolling did not apply. In so
doing, the court disregarded the fact that the record was
incomplete on the issue of tolling. Indeed, Duarte provided
6
Duarte contended that the court should toll the period between Septem-
ber 1, 2003 and June 2, 2005, because during that time Bardales hid the
children from her. She claims that she did not know their whereabouts or
have any contact with them until Bardales’s attorney contacted her on
June 2, 2005 and gave her Bardales’s phone number. Duarte argues that
during this period she made genuine efforts to locate Bardales and the
children to no avail. Bardales contended that he did not hide the children
from Duarte. He argued that because he and the children continued to
reside at the same address where Bardales and Duarte lived prior to their
separation in 2000, Duarte could have easily located the children.
 DUARTE v. BARDALES 5795
the district court with the names of witnesses and a list of
exhibits she intended to introduce at the September hearing on
the issues of tolling and removal. Because the court ruled on
the merits sua sponte and without notice to the parties when
it denied the Rule 59(e) motion, Duarte was never given the
opportunity to introduce this additional evidence and com-
plete the record on tolling. This, we hold, was error.

[6] Accordingly, Duarte is entitled to relief from the judg-
ment.

On remand the district court will have to decide whether to
toll the one-year filing period. Therefore, we must now
address whether equitable tolling is available under the Hague
Convention and ICARA, an issue of first impression in this
Circuit.

III.

[7] “The Hague Convention on the Civil Aspects of Inter-
national Child Abduction is an international treaty among the
United States and fifty other countries. . . . [and] only applies
when both countries are parties to it.”7 Gonzalez v. Gutierrez,
311 F.3d 942, 944 (9th Cir. 2002) (citing Hague Convention
art. 35). The Convention is intended to “secure the prompt
return of children wrongfully removed or retained.” Hague
Convention art. 1. “It is designed to restore the ‘factual’ status
quo which is unilaterally altered when a parent abducts a child
and aims to protect the legal custody rights of the non-
abducting parent.” Feder v. Evans-Feder, 63 F.3d 217, 221
(3d Cir. 1995) (citing Hague International Child Abduction
Convention, 51 Fed. Reg. 10,494, 10,505 (Dep’t of State
March 26, 1986) (Pub. Notice)). In addition, the Convention
is intended to “deprive parties of any tactical advantages
7
Mexico became a party to the Convention on October 1, 1991. See
http://travel.state.gov/family/abduction/country/country_508.html (last
visited Jan. 28, 2008).
5796 DUARTE v. BARDALES
gained by absconding with a child to a more favorable
forum.” Holder v. Holder, 392 F.3d 1009, 1013 (9th Cir.
2004). “[A] judicial proceeding under the Convention is not
meant, however, to inquire into the merits of any custody dis-
pute underlying the petition for return.” Gonzalez, 311 F.3d
at 945; Hague Convention art. 19.

[8] Article 12 requires the judicial or administrative author-
ity to “order the return of the child” who has been wrongfully
removed or retained within the meaning of the Convention if
“at the date of the commencement of the proceedings . . . a
period of less than one year has elapsed from the date of the
wrongful removal or retention.” Hague Convention art. 12. A
person seeking the return of a child under the Convention may
do so by filing a petition in a court where the child is located.
42 U.S.C. § 11603(b). The petitioner has the burden of prov-
ing by a preponderance of the evidence that “the child has
been wrongfully removed or retained within the meaning of
the Convention.” § 11603(e)(1)(A). Removal is wrongful
when:

(a) it is in breach of rights of custody attributed to
a person, an institution or any other body, either
jointly or alone, under the law of the State in which
the child was habitually resident immediately before
the removal or retention; and

(b) at the time of removal or retention those rights
were actually exercised, either jointly or alone, or
would have been so exercised but for the removal or
retention.

Hague Convention art. 3.

“Return is not required, however, if the abductor can estab-
lish one of the Convention’s narrow affirmative defenses,”
Gaudin v. Remis, 415 F.3d 1028, 1034-35 (9th Cir. 2005),
which includes the “well settled” affirmative defense under
 DUARTE v. BARDALES 5797
Article 12. Article 12 provides that return will not be required
if the abductor establishes by a preponderance of the evidence
that the petition for return was filed more than a year from the
wrongful removal and the child is well settled in her new
environment. Hague Convention art. 12; § 11603(e)(2)(B).

