Incorrectly issued warrant - remedies?

[Hermano]

What is the name of your state? Louisiana

I am trying to sort out the legal issues of a federal bench warrant that was issued for my sister, which I believe was issued incorrectly and used maliciously by an ex-husband (attorney). Any insights would be greatly appreciated.

My sister has legal custody of her children, who, while living in Mexico, were abducted by the ex-husband and taken to Louisiana. So she went to Louisiana under a Hague Convention action, and the children were given back to her by state court order, pending the trial. The ex-husband was granted a motion to remove the case to federal court, however, before ANY action was taken in federal court, my sister took her kids back to Mexico, planning to drop the Hague action. She was unaware at the time that the State order giving her the kids also had a provision to remain in the jurisdiction of the court pending trial. (She never actually saw the order.) This was, however, for the scheduled state trial that never happened and apparently was never going to.

The ex-husband somehow got the federal magistrate judge, after she was back in Mexico, to issue a "contempt of court" bench warrant, which cited a Louisiana statute regarding Violation of Visitation Order (which didn't even exist -- as there has never been a Visitation Order granted), then he went to Mexico and under false charges (drugs, child abuse) got Mexican authorities to have her arrested and turned over to U.S. federal marshals, with the ex-husband standing right there orchestrating everything and waving the arrest warrant. The marshals took her to Houston, where she briefly spent time in a federal prison before being turned over to my custody. Almost everybody who has heard about this can't believe that a civil case had these kinds of consequences.

What makes this matter worse is that the same magistrate judge is hearing the Hague trial, which was then forced upon my sister by the defendant husband. (He will probably go down in flames, btw. It was a stupid move on his part.) So my sister's attorneys are not anxious to go after this judge at the moment.

I am wondering what authority federal magistrate judges have to enforce state civil orders, and what remedies she might have against a bogus "crime" (i.e. violation of non-existent visitation order) that caused her much suffering and physical trauma. Any citations would be much appreciated.

[justalayman]

and what is her attorney saying about all of this?

you did say there was an order she did not leave the country, right? Then you go on and claim there wasn't. Which is it?

She was unaware at the time that the State order giving her the kids also had a provision to remain in the jurisdiction of the court pending trial.

Your claim of no visitation order is irrelevent. She violated a courts order to not leave the jurisdiction of the courts has jurisdiction at the moment and she did. The order may have been written without cause but that does not invalidate the order. She would need to contest the order, not simply ignore it.

So, you want to know how many things she can do wrong and not be held responsible for them? Apparently very few in her case.

I'm just not sure why the state was involved to begin with.

On top of everything else, you do not provide any info as to how or when she ended up in Mexico and he in Loiusianna and who gave her custody of the child inititally, since you do claim she had legal custody of the child.

You also do not state that if the order of custody was entered in this country, if there were restrictions on any moves of residence by either party (which there typically is)

basically, your story is all mixed up and missing a lot if details.

[Hermano]

Originally Posted by justalayman

and what is her attorney saying about all of this?

you did say there was an order she did not leave the country, right? Then you go on and claim there wasn't. Which is it?

Her attorney is a family law attorney, and not focused on this issue.
Her Hague motion was originally filed in STATE court, as it concerned family/custody issues. The STATE court judge, along with giving her back the children, issued an order requiring her to remain in the jurisdiction (although she didn't know about this) for the trial. She left with the kids after the husband was granted a motion to have the case moved to federal court. Are we clear so far? There is no dispute that she violated a STATE court order. However, the statutory consequences for this are fairly minor compared to what happened to her, and the order statutorily expired before any ruling was ever issued. Further, as the plaintiff, she had no reason to think that she couldn't just drop the state action.

Okay, now the ex-husband appears in FEDERAL court AFTER my sister is in Mexico, before any federal trial is even scheduled, and gets the judge to issue a FEDERAL bench warrant. The warrant cites "contempt of court." However, my sister was never in federal court, and violated no federal court orders. The warrant references a "violation of visitation order" provision in the State Statutes. There is no visitation order in existence.

