Petition for Writ of Certiorari — Marlon Abraham Rosasen, Petitioner v. Thea Marie Rosasen

Supreme Court briefAug 18, 2023

Ask Donna

What actually matters in this document.

Text

FILED

AUG 18 2023

1i.'; •■;•' >'j :■! rJTTrr^BI&

.-I

'/f-i i-jl-jn VL:- t!

L LU:Li;i;r'lr

No. 22-A-1078

IN THE

SUPREME COURT OF THE UNITED STATES

MARLON ABRAHAM ROSASEN,

Petitioner,

THEA MARIE ROSASEN,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

j?-

■

MARLON ABRAHAM ROSASEN

Pro Se

19453 Pacific Coast Hwy

Malibu, CA 90265

(323) 561-4001

Rosasen.ma@icloud.com

QUESTIONS PRESENTED

According to the International Child Abduction

Remedies Act (“ICARA”) 42 U.S.C. §§ 11601-11610

(2000) and the Hague Convention on the Civil

Aspects of International Child Abduction

(“Convention”), a parent may file a petition for

return of their Child to the child’s country of

habitual residence, if it appears that the child has

been wrongfully abducted or retained.

First Question presented: Was the order to vacate

trial ex-parte in chambers, revoking granted oral

arguments and cross examination, Constitutional.

See Gitter v. Gitter, 396 F. 3d 124, 131 (2d Cir. 2005)

Monasky v. Taglieri, 140 S. Ct. 719, 723 (2020).

Troxel v. Granville, U.S. 570 (2000).

Second Question presented: When the ameliorative

measures imposed are ignored, and habitual

residence since was found by the State Department

to be the United States, what other remedies exists

to restore fundamental rights and end emotional

abuse, but to invoke the Convention’s Article 18,

return remedy. See Washington v. Glucksberg, 521

U.S. 702 (1997), held that the Constitution, and

specifically the Due Process Clause of the

Fourteenth Amendment protects the fundamental

right of parents to direct the care, upbringing, and

education of their children, See also Chafin v.

Chafin, 568 U.S. 165, 179 (2013), and Mozes v.

Mozes, 239 F.3d 1067, 1078 (9th Cir. 2001)). See

State Departments views. (App. D).

RELATED PROCEEDINGS

(A) Central District Court of California, (CD. Cal)

United States v. Marlon Abraham Rosasen

CD. Cal 16-cr-00502-JFW, July 18, 2016

(B)Los Angeles, Superior Court of California

Marlon Abraham Rosasen v. Thea Marie Rosasen

19STFL11397, Sept. 23, 2019

Thea Marie Rosasen v. Marlon Abraham Rosasen

CD. Cal 19-cv-10742-JFW, Dec. 19, 2019

(D) Los Angeles, Superior Court of California

Thea Marie Rosasen v. Marlon Abraham Rosasen

20STHC1000, Jan. 8, 2020

(E) Central District Court of California,

Marlon Abraham Rosasen v. Thea Marie Rosasen

CD.Cal 20-CV-01140, Feb. 4, 2020.

111

TABLE OF CONTENTS

Pages

QUESTION PRESENTED

RELATED PROCEEDINGS

TABLE OF CONTENTS

111

TABLE OF AUTHORITIES

CONSTITUTIONAL & STATUTORY

PROVISIONS.........................................

1V-V1

.Vll-Vll

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

STATEMENT ON JURISDICTION

STATEMENT OF THE CASE

5-19

REASONS FOR GRANTING THE WRIT

The below ruling causes a Circuit split on how to

determine habitual residence, ameliorative

measures and what the Due Process Clause entails

under the Constitution pursuant to the Hague

Convention on the Civil Aspects of International

Child Abduction and the International Child

Abduction Remedies Act, (42 U.S.C. 11601-11610

(2001))

20-27

CONCLUSION

TABLE OF AUTHORITIES

Cases:

Page(s)

Abbott v. Abbott,

560 U.S. 1 (2010)

Baran u. Beaty,

526 F.3d 1340 (11th Cir. 2008)

24,26

Baxter v. Baxter,

423 F.3d 363, 371 (3rd Cir. 2005)

Bekier v. Bekier,

248 F.3d 1051 (2001)

Blondin v. Dubois,

189 F.3d 240 (2d Cir. 1999)

23,24,26, 27

Broidy Capital Management u. State Qatar,

982 F.3d 582, (9th Cir. 2020)...........................

Chafin v. Chafin,

568 U.S. 165 (2013)

1,5,13

Danaipour v. McLarey,

386 F.3d 289 (1st Cir. 2004)

24,25,27

Friedrich v. Friedrich, 78 F.3d 1060, 1070 (6th Cir.