[9] This one-year filing period is of particular importance
under the Convention because the “well settled” affirmative
defense is only available if the petition for return was filed
more than a year from wrongful removal. The potentially
prejudicial effect of failing to file within a year from removal
has led courts to apply equitable principles to toll the one-year
period, notwithstanding the fact that both the Convention and
ICARA are silent as to whether such principles apply. See
Furnes v. Reeves, 362 F.3d 702, 723 (11th Cir.), cert. denied,
543 U.S. 978 (2004); Giampaolo v. Erneta, 390 F. Supp. 2d
1269, 1282 (N.D. Ga. 2004); Belay v. Getachew, 272 F. Supp.
2d 553, 562-64 (D. Md. 2003); Bocquet v. Ouzid, 225 F.
Supp. 2d 1337, 1348 (S.D. Fla. 2002); Mendez Lynch v.
Mendez Lynch, 220 F. Supp. 2d 1347, 1362-63 (M.D. Fla.
2002); but see Anderson v. Acree, 250 F. Supp. 2d 872, 875
(S.D. Ohio 2002) (holding equitable tolling does not apply to
petitions filed under the Hague Convention); Toren v. Toren,
26 F. Supp. 2d 240, 244 (D. Mass. 1998), vacated on other
grounds, 191 F.3d 23 (1st Cir. 1999) (same).

[10] The Eleventh Circuit is the only Circuit to have
decided whether equitable tolling is applicable under the Con-
vention. Furnes, 362 F.3d at 723. In Furnes, the court held
that the one-year filing requirement could be tolled under cir-
cumstances where the abducting parent took steps to conceal
the whereabouts of the child. Id. In so holding, the court
adopted the district court’s reasoning in Mendez Lynch. Id.
(“We agree . . . that equitable tolling may apply to ICARA
petitions for the return of a child where the parent removing
the child has secreted the child from the parent seeking
return.”) (citing Mendez Lynch, 220 F. Supp. 2d at 1362-63)).
5798 DUARTE v. BARDALES
In Mendez Lynch, the court reasoned that “[i]f equitable
tolling does not apply to ICARA and the Hague Convention,
a parent who abducts and conceals children for more than one
year will be rewarded for the misconduct by creating eligibil-
ity for an affirmative defense not otherwise available.” Id. at
1363. On the other hand, courts rejecting equitable tolling
have reasoned that there is nothing in the Convention or
ICARA to suggest that the one-year period is a statute of limi-
tations subject to tolling principles. Anderson, 250 F. Supp.
2d at 875. And furthermore, tolling the one-year period would
defeat the purpose of the “well settled” affirmative defense,
to “put some limit on the uprooting of a settled child.” Toren,
26 F. Supp. 2d at 244.

[11] We agree with Furnes and hold that equitable princi-
ples may be applied to toll the one-year period when circum-
stances suggest that the abducting parent took steps to conceal
the whereabouts of the child from the parent seeking return
and such concealment delayed the filing of the petition for
return. While we recognize the serious concerns with uproot-
ing a child who is well settled regardless of whether the
abducting parent hid the child, and that both the Convention
and ICARA are silent on whether equitable tolling applies, we
must give significant consideration to the overarching inten-
tion of the Convention—deterring child abduction. See Young
v. United States, 535 U.S. 43, 49-50 (2002) (“It is hornbook
law that limitations periods are customarily subject to equita-
ble tolling unless tolling would be inconsistent with the text
of the relevant statute. Congress must be presumed to draft
limitations periods in light of this background principle.”)
(internal quotations and citations omitted).

