United States District Court, D. Maryland
MEMORANDUM OPINION AND ORDER
DEBORAH K. CHASANOW United States District Judge.
November 15, 2016, Petitioner Jhenny Elizabeth Gamboa
(“Petitioner”) filed a verified petition for
return of child to Canada. (ECF No. 1). The evidentiary
hearing in this matter is scheduled for December 14, 2016,
and Petitioner has filed a motion to appear at the
evidentiary hearing by contemporaneous transmission. (ECF No.
12). Respondent Todd Patrick Murphy
(“Respondent”) filed a response in opposition to
the motion for appearance by contemporaneous transmission
(ECF No. 14), and Petitioner replied (ECF No. 18). For the
following reasons, the motion for appearance by
contemporaneous transmission will be granted.
forth in the petition, Petitioner is a citizen of Colombia
currently residing in Ontario, Canada. (ECF No. 1 ¶ 8).
Petitioner brought this action under the Hague Convention to
secure the return of her minor child J.A., a Canadian
citizen, to Canada, his alleged habitual residence.
(Id. ¶¶ 32-37). Petitioner alleges that
Respondent brought J.A. to the United States on April 23,
2016, with the agreement that he would return J.A. to Canada
on June 30, 2016, but that Respondent has wrongfully retained
J.A. in the United States since that time. (Id.
¶¶ 25-31, 38).
present motion, Petitioner argues that she is not legally or
financially able to travel to the United States to present
live testimony at the evidentiary hearing. Petitioner avers
that: (1) having been required to turn in her Colombian
passport to the Canadian government when she applied for
refugee status, she does not have valid travel documents that
would allow her to enter the United States; (2) she is
ineligible for the visa waiver program; (3) she could not
apply for humanitarian parole to enter the United States in
time for the expedited hearing, and that even if her
application were granted, she would not be permitted to
re-enter Canada following these proceedings; (4) her pending
immigration application in Canada does not permit her to
travel; and (5) she is financially unable to travel to the
United States. (ECF No. 12 ¶¶ 9-14). Respondent
contends that if Petitioner had applied for humanitarian
parole at some point in the past six years, or after filing
for custody in Ontario on September 26, 2016, there would
have been sufficient time for her application to be granted
in time for her to appear at the evidentiary hearing, and
that he will be severely prejudiced if Petitioner is
permitted to appear by videoconference at the hearing. (ECF
No. 14 ¶¶ 12-15, 26-27).
Rule of Civil Procedure 43 governs the taking of testimony at
trial. That rule expressly provides for the possibility of
videoconference testimony, stating that “[f]or good
cause in compelling circumstances and with appropriate
safeguards, the court may permit testimony in open court by
contemporaneous transmission from a different
location.” Fed.R.Civ.P. 43(a). Moreover, the Hague
Convention directs that wrongful retention cases will be
determined expeditiously. Hague Convention, art. 11.
“Because of this directive, Courts have adopted
flexible procedural approaches to ensure that cases are
handled expeditiously, including allowing remote
testimony.” Alcala v. Hernandez, No.
4:14-CV-04176-RBH, 2015 WL 1893291, at *1 (D.S.C. Apr. 27,
have permitted remote testimony in Hague Convention cases
where the witnesses were unable to obtain visas to enter the
United States. See, e.g., Mendoza v.
Pascual, No. CV 615-40, 2015 U.S.Dist.LEXIS 58806, at
*4-5 (S.D.Ga. May 5, 2015) (holding that petitioner's
“diligent efforts and proven inability to obtain a visa
or other official permission to enter the United States
satisfies the ‘good cause' standard”);
Alcala, 2015 WL 1893291, at *2 (holding that
inability to obtain a visa and financial inability to travel
satisfied the Rule 43 standard and allowing remote
testimony); Haimdas v. Haimdas, 720 F.Supp.2d 183,
187 (E.D.N.Y. 2010) (“As authorized by Rule 43(a) . .
., petitioner, who had been unable to obtain a visa to travel
to this country, testified via a live video link from London,
England.”), aff'd 401 F.App'x 567
(2d Cir. 2010); Matovski v. Matovski, No.