1996)................................................................................ 7

Gaudin v. Remis,

415 F.3d 1028 (9th Cir. 2005)

Gitter u. Gitter,

396 F. 3d 124, 131 (2d Cir. 2005)

In re Custody of A.T.,

451 P.3d 1132 (Wash. Ct. App. 2019)

In re Marriage of Bates,

212 Ill. 2d 489 (Ill. 2004...)

M.V.U., In re,

No. 1-19-1762, 2020,(111. App. Ct. Dec. 3, 2020)

In Parham v. J.R.

442 U.S. 584(1979)

Marriage of Forrest & Eaddy, In re

51 Cal. Rptr. 3d 172 (Cal. Ct. App. 2006)

March v. Levine,

249 F. 3d 462, 474 (6th Cir. 2001)

1,22

Maurizio R. v. L.C.,

135 Cal. Rptr. 3d 93 (Cal. Ct. App. 2011)

Medellin v. Texas,

552 U.S. 491 (2008)

Monasky v. Taglieri,

140 S. Ct. 719, 723 (2020)

1,26

Mozes v. Mozes,

239 F.3d 1067, 1078, (9th Cir. 2001)

Oliver A. v. Diana Pina B.,

161 A.D.3d 485 (N.Y. App. Div. 2017)

Pierce v. Society of Sisters,

268 U.S. 510 (1925)......... .

1,23,27

Risk v. Kingdom of Norway,

707 F. Supp. 1159 (N.D. Cal. 1989)

7,19

Rosasen et al. v. Kingdom of Norway et al,

2:21-cv-06811-JWH (SP) (2022).................. 7,14,17,18

Simcox v. Simcox,

511 F.3d 594, 607 (6th Cir. 2007)

19,21,26

Stanley v. Illinois,

405 U.S. 645, 651.

Troxel v. Granville,

530 U.S. 57 (2000).

1,14, 20, 22, 24,27

Turner v. Frowein,

752 A.2d 955, 972, (Comm. 2000)

Van Sande v. Van Sande,

431, F.3d 567, 572(7th Cir. 2005)

21,28

Washington v. Glucksberg,

521 U.S. 702 (1997)............

14,24

West v. Dobrev,

735 F. 3d 921, 929 (10th Cir. 2013)

Wigley v. Hares,

82 So. 3d 932 (Fla. Dist. Ct. App. 2011)

1,21,23

Vll

Constitutional and Statutory Provisions:

Article III, Section 2 of the U.S. Constitution

Amend. XIV, Section 1, the U.S. Constitution

22 U.S.C. § 9003(a)

5,20, ,26

22 U.S.C. §§ 9001-9011

1,2,5,20,22,23,25

International Child Abduction Remedies Act

(“I CARA”).

28 U.S.C. § 1254(1)

28 U.S.C. §§ 1601-1611...................

Foreign Sovereign Immunities Act

17,18

42 U.S.C. §§11601-11610 (2000)

1,2, 5,20

42 U.S.C. 11601(a)

42 U.S.C. § 11603(e)

Hague Convention on the Civil Aspects of

International Child Abduction....................

1,2,5,18

Article 5 a)

2,6

Article 12

3,14

Article 13

3,21

Article 16

3,16,17

Article 18

1,4,27

Vlll

Convention on The Service Abroad of Judicial and

Extrajudicial Documents in Civil or Commercial

Matters, (Nov 15, 1965), Art. 5 and Art. 10........... 17

Sean and David Goldman International Child

Abduction Prevention and Return Act of 2014,

Pub. L. No. 113-150, § 2(b), 128 Stat. 1809......