Logic and equity dictate that awarding an abducting parent
an affirmative defense if that parent hides the child from the
parent seeking return would not only encourage child abduc-
tions, but also encourage hiding the child from the parent
seeking return. See Belay, 272 F. Supp. 2d at 561 (“[C]ourts
must be wary of rewarding an abductor for concealing the
 DUARTE v. BARDALES 5799
whereabouts of a child long enough for the child to become
‘well settled’; to reward the abductor as such would be to con-
done the exact behavior the Convention seeks to prevent.”).
Indeed, this concern was reflected in the State Department’s
public notice on the Hague Convention, which states, “If the
alleged wrongdoer concealed the child’s whereabouts from
the custodian necessitating a long search for the child and
thereby delayed the commencement of a return proceeding by
the applicant, it is highly questionable whether the respondent
should be permitted to benefit from such conduct absent
strong countervailing considerations.” Hague International
Child Abduction Convention, 51 Fed. Reg. 10,494, 10,505
(Dep’t of State March 26, 1986) (Pub. Notice).

[12] We therefore hold that equitable tolling is available
under the Hague Convention and ICARA because applying
equitable principles to toll the one-year filing period in cir-
cumstances where the abducting parent hides the child is con-
sistent with the purpose of the Convention to deter child
abduction.

IV.

For the reasons stated above, the district court abused its
discretion in denying Duarte’s Rule 59(e) motion. We also
hold that equitable tolling is available under the Hague Con-
vention and ICARA to toll the one-year filing period. In so
holding, we express no opinion on whether the one-year filing
period should be tolled in this case. We leave that determina-
tion to the district court after conducting further proceedings
and finalizing the record on this issue.

As we read the record, it appears that Duarte has not seen
or visited her children for an extended period of time. Should
Duarte seek temporary visitation rights pending final resolu-
tion of this case, we suggest that the district court take such
action as may be appropriate.
5800 DUARTE v. BARDALES
REVERSED and REMANDED.

BEA, Circuit Judge. dissenting:

It always presents a sad case when children are removed
from their mother.1 It seems an even worse case when the
mother has not had her day in court to testify why the children
should be with her.

But here, in a federal court of appeals, it is still a legal case.
A case must be decided by the rules of our law; we must
apply the correct standard of review and we must remember
the procedural posture of the case. With respect, the majority
fails to do so.

The question in this case: Is a litigant deprived of due pro-
cess by not being heard in court when she has already shown
through her offer of proof she has no relevant evidence to
present? Rather than look at whether the mother should have
been given a hearing, the majority should have focused on
whether the mother’s motion to alter or amend the judgment
under Federal Rule of Civil Procedure 59(e) put forth any evi-
dence that, had it been presented at the hearing, likely would
have changed the hearing’s result. Had the majority done that,
it would have seen that the mother proved herself out of court:
She offered to prove only such evidence as would have lost
for her at the hearing she claims she was unjustly denied.
Absent suffering any prejudice by the denial of a hearing, the
judgment of the trial court should be affirmed. In today’s
argot: “No harm; no foul.” See Fed. R. Civ. P. 61 (a judgment
will not be set aside for harmless error). Accordingly, I must
respectfully dissent.
1
Though it is arguably less sad when the mother’s boyfriend, and father
of her latest child, stands accused of sexually molesting the children, and
the mother fails to deny such charge.
 DUARTE v. BARDALES 5801
I agree with the majority’s holding regarding equitable toll-
ing of the one-year period in which to commence actions to
recover possession of children. Where the abductor hides the
location of the children, and the parent or guardian does not
know where to file a petition under the Hague Convention,
the one-year period should not run.

But those are not the facts of this case. All the evidence
offered to the district court by the father (Bardales) showed
the mother (Duarte) knew perfectly well where the children
were located—indeed, in the same house Duarte and Bardales
had purchased in San Diego and in which they lived with the
children until 2000 when Duarte took the children to Mexico.
The children were in the same public schools which they had
always attended.

I

Article 12 of the Hague Convention provides:

Where a child has been wrongfully removed or
retained in terms of Article 3 and, at the date of the
commencement of the proceedings before the judi-
cial or administrative authority of the Contracting
State where the child is, a period of less than one
year has elapsed from the date of the wrongful
removal or retention, the authority concerned shall
order the return of the child forthwith.

The judicial or administrative authority, even where
the proceedings have been commenced after the
expiration of the period of one year referred to in the
preceding paragraph, shall also order the return of
the child, unless it is demonstrated that the child is
now settled in [his] new environment.