I am merely asking:
1) Is it proper for a federal judge to enforce state laws like this? There were no federal laws to enforce, nor were any federal laws broken.
2) What prohibits a judge from fabricating a civil violation? He just pulled an irrelevant statute out of thin air and put it on the warrant.

As far as background, she and her husband had moved from the US to Mexico with the children, where they were later divorced and she was awarded full custody. The husband later filed for full custody in Mexico, but when that hearing started going down the tubes, he abducted the children and fled to the US. There is an arrest warrant for him in Mexico.

[fredflintstone]

First I want to appoligise for those who want to critisize instead of offer assistance. That is why we come here in the first place. So the help alot of them offer is no help at all. I will try to read thru the lines and see if this my assist you in your research. I am not sure which state you need information in. But there is the code of ethics in place in all 50 states. So try Googleing attorney code of ethics in which ever state it is you need or both. This will apply to the current attorney which seems disinterested and judges. Also you my try googling judical misconduct with the state.

[justalayman]

First, Fred, you have no reason to apoligize for me. I would work on that for yourself. I have nothing to apologize for.



Your sister got it into a state court, that court placed an order, which you sister ignored. It is up to her or her attorney to read that the court orders so ignorance of the order is not excuse.

on top of that, you keep claiming she did not violate an order and then you turn around and say the violation of an order in not in question.

Even though the case was removed to a federal court, the orders in place do not magically disappear. The orders in place stay in place until there is an order ordering the orders to be modified.

The STATE court judge, along with giving her back the children, issued an order requiring her to remain in the jurisdiction (although she didn't know about this) for the trial

There is no dispute that she violated a STATE court order.

and the order statutorily expired before any ruling was ever issued.

Please provide anything to show that that courts orders would simply die upon some statutory mandated time.

Further, as the plaintiff, she had no reason to think that she couldn't just drop the state action.

there is a huge difference between dropping an action, which actually takes some action and running out of the country in an attempt to flee the orders of the court. That is how the courts see it whether she claims it as such or not.

1) Is it proper for a federal judge to enforce state laws like this? There were no federal laws to enforce, nor were any federal laws broken.

the federal court, which now has jurisdiction, was enforcing the orders from the state court. The states OR federal district court has jurisdiction over a Hague Convention Action. It started in the state court and was removed to a federal court but it is the same lawsuit. It does not become a new suit. There is nothing wrong with the feds taking action on the states orders since they were given jurisdiction over the case when he filed for it and that motion was granted.

2) What prohibits a judge from fabricating a civil violation? He just pulled an irrelevant statute out of thin air and put it on the warrant.

If you think it is wrong, then file the appropriate paperwork to contest this. You do not get arrested for civil violations. That is part of what makes it a civil violation. She was arrested for a criminal act, which can result from a civil violation.

from your first post:

then he went to Mexico and under false charges (drugs, child abuse) got Mexican authorities to have her arrested and turned over to U.S. federal marshals,

why would the Mexicans turn her over to the US? The charges would have to be placed in the US for this to happen. Even then, there would be an extradition hearing where she would defend herself. Your rendition of the story just does not make logical sense.

On top of this, if she was turned over to the US authorities, how did she get out of jail? Unless the charges were dropped (in which case this would not have happened:

before being turned over to my custody

) so apparently there are still federal drug charges outstanding against her. She is going to have to take care of that before she serioulsy considers winning any custody battle. If the courts believe she is going to prison, hubby is going to end up with the children.

You are still all over the map on this. You want to argue jurisdiction but cannot since jurisdiction was at one court and it was removed to another court. You want to argue the order was somehow modified either due to a statutory limitation or by virtue of the removal of the jurisdiction to another court. Both arguments are incorrect.

and you still apparently are ignoring the big criminal charges she is facing, or did those charges magically disappear?

and once jurisdiction is placed in the federal courts, actions can take place prior to a trial. What makes you think a court cannot act until a trial takes place?