Other Authorities:

Letter from Catherine W. Brown, Assistant Legal

Adviser for Consular Affairs, U.S. Dep’t of State, to

Michael Nicholls, Lord C.’s Dep’t, Child Abduction

22,27

Unit, United Kingdom (Aug. 10, 1995)

PETITION FOR WRIT OF CERTIORARI

Petitioner Marlon Abraham Rosasen respectfully

petitions for a Writ of Certiorari to review the order

of the United States Court of Appeals for the Ninth

Circuit, (entered January 9, 2023) and denied En

banc on March 21, 2023, holding that the March 31,

2020, Central District Court of California court order

vacating scheduled bench trial, was lawful.

OPINIONS BELOW

The Memorandum of the United States Court of

Appeals for the Ninth Circuit is not reported and is

included in the Appendix. No opinion exists and the

memorandum is unreported. The underlying final

order of the United States District Court for the

Central District of California is not reported and is

included in the Appendix.

STATEMENT OF JURISDICTION

The Memorandum of the court of appeals, upholding

the district court decision, on Jan. 9, 2023, Appendix

A, (App. A). The March 31, decision to vacate trial is

attached as (App. B). Petition for rehearing was

denied March 21, 2023, (App. C). The jurisdiction of

this Court is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL & STATUTORY

PROVISIONS INVOLVED

42 U.S.C. §§11601-11610 (2000), in relevant part: To

establish procedures to implement the Convention

on the Civil Aspects of International Child

Abduction, done at the Hague on October 25, 1980.,

the (“Convention”). The Convention is implemented

in the United States through the International Child

Abduction Remedies Act (“ICARA”), 22 U.S.C. §§

9001-9011, which in relevant parts states:

Article 1: The objectives of the present Convention

are, a) To secure the prompt return of children

wrongfully removed to or retained in any Contracting

State; and b) To ensure that rights to custody and of

access under the law of one Contracting State are

effectively respected in the other States.

Articles 3: The removal or the retention of a child is

to be considered wrongful where - 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.

Article 5: For purposes of this Convention - a)

“rights to custody” shall include rights relating to

the care of the person of the child and, in particular,

the right to determine the child’s place of residence.

b) “Rights of access” shall include the right to take a

child for a limited period of time to a place other

than the Child’s habitual residence.

Article 8: Any person, institution or other body

claiming that a child has been removed or retained in

breach of custody rights may apply either to the

Central Authority of the child’s habitual residence or

to the Central Authority of any other Contracting

State for assistance in securing the return of the

children.

Article 12: 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 judicial or administrative authority of the

Contracting State where the child is, a period of less

than one year has elapsed form the date of the

wrongful removal or retention, the authority

concerned shall order the return of the child

forthwith.

Article 13: Notwithstanding the provisions of the

preceding Article, if the judicial or administrative

authority of the requested State determines wrongful

removal or retention it is not bound to order the

return of the child if the person, institution or other

body which opposes its return establishes that— a)

the person, institution or other body having the care

of the person of the child was not actually exercising

the custody rights at the time of removal or retention,

or had consented to or subsequently acquiesced in the

removal or retention; or, b) there is a grave risk that

his or her return would expose the child to physical or

psychological harm or otherwise place the child in an

intolerable situation.

Article 16: After receiving notice of a wrongful

removal or retention of a child in the sense of Article

3, the judicial or administrative authorities of the

Contracting State to which the child has been

removed or in which it has been retained shall not

decide on the merits of rights of custody until it has

been determined that the child is not to be returned

under this Convention or unless an application under

this Convention is not lodged within a reasonable

time following receipt of the notice.

Article 18: The provisions of this Chapter do not

limit the power of a judicial or administrative

authority to order the return of the child at any time.

