Friday, September 15, 2017
Gonzalez v Batres, 2015 WL 12819198 (D. New Mexico, 2015) [Mexico] [Federal & State Judicial Remedies] [Judicial Notice]
In Gonzalez v Batres, 2015 WL 12819198 (D. New Mexico, 2015) the Petitioner , citing to Article 14 of the Hague Convention and Federal Rule of Civil Procedure 44.1, asked that the Court take judicial notice of Articles 278 through 280, Articles 406 through 419, Articles 438 through 439, and Articles 441 through 443 of the Civil Code for the State of Durango, Mexico, all of which govern the Mexican legal concept of patria potestas. She also asked that the Court “take judicial notice” of her expert report, including her expert witness’s conclusions of law; and that the Court “take judicial notice” of several specific conclusions of law regarding the nature of patria potestas and the rights afforded to her by that concept.
The district court explained that Petitioner misunderstood the purposes of these authorities. Rule 44.1 simply allows the Court to “consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence,” when determining foreign law. FED. R. CIV. P. 44.1. Rather than “imposing an obligation on the court to take „judicial notice’ of foreign law,” the Rule “provides flexible procedures for presenting and utilizing material on issues of foreign law.” Likewise, Article 14 simply allows the Court to “take notice directly of the law of, and of judicial or administrative decisions ... in the State of the habitual residence of the child.” Hague Convention on the Civil Aspects of International Child Abduction, art. 14, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89. Both authorities allow the Court to consider foreign legal codes and judicial or administrative decisions, as well as expert testimony, in making determinations of foreign law. However, neither authority provides any basis for simply adopting a party’s conclusions regarding foreign law as the Court’s own. It therefore, granted the motion only insofar as Petitioner sought to have the Court (1) take judicial notice of the portions of the Durango Civil Code that she provided to the Court, pursuant to Article 14 of the Hague Convention; and (2) consider the submitted portions of the Durango Civil Code and the testimony and report of Petitioner’s expert witness, pursuant to Rule 44.1, in reaching any relevant determinations of Mexican law.