Hague Convention, art. 12 (emphasis added). The United
States adopted the Hague Convention when it enacted the
5802 DUARTE v. BARDALES
International Child Abduction Remedies Act (ICARA). 42
U.S.C. §§ 11601-11610. Under ICARA, “commencement of
proceedings,” as used in article 12 of the Hague Convention,
means the filing of a petition in “any court which has jurisdic-
tion of such action and which is authorized to exercise its
jurisdiction in the place where the child is located at the time
the petition is filed.” 42 U.S.C. § 11603(b) and (f) (emphasis
added).

Duarte filed her petition for the return of her children in the
San Diego Superior Court on June 2, 2005, almost two years
after Bardales took the two youngest children from her on
July 8, 2003. The majority’s discussion of Duarte’s previous
efforts to commence an action is to no avail. Even Duarte
does not contend her filing of a Hague Convention application
with the Protection of Human Rights Department in Tijuana,
Mexico on September 14, 2003, or the subsequent receipt of
her application by the San Diego District Attorney’s Office,
commenced proceedings under article 12. The only case to
address the issue holds that filing an application with an
administrative authority, as opposed to filing a petition with
a court of competent jurisdiction, does not commence pro-
ceedings under ICARA. Wojcik v. Wojcik, 959 F. Supp. 413,
418 (E.D. Mich. 1997).

Where, as here, an ICARA petition is not filed in a court
of competent jurisdiction within one year of a child’s wrong-
ful removal, the respondent can raise the affirmative defense
“that the child is now settled in [his] new environment” and
thus any custody proceeding should take place in the venue
where the children now live. Hague Convention art. 12; 42
U.S.C. § 11603. This is known as the “well-settled” exception
or defense. The respondent must establish the children are
well-settled by a preponderance of the evidence. 42 U.S.C.
§ 11603.

Thus, the merits of this case involve three questions: First,
did Bardales wrongfully remove the children from Duarte’s
 DUARTE v. BARDALES 5803
custody? Yes; this is the “prima facie” case Duarte must
prove, and Bardales concedes this first point.2 If Duarte had
filed her petition within one year after July 8, 2003—the day
Bardales took the children—this would end our inquiry: The
children would be returned to Duarte, and the parties would
have to litigate the custody dispute in Mexico. See Hague
Convention art. 12. Because Duarte did not file her petition
until June 2, 2005, however, we proceed to the second ques-
tion.

Did Bardales hide the whereabouts of the children such that
Duarte did not know where to file her petition under the
Hague Convention? If so, then equitable tolling applies and
Duarte wins. If not, Bardales is entitled to show the children
are well-settled in their new environment and we proceed to
the third and final question. Are the children well-settled in
San Diego?

Both parties in this case filed numerous declarations in
response to the district court’s order to show cause, and were
given the opportunity to brief the issues of whether Bardales
hid the children and whether the children are “well-settled” in
San Diego. The district court, acting as the trier of fact, found
Bardales did not attempt to hide the children’s whereabouts
from Duarte, and the children are well-settled in San Diego.
2
Although Bardales concedes he removed the two youngest children
from Duarte’s custody, he asserts it was necessary for their safety. During
2001, Duarte and the children lived with Duarte’s boyfriend, Oscar Nunes,
and Nunes’s son in Mexico. In March 2002, Bardales and Duarte’s two
oldest daughters came to stay with Bardales in San Diego. They told Bar-
dales that Nunes sexually molested them and they overheard Nunes con-
fess the abuse to Duarte. They have been treated by a psychologist since
that time. Bardales believed Duarte still was living with Nunes in 2003
when this action was filed, and was pregnant with Nunes’s child. Accord-
ing to Bardales, he took the two youngest children because he feared
Nunes would sexually abuse them. Although Duarte claimed she no longer
lived with Nunes, she has not denied that Nunes sexually abused the two
oldest girls, nor that she had Nunes’s child, which means Nunes may be
in regular contact with Duarte and any children living with her.
5804 DUARTE v. BARDALES
The district court declined to give Duarte a hearing because
Duarte’s declarations affirmatively showed she had no per-
sonal knowledge regarding whether the children are well-
settled in San Diego. Therefore, Duarte’s presence at a hear-
ing would be immaterial. The record contains ample evidence
to support the district court’s findings, set forth below.

II

The majority uses an incorrect standard for a Rule 59(e)
motion based on new evidence.