Article III, Section 2 of the U.S. Constitution, in

pertinent part:

The judicial power shall extend to all cases, in law

and equality, arising under this Constitution, the

laws of the United States, and treaties made, or

which shall be made, under their authority: - to all

cases effecting ambassadors, other public ministers

and consuls; - to all cases of admiralty and maritime

jurisdiction; ■ to controversies to which the United

States shall be a party; -to controversies between

two or more states; - between a state and citizens of

another state; - between citizens of different states; between citizens of the same state claiming lands

under grants of different states, and between a state,

or the citizen’s thereof, and foreign states, citizens or

subjects.

AMENDMENT XIV, Section 1, the U.S.

Constitution in pertinent part:

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they

reside. No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens

of the United States; nor shall any State deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

STATEMENT OF THE CASE

Petitioner, hereinafter “Father”, and Respondent,

hereinafter “Mother”, married in the United States

in 2013 and the twin children, United States citizens

by birth, were born abroad in 2015. In 2016, the

parties altered their habitual residence to California.

As in Chafin v. Chafin, 568 U.S. 165 (2013), in this

case, Mother described to friends and family that she

lived and worked in the United States.

This case presents questions involving balancing the

Hague Convention on the Civil Aspects of

International Child Abduction (the “Convention”),

also known as the International Child Abduction

Remedies Act (“ICARA”) 42 U.S.C. §§ 11601-11610

(2000), with the need to protect the Constitution.

The Convention establishes uniform legal procedures

to be employed when a child is abducted from one

country to another. See 42 U.S.C. 11601(a). The

Convention provides that children abducted in

violation of a parent’s custody rights, be promptly

returned to their country of habitual residence,

unless a grave risk of harm exemption is established.

Return is for example not required where there is a

grave risk that it would expose a child to physical or

psychological harm and is denied if a parent was not

exercising custody rights. See Convention Article 5a).

Habitual residence was as noted in the district court

order, United States from 2016, however, habitual

residence in the United States did not end in 2017.

Temporarily residing abroad, does not ordinarily

alter habitual residence. The order to vacate trial,

deprived Due Process, that hindered Father to show

among others, [t]hat, 1. He did not transfer his

supervision to Norway. 2. Visiting Norway did not

alter habitual residence, 3. The parties did not buy a

house in Norway in spring of 2018 or rent a home in

Denmark in 2019, 4. Shipping the car and luggage to

California in 2019, had significance, 5. The

Norwegian Immigration found habitual residence to

be the United States, 6. Mother’s actions, such as

securing a job offer were consistent with intending to

continue to live in California, See, district court

DKTs. 46,47,48 and 51. 7. The grave risk of harm

would make ameliorative measures ineffective, and

8. Given the Norwegian Child Protective Services,

(“CPS”), involvement, the children would not again

see their Father and additionally risk losing their

Mother, if the court failed to recognize United States

as the Children’s habitual residence.

Mother’s actions from 2013 to 2019, are inconsistent

with habitual residence being Norway, and Father

violating rights to custody under Norwegian laws.

Rather, Father was exercising custody rights under

U.S. laws since 2016, but have despite being a clear

Convention treaty violation and deprivation of

Constitutional rights, as seen below, not seen the

children since.

Here a Convention meant to deter international

child abductions, wrongful retention and forum

shopping, succeeded due to misrepresentations and

the onset of Covid, in just that, abduct children.

In a manner not previously seen in a Convention

case but similar in facts to Larry Risk v. Kingdom of

Norway, 707 F. Supp. 1159 (N.D. Cal. 1989), the

children have been abducted to Norway. However,

here the parties are married and has shared custody

and no custody proceedings besides CPS inquiry

existed in 2019.

The parties intended to return March 18, 2018, in

line with Father’s tourist visa, but was delayed to

2019. In 2019, the Norwegian Immigration found

habitual residence to be the United States, unjustly

depriving rights to family life” See C.D. Cal, Rosasen

et al. v. Norway et al. 21-cv-06811, DKT. 35, Ex. 4.

On July 2, 2019, Father returned to the United

States and on July 4, 2019, CPS instructed Mother

to bring the children in by July 18, 2019. Instead,

Mother took the children, U.S. passports and as

many belongings as the car could fit and left Norway

on July 11, 2019. Thereafter Mother filed paperwork

with the Danish authorities, of having immigrated to

the United States.