06-CIV-4259, 2007 WL 1575253, at *3 (S.D.N.Y. May 31, 2007)
(“In the limited context of an ICARA case and on these
facts, I consider the father's inability to obtain a
visa, his limited financial resources and his physical
distance . . . to satisfy the standard of ‘for good
cause shown in compelling circumstances[.]'”);
see also El-Hadad v. United Arab Emirates, 496 F.3d
658, 668-69 (D.C. Cir. 2007) (affirming trial court's
permission for remote testimony due to showing that the party
had been denied a visa in breach of contract case). Moreover,
“[t]he cost of international travel can provide good
cause for contemporaneous transmission of testimony.”
Lopez v. NTI, LLC, 748 F.Supp.2d 471, 480 (D.Md.
2010) (citing Dagen v. CFC Grp. Holdings, No. 00
Civ. 5682, 2003 WL 22533425, at *2 (S.D.N.Y. Nov. 7, 2003)).
testimony is necessary to prove her prima facie case
at the evidentiary hearing, but Petitioner is legally and
financially unable to travel to the United States.
Respondent's argument that Petitioner should have applied
for humanitarian parole to permit her to travel for this
hearing is unpersuasive. The parties agree that any such
application would generally be adjudicated within three
months. (ECF Nos. 14 ¶ 15; 18 ¶ 13). Even if
Petitioner's application were granted, then, it would not
be granted in time to allow the expeditious hearing of this
matter. Moreover, even if Petitioner were granted parole to
enter the United States, she would not be able to re-enter
Canada following these proceedings given her current
immigration status. Therefore, given that her parental rights
are at stake, Petitioner's inability to travel to the
United States satisfies the “good cause in compelling
circumstances” required for the court to permit her
testimony by videoconference under Fed.R.Civ.P. 43.
has also shown that appropriate safeguards will be in place
for her remote testimony. See Fed.R.Civ.P. 43(a).
Such safeguards should ensure accurate identification of the
witness, protect against influence by persons present with
the witness, and assure accurate transmission. Fed.R.Civ.P.
43 advisory committee's note to 1996 amendment. Examples
of procedures used to satisfy the rule include the swearing
in of the witness remotely, ensuring that the witness is
alone and has been provided with documentary evidence in
advance, requiring the movant to pay the associated costs,
and requiring that the means of providing remote testimony be
tested in advance. Alcala, 2015 WL 1893291, at *2-3.
Petitioner has proposed that: her counsel will work with the
court's technology department to facilitate the remote
testimony and will troubleshoot technical problems in advance
of the hearing; Petitioner will testify from her local
counsel's office in a closed room with an interpreter; a
duly qualified person will be present to provide any
necessary oath in Canada, in addition to the courtroom clerk
who will read the oath to the interpreter and Petitioner; all
documentary evidence will be marked prior to the hearing and
produced according to the court's scheduling order;
Petitioner will pay all costs associated with the remote
testimony; and Petitioner will provide a copy of her
identification to the court to verify her identify prior to
her testimony. (ECF Nos. 12 ¶ 21; 18 ¶ 8). These
proposals are appropriate and sufficient under Fed.R.Civ.P.
it is this 5th day of December, 2016, by the
United States District Court for the District of Maryland,
motion for appearance at evidentiary hearing by
contemporaneous transmission filed by Petitioner Jhenny
Elizabeth Gamboa (ECF No. 12) BE, and the same hereby IS,
Petitioner Jhenny Elizabeth Gamboa is permitted to appear and
to give testimony by contemporaneous video transmission at
the evidentiary hearing in this case;
Petitioner Jhenny Elizabeth Gamboa, through her counsel, will
take all necessary steps to ensure proper functioning of
technological equipment used for contemporaneous video
transmission at the evidentiary hearing;
Petitioner Jhenny Elizabeth Gamboa and Respondent Todd
Patrick Murphy, through counsel, will exchange all
documentary evidence to be used on direct and cross
examination of Petitioner pursuant to the scheduling order
(ECF No. 9);
Petitioner Jhenny Elizabeth Gamboa, through her counsel,
shall make arrangements to render her testimony alone (other