1) Is it proper for a federal judge to enforce state laws like this? There were no federal laws to enforce, nor were any federal laws broken.

actually, SHE made it a federal case, no, actually an international case when she filed the Hague action. I would suggest they were enforcing the orders of the Hague action case which they have every right to do so.

2) What prohibits a judge from fabricating a civil violation? He just pulled an irrelevant statute out of thin air and put it on the warrant.

Nothing but honesty, integrity, and respect for the judicial system. It may happen but I would not charge a judge with this unless you have a very good bunch of evidence to support your allegation. As always, she will get to defend herself in court.

My question is: why is she using a family law attorney? It is apparent she needs an attorney for her criminal defense as well as an attorney versed in international law for the Hague action. What is a family law attorney going to do for her. You claim she already has been awarded custody by another court. Why is she seeking to rehash the issue?

[Hermano]

justalayman,

According to La CCP 3604, a temporary restraining order (which would have been the order issued by the state judge) expires after 10 days. So, yes, orders in place DO magically disappear. Your rant is completely incoherent. ( e.g. I don't know where you come up with the wild notion that "there are apparently federal drug charges outstanding against her." There are no criminal charges at all.) Please go away and troll on someone else's thread. You are not helpful here.

[justalayman]

Originally Posted by Hermano

justalayman,

According to La CCP 3604, a temporary restraining order (which would have been the order issued by the state judge) expires after 10 days. So, yes, orders in place DO magically disappear. Your rant is completely incoherent. ( e.g. I don't know where you come up with the wild notion that "there are apparently federal drug charges outstanding against her." There are no criminal charges at all.) Please go away and troll on someone else's thread. You are not helpful here.

Art. 3604. Form, contents, and duration of restraining order

A. A temporary restraining order shall be endorsed with the date and hour of issuance; shall be filed in the clerk's office and entered of record; shall state why the order was granted without notice and hearing; and shall expire by its terms within such time after entry, not to exceed ten days, as the court prescribes. A restraining order, for good cause shown, and at any time before its expiration, may be extended by the court for one or more periods not exceeding ten days each. The party against whom the order is directed may consent that it be extended for a longer period. The reasons for each extension shall be entered of record.

B. Nevertheless, a temporary restraining order issued in conjunction with a rule to show cause for a preliminary injunction prohibiting a spouse from:

(1) Disposing of or encumbering community property;

(2) Harming the other spouse or a child; or

(3) Removing a child from the jurisdiction of the court, in a suit for divorce shall remain in force until a hearing is held on the rule for the preliminary injunction.

C. A temporary restraining order issued in conjunction with a rule to show cause for a protective order filed in an action pursuant to the Protection from Family Violence Act, R.S. 46:2121 et seq., and pursuant to the Protection From Dating Violence Act, R.S. 46:2151, shall remain in force until a hearing is held on the rule for the protective order or for thirty days, whichever occurs first. If the initial rule to show cause is heard by a hearing officer, the temporary restraining order shall remain in force for fifteen days after the hearing or until the judge signs the protective order, whichever occurs last. At any time before the expiration of a temporary restraining order issued pursuant to this Paragraph, it may be extended by the court for a period not exceeding thirty days.

Acts 1983, No. 651, §1; Acts 1990, No. 361, §1, eff. Jan. 1, 1991; Acts 1999, No. 1336, §2; Acts 2003, No. 750, §1.

You might want to read what you are quoting. Notice the exceptions in there where it can be extended AND the exceptions where it is indefinate under certain circumstances?

apparenltly you were not aware of those sections of ccp 3604.

so NO, they do not magically disappear.





and to drug charges?

then he went to Mexico and under false charges (drugs, child abuse) got Mexican authorities to have her arrested and turned over to U.S. federal marshals

those are your words, not mine.

and since she sat in prison (prison, not jail. quite interesting), I believe there is much you have failed to reveal or accept. Now you say there are no criminal charges yet she was released into your custody? Why would that take place if there were no charges pending?

Me thinks you are full of crap Hermano.