On July 31, 2019, Mother left the children by mutual

consent in Father’s care, See Friedrich v. Friedrich,

78 F.3d 1060, 1070 (6th Cir. 1996). On the party's

mutual birthday, July 23, 2019, the one-way tickets

from England to Los Angeles, California, were

bought. Mother and Father reaffirmed their

commitment to continue living in the United States

altering their agreement slightly as the children and

Mother would now visit Norway for summer and

every second new-year holiday, without Father.

On Aug. 7, 2019, CPS with police visited Mother at

the job were she had put in notice to quit by August

30, 2019, and summoned her to meet with CPS on

Aug. 9, 2019. The court's order to vacate trial, found

that Mother had contacted CPS, citing Baxter v.

Baxter, 423 F.3d 363, 371 (3rd Cir. 2005). However,

this is not true as Mother went to great lengths to

avoid CPS, including leaving the Children as seen in

App. F., with Father. At the meeting CPS insisted

Mother abscond from returning to California stating

that, if Mother could find a way to get the children to

Norway, and their investigation without Father, the

agency be less concerned for Mother’s parental

abilities for the time being. CPS informed Mother

after she stated the children where in the United

States, that CPS knew that the children were in

Belgium and intimidated Mother into requesting

police assistance, which she refused. After the

meeting, Mother called Father and warned him. The

following day, Father returned to the United States,

updated vaccines and reenrolled the Children in the

preschool they had attended daycare in before. These

are not the actions of a left behind parent, but of

parents cooperating to protect their children from a

grave risk of harm. See, CD. Cal: 2:21-cv-06811,

Rosasen et. al. v. Norway et al. DKT. 39-1, Ex. 3 and

DKT. 39-4, Ex. 11. The text messages referred in the

order to vacate, refers to Mother having committed

infidelities while Father and children were alone.

The messages do not diminished Fathers custody

rights, alter habitual residence or revoke consent.

After Mother failed to return Aug. 30, 2019, Father

filed for separation and joint custody on Sept. 23,

2019, at the Superior Court of California, Los

Angeles, case no. 19STFL11397. Despite Mother’s

behavior, Father thought Mother would return as

that’s what she told the children when they did

speak. Mother knew the children day care center as

seen in Jan. 10, 2020, transcripts. Mother never

disclosed this to CPS or her own mother. (App. E),

transcript 3.

After Mother was served the above joint custody case

on Oct. 4, 2019, See district court DKT. 47. Mother

approved this petition that was sent by the

Norwegian Central Authority, (“NCA”)1 on Nov. 4,

2019. On Nov. 20, 2019, given discrepancies, the

State Department requested additional information.

Instead of responding, NCA retained U.S. counsel to

circumvent the State Department and State custody

proceedings. These facts despite being unknown to

the district court, are relevant upon review.

1 NCA is Mothers foreign counsels place of employment from 20072016, District court DKT. 53, foreign counsel knew or should have known

that habitual residence was the United States and that Norwegian

immigration had concluded habitual residence to be the United States.

On Dec. 18, 2019, Mother’s counsel sent an observer

to monitor Fathers request for emergency order.

(App. E), (1st transcript). The actions were forum

shopping in both state and federal court. Mother had

been served Dec. 16, 2019. See. (App. E), (2nd

transcript).

On Dec. 19, 2019, NCA retained counsel for Mother,

filed this petition on Mother’s behalf, under-seal, and

requested an arrest warrant for Father, which was

denied Dec. 23, 2019, due to prior contradictory

knowledge by the court about Father. On Dec. 25,

2019, Mother arrived in Los Angeles, California and

was served the Emergency order by LAPD. Mother

thereafter and despite it being Christmas, to meet

with the children that day and until Jan. 6 and Jan.

8, 2020, when Mother’s mother permitted her to go.

The visits are referred to as good by the parties in

state court transcripts from Jan. 10, 2020. (App. E).

Mother did not tell Father about her counsels plans

to circumvent the shared custody proceedings.