In evaluating the district court’s rulings, the majority cites
the general standard for granting a motion to alter or amend
the judgment under Federal Rule of Civil Procedure 59(e),
without delving further into the Rule’s requirements.

Duarte’s Rule 59(e) motion was based on a claim of newly
discovered evidence. While it is true that newly discovered
evidence is one basis for granting a Rule 59(e) motion, not
just any evidence will do. To prevail on a Rule 59(e) motion
because of newly discovered evidence, the movant must show
the evidence (1) existed at the time of the trial or proceeding
at which the ruling now protested was entered; (2) could not
have been discovered through due diligence; and (3) was of
such magnitude that production of it earlier would have been
likely to change the disposition of the case. Coastal Transfer
Co. v. Toyota Motor Sales, 833 F.2d 208, 211 (9th Cir. 1987);
see also Fed. R. Civ. P. 61 (holding a judgment will not be
set aside for harmless error).

Furthermore, we must remember our standard of review,
which is not de novo. We are to review the denial of a motion
to alter or amend a judgment under Rule 59(e) for abuse of
discretion. See Pasatiempo v. Aizawa, 103 F.3d 796, 801 (9th
Cir. 1996).

The new evidence Duarte presented was evidence that she
could not obtain a certified report from the Mexican Transit
 DUARTE v. BARDALES 5805
Authority showing she reported the theft of her handbag to
them. The new evidence explained why Duarte could not pro-
duce the evidence required by the district court for the contin-
uance of the hearing, but it did nothing to prove that, had she
appeared, Duarte could have presented evidence that would
have been likely to change the outcome of the case.

The district court acknowledged that Duarte’s new evi-
dence was sufficient to show she had reported the theft of her
handbag. Nevertheless, the district court denied Duarte’s
motion to alter or amend the judgment. It did so because even
if Duarte were given a hearing and proved her prima facie
case—that Bardales wrongfully took the children from her
and brought them to the United States—the district court still
would have granted judgment for Bardales on the merits,
because Bardales did not hide the children from Duarte, and
the children are well-settled in their home with Bardales.
Duarte’s evidence that her purse was stolen had nothing to do
with whether Bardales hid the children from her, nor with
whether the children were well-settled. Therefore, it would
not have “been likely to change the disposition of the case.”
Coastal Transfer Co., 833 F.2d at 211. The majority fails to
analyze this point. The majority, it seems, would require dis-
trict courts to grant a Rule 59(e) motion whenever new evi-
dence is presented, no matter how meaningless the evidence
is to the end result of the case.

Not only does the majority apply the wrong standard of
review, it also disregards crucial evidence in the record.

III

The district court had already given Duarte an opportunity
to present evidence on the merits.

The majority asserts the evidence in the record on the issue
of equitable tolling was incomplete and the district court
abused its discretion when it failed to give the parties a hear-
5806 DUARTE v. BARDALES
ing on this issue. See Maj. Op. at 5794-95. The record belies
the majority’s assertion.

On June 29, 2006, the district court issued an order to show
cause “why equitable tolling should, or should not, apply
from the date of the alleged wrongful retention” of the chil-
dren. The court required both parties to present briefing and
evidence on the only issue that was not conceded3 in the case
—whether Bardales hid the children from Duarte, ordering
that:

Plaintiff is directed to provide further details con-
cerning Defendant’s alleged ‘secreting’ of the four
children, including Plaintiff’s attempts at locating
the children. Defendant is directed to provide the
Court with specific information as to [the two oldest
children’s] whereabouts from January 1, 2003 until
June 2, 2005, and [the two youngest children’s]
whereabouts from July 8, 2003 until June 2, 2005.

June 29, 2006 Order to Show Cause.

