We have left Costa Rica, but Costa Rica has not left us. We have learned
much about International Family Law from a Costa Rican perspective but
have reinforced the universality that is family law across much of the globe.
Our trial is not over, it continues on Wednesday. But we move from extensive
travel mode into
high tech mode, which is the much more the norm for the way we have tried Hague Convention
cases. Instead of appearing in person, we will appear, testify and argue
via video conferencing from our respective court houses. This is not the
waive of the future. This is how much of international litigation is already done.
The Costa Rican legal system is quite different from ours. The Judge is
far from a passive receiver of information; the Judge is the interrogator
of the witness. The Judge is also the reporter. While counsel does get
to subsequently question the witness, the questions are extremely direct
and severely short. Directness certainly has its virtue. Some would argue
that it avoids artifice. But I find that it is the indirect that teases
out the nuance. And nuance is truth found in between the obvious.
The American system places the attorney in a very different role. The attorney
is a word smith, a rhetorical artisan, a master chess player crafting
his moves by skillful questions.
The Costa Rican system is much more blunt. Nuance yeilds to the essential.
I like our Judge. She is quite direct and quite adept at ferreting out
baloney from the opposing side. She seems quite well versed in the Hague
Convention and Costa Rica's agreement to abide by it.
She is fairly constrained by Costa Rica's placement of its national
law on par with its treaty obligations, which means putting a "best
interest" test on equal footing with the jurisdictional analysis
that is the essence if not the entirety of the Hague Convention. The problem
with inserting a best interest analysis to the Convention's application
is that it runs wholly afoul with what the Convention was designed to
avoid: home cooking based upon "my country is better than yours"
bias. Trully, if a country insists upon a best interest test, they ought
not sign on to the Convention. To require a best interest test is completely
contrary to International Family Law.
Still, our Judge is managing the best interest information quite well.
In our case, there is ample evidence that the opposing party, the mother
who abducted her children to Costa Rica, has behaved in ways that are
antithetical to the children's best interest, and continues to this day.
So, our saga continues. With timely execution, closing arguments (they
call them conclusions) shall be given on Wednesday after the last witness
has been interrogated. Her Honor will consider the case for a few days
and render her verdict some time next week.
With luck, the children will enjoy the summer of 2012 back home in their
beds, in their rooms, in their house, in the community in which they have
spent their entire lives.
That's what I'm fighting for.