On Jan. 10, 2020, Mother in case no. 19STFL11397,

again failed to appear. The court as a result,

continued those proceedings to April 20, 2020, and

made Father aware this Convention case, assigned

case no. 20STHC10001 filed Jan. 6, 2020. The case

was filed in conjunction with the Los Angeles

District Attorneys office.2The actions were meant to

circumvent the State court case and the State

2 The Los Angeles District Attorney, ("DA"), was unaware that the

petition was not verified by the U.S. Department of State or filed under

seal and denied Dec. 23, 2019.. Once the case was transferred to federal

court as CD. Cal: 2:20-cv-01140, the DA failed to make an appearance,

Department need for additional information and

alternative dispute solution attempts. As the State

Department was closed Jan. 10, 2020, due to a

snowstorm, Father first learned of the petition being

returned due to discrepancies, after release of files

on Feb. 15, 2021, from the Norwegian Ministry of

Justice and Public Security, (“NMOJ”). (App. F).

On Jan. 10, 2020, the state court in relevant parts;

ordered the children to stay with Father, denied

request for GPS devices to be put on the children

and granted Mother and grandmother a two-hour

visit for Jan. 11, 2020. Mother had a job offer in

California and did not have to travel to Norway to

continue supporting herself as alleged, See Jan. 10,

2020, transcripts and the district court DKT. 46.

From Jan. 11 to 12, 2020, the parties spent twelve

hours together. During this time Father offered

Mother all his savings, in return for her to stay and

co-parent but Mother claimed Father would change

her mind if she stayed. On Jan. 12, 2020, Father and

the children drove Mother and grandmother to the

airport.

On Feb. 4, 2020, Father removed the petition to

federal court, due to Civil Rights Violation if the

children were removed to a country from which he

was banned, and which was not their habitual

residence. Case was assigned case no 20-cv-01140FMO. That case was consolidated with the under

seal denied Petition of Dec. 19, 2019, in case no. 19cv-10742-JFW, here upon review.

On Feb. 14, 2020, Mother and Father’s counsel

without Father’s consent, agreed to “jointly” Motion

to let Mothers petition for return take precedence

before Fathers Motion to dismiss for perjury and

criminal harassment. Only to be stricken after a

expedited schedule was set. See DKTs. 1-28, only

seen in the consolidated case no. 20-cv-01140, DKTs.

Despite Mother written statement in district court

DKT. 52, being signed by her, Mother asserted to

Father that she did not state the allegations in

paragraph 42. The allegation are slanderous, perjury

and judicial deceit having caused irreparable harm,

requiring remand to district court to cross examine.

After March 21, 2020, grandmother again refused

Mother to meet the children without her, while

Father refused to meet with the grandmother, out of

fear the children be abducted. Father emailed

Chamber for advice. See Ninth Circuit DKT. 6, Ex. A.

On March 30, 2020, as the children’s preschool had

been closed since March 16, 2020, and Mother

continued to refuse to meet since March 21, 2020,

Father took the children on a road trip. The

perspective the children held in fall and spring of

2019/2020, was that they had returned and were at

home and settled.

On March 31, 2020, the district court without

serving Father, issued an order, that Mother had

met her heavy burden of demonstrating, by clear and

convincing evidence, that Norway was habitual

residence and would not subject [them] to a grave

risk of harm. As Norway is not on the Department of

State Hague Convention “noncompliance” list, a

believed violation of the Sean and David Goldman

International Child Abduction Prevention and

Return Act of 2014, § 2(b), 128 Stat. 1809, the

district court was unaware of the noncompliance. See

ADF 2019 Report & Recommendation. (App.G).

This Court, has advised that “courts can and should

take steps to decide these cases as expeditiously as

possible, for the sake of the children who find

themselves in these unfortunate situations”. Chafin

v. Chafin, 568 U.S. 165, 179 (2013). However,

violating the Due Process Clause at the expense of

the Convention is not what the legislators intended.

All Convention cases ruled on by this Court, had 3 to

9 days of bench trials.

On April 3, 2020, at 10:18PM the children without

an Amber Alert or Father being served, or allowed to

accompany the children, were removed by Law

Enforcement in Dubuque, Iowa. April 7 to 9, 2020

bench trial had been vacated in chamber. If