Duarte filed a 90-page response to the order to show cause
that included various charts showing Duarte’s attempts to find
the children and fifteen declarations by people who helped
Duarte in those attempts. As the majority notes, Duarte gave
the court a list of witnesses and exhibits she intended to call
at the hearing. Maj. Op. at 5794-95. Had Duarte provided
only a list, we might not know what evidence those witnesses
could proffer. But Duarte went further. She filed declarations
from these witnesses stating the substance of their knowledge,
and she presented an offer of proof in the form of a chart, that
describes the substance of each witness’s proposed testimony.
3
Bardales conceded he wrongfully removed the children, and Duarte
conceded she had no evidence as to whether the children were well-settled
in San Diego. Thus, the only possible contested issue in the case was
whether Bardales hid the children from Duarte, thus preventing her from
knowing where to file her petition.
 DUARTE v. BARDALES 5807
Glaringly absent from any of these declarations or descrip-
tions is a statement that anyone looked for the children at the
home which was purchased by Duarte and Bardales, and
where Duarte, Bardales and their children lived together for
years in San Diego, and where Bardales and the children still
reside. Nor is there any evidence that anyone checked with
the local public schools. Additionally, Duarte conceded she
had no evidence regarding whether the children are well-
settled in San Diego.

In contrast, Bardales filed seventeen affidavits in support of
his response to the order to show cause. These declarations
were from: a family member who lives in San Diego; Bar-
dales’s new wife; teachers of all four children along with
school records showing the children consistently were
enrolled in the local public schools near the home Duarte
shared with Bardales; friends of the family; Bardales’s
employer; a neighbor; the family doctor; the children’s psy-
chiatrist; and a declaration from the San Diego Deputy Dis-
trict Attorney that its investigator was able to verify
Bardales’s current address as the home he and Duarte pur-
chased. Bardales’s evidence establishes the following:

Evidence Bardales Did Not Hide the Children

Duarte should have known exactly where to find Bardales
and the children. In 1990, Duarte and Bardales moved from
Mexico to San Diego, where they purchased a home together.
They lived at that address in San Diego for several years, dur-
ing which time they had their four children. As of the date of
the district court hearing, Bardales and the children were still
living in this same home in San Diego.

Furthermore, Duarte was personally served on July 9, 2003
with the San Diego Superior Court order that granted custody
of the children to Bardales and granted a temporary restrain-
ing order against Duarte. Duarte also was served with Bar-
dales’s petition to be awarded custody of the children, and his
5808 DUARTE v. BARDALES
ex parte application for a temporary restraining order. That
petition listed Bardales’s attorney’s address. Duarte could
have served Bardales’s attorney with her petition for the
return of the children, and the San Diego Superior Court
would have had jurisdiction to decide the merits of Duarte’s
petition.

In its order denying the motion to alter or amend the judg-
ment, the district court denied Duarte the benefit of equitable
tolling based, in part, on the fact that Bardales’s petition gave
Duarte actual notice of the whereabouts of the children as of
July 9, 2003. Because Duarte first filed her petition in the San
Diego Superior Court, California law controls the service of
process. Under California law, service of process or pleading
upon a party’s attorney is valid to effect service on the party
the attorney represents. See Reynolds v. Reynolds, 134 P.2d
251, 21 Cal.2d 580, 584 (1943) (“service of papers on the
attorney of record, where service upon the attorney is proper,
binds the client until the attorney is discharged or substituted
out of the case in the manner provided by law”). Because
Duarte had Bardales’s attorney’s address at all times, she did
not need Bardales’s address.

Bardales’s petition for custody of the children also alleged
that the San Diego Superior Court had jurisdiction to deter-
mine the custody dispute. Because Bardales filed his petition
for custody in the San Diego Superior Court, that court
already had personal jurisdiction over Bardales to adjudicate
the custody of the children. Thus, Duarte knew exactly which
court would have jurisdiction to adjudicate her claims. See
Cal. Code Civ. Proc. § 410.50(b) (“Jurisdiction of the court
over the parties and the subject matter of an action continues
throughout subsequent proceedings in the action.”).

Not only were Bardales and the children living in the same
house, but the children were enrolled at all times in the local
public schools near their house, and attended the local Catho-
lic Cathedral.
 DUARTE v. BARDALES 5809
Finally, Duarte conceded she spoke to the children on the
telephone by calling the house in San Diego from the date of
service, July 9, 2003 up until September 23, 2003, when Bar-
dales changed his number. Duarte also telephoned the two
oldest children at their house in San Diego from the time they
came to live with Bardales in 2001. Duarte does not contend
she did not know the location of the two youngest children
from July 8, 2003 until September 23, 2003, nor does she
explain why she did not file her petition before September 23,
2003. This evidence is more than enough to support the dis-
trict court’s finding that Bardales did not hide the children
from Duarte, and thus she is not entitled to equitable tolling
of the one year time period to file the petition.