[Hermano]

justalayman,

"Please go away." Are you unable to follow even the simplest of requests?

[justalayman]

are you the new owner of the forum?

[acmb05]

Originally Posted by Hermano

justalayman,

"Please go away." Are you unable to follow even the simplest of requests?

Ignorance of the order is no excuse. Not only did your sister leave the jurisdiction of the court, she left the county, state, Country.

Whether the drug charges are trumped up or not they are still pending charges until she goes to court and wins that case..

Bottom line, your sister should have stayed put in Louisiana when she got the kids back.

[acmb05]

Originally Posted by Hermano

What is the name of your state? Louisiana




What makes this matter worse is that the same magistrate judge is hearing the Hague trial, which was then forced upon my sister by the defendant husband. (He will probably go down in flames, btw. It was a stupid move on his part.) So my sister's attorneys are not anxious to go after this judge at the moment.

No your sister started this he just motioned for it to be transferred to Federal Court. He did not force anything on her he just had it moved to a different court.

Originally Posted by Hermano

I am wondering what authority federal magistrate judges have to enforce state civil orders,

They have all the authority to enforce a court order once the case was transferred to Federal Court.

Originally Posted by Hermano

and what remedies she might have against a bogus "crime" (i.e. violation of non-existent visitation order) that caused her much suffering and physical trauma. Any citations would be much appreciated.

Since your sister obviously did not read the order from the Louisiana courts she may have also missed that the judge gave the dad visitation while this was going thru the courts. You may want to have her read that order thoroughly to make sure dad was not given visitation time in Louisiana.

[Zigner]

Just and ACMB -

How DARE you?!? I mean, offering sound, correct legal advice based on the information presented...what were you THINKING?!?

[justalayman]

I know. We are supposed to be handing out warm fuzzies.[url]http://homepage.mac.com/venitar/furreything2.jpg[/url] Get out the wet noodle.

Ooh. that sounds like fun

[Hermano]

Originally Posted by acmb05

No your sister started this he just motioned for it to be transferred to Federal Court. He did not force anything on her he just had it moved to a different court.

After my sister's case was moved to Federal Court, she made a formal motion as the plaintiff to withdraw the Hague action , and have substantive custody hearings heard in the State Court (which has sole jurisdiction on custody issues), withdrawal of which the ex-husband vigorously opposed. [You will not find much case law where a plaintiff is forced against their will to proceed with a case against a defendant, yet it happened in this case.] Certainly the judge had never heard of it, but he STILL granted the ex-husband's motion to have the case heard, even though the net result, if the husband wins, will be the right to have the custody case heard in state court, a result my sister had already agreed to. BTW, the case has just been heard, and the husband was caught lying on the stand to such an extent that the judge turned red with anger and had to leave the court to regain his composure. No ruling yet, though.

Originally Posted by acmb05

Since your sister obviously did not read the order from the Louisiana courts she may have also missed that the judge gave the dad visitation while this was going thru the courts. You may want to have her read that order thoroughly to make sure dad was not given visitation time in Louisiana.

We certainly have read the order at this point, and everyone is quite clear that there was no visitation mentioned anywhere.

[Hermano]

Originally Posted by acmb05

Whether the drug charges are trumped up or not they are still pending charges until she goes to court and wins that case..

Bottom line, your sister should have stayed put in Louisiana when she got the kids back.

1. There are NO drug charges. These were false allegations that the ex-husband made to Mexican authorities, and they concluded that they were baseless. Can we get over this please? The Mexican authorities simply turned my sister over to the U.S. Marshals at the US embassy, just out of "international goodwill" I guess. They told my sister that she was free to return to Mexico when she got everything sorted out in the U.S., or even the next day. There are no drug charges in the U.S. At this point, there are no charges of ANY KIND against her.

2. Yes, she SHOULD have stayed put in Louisiana, but she didn't. However, she had no reason to expect the consequences that occurred. If you knowingly cross the street illegally, you do not expect to land in a federal penitentiary.