Evidence the children are well-settled in San Diego

The district court found the children are well-settled in their
new home with Bardales, and Duarte does not dispute this
finding. Although the district court did not give Duarte a hear-
ing on the issue whether the children are well-settled, she
does not raise this issue on appeal, and has waived it. All
Pacific Trading, Inc. v. Vessel M/V Hanjin Yosu, 7 F.3d 1427,
1434 (9th Cir. 1993). Further, Duarte never asserts that if she
were granted a hearing, she would have any relevant evidence
to present on this issue. Furthermore, there was sufficient evi-
dence in the record to support the district court’s finding the
children are well-settled in San Diego.

To determine whether a child is settled in his new environ-
ment, a court may consider any factor relevant to a child’s
connection to his living environment. These factors generally
include: (1) the age of the child; (2) the stability of the child’s
residence in the new environment; (3) whether the child
attends school or day care consistently; (4) whether the child
attends church regularly; (5) the respondent’s employment
and financial stability; (6) whether the child has friends and
relatives in the new area; and (7) the immigration status of the
child and the respondent. Lops v. Lops, 140 F.3d 927, 945-46
5810 DUARTE v. BARDALES
(11th Cir. 1998); Koc v. Koc, 181 F. Supp. 2d 136, 152-54
(E.D.N.Y. 2001).

The two youngest children have lived in San Diego for a
majority of their lives. The family has lived in the same
house, and the children have attended the same schools the
entire time, allowing them to build friendships. The two youn-
gest children have done well in school, as have their older sis-
ters, and their grades have steadily improved each year.

The children have regular contact with extended family,
including aunts, uncles, cousins, and their paternal grandpar-
ents who live with them. The two youngest children are close
to their older sisters, who are themselves settled in San Diego
and who are staying in San Diego because Duarte voluntarily
dismissed her petition as to these two children.

Bardales is financially stable; he has held the same job
since April 2002 and received a good recommendation from
his manager. Bardales and his children all attend the local
Catholic Cathedral. Medical records demonstrate the children
received regular vaccinations and medical care. The children
are all U.S. citizens, and Bardales is a legal permanent resi-
dent. Finally, the San Diego Superior Court’s custody order
awarded sole custody to Bardales.

The majority overlooks the filings by the parties in
response to the district court’s order to show cause. Duarte
did not set forth any further evidence she would be able to
produce at a hearing on the sole relevant issues: (1) equitable
tolling and (2) whether the children are well-settled. As the
district court found, Bardales did not hide the children from
Duarte; they were living at the same house where the family
had always lived. Nor was there any showing either Duarte or
any of her witnesses have proffered any evidence on the issue
whether the children are well-settled in San Diego. Thus, any
further hearing will be a waste of everyone’s time and money.
The district court did not abuse its discretion in failing to con-
 DUARTE v. BARDALES 5811
duct a hearing at which no further relevant evidence would be
presented. The district court already had all the relevant evi-
dence before it that the parties had to offer.

Finally, the majority implies the district court might have
the power to set aside the state court’s custody order and
allow Duarte to visit the children. Federal courts do not have
jurisdiction to overrule state custody orders. For the district
court to attempt to overrule the state court’s custody order
would raise issues under claim and issue preclusion, not to
mention the full faith and credit clause, 28 U.S.C. § 1738.4
Duarte’s remedy lies in the California Court of Appeal, not
the federal district court, if she wants the custody order modi-
fied.

Because it cannot be said that the district court abused its
discretion in denying Duarte a hearing, I respectfully dissent.

4
Under 28 U.S.C. § 1738, “[f]ederal courts must give the same preclu-
sive effect to state court judgments that those judgments would be given
in that state’s own courts.” Clements v. Airport Auth. of Washoe County,
69 F.3d 321, 326 (9th Cir. 1995); see also Allen v. McCurry, 449 U.S. 90,
96 (1980) (“Congress has specifically required all federal courts to give
preclusive effect to state-court judgments whenever the courts of the State
from which the judgments emerged would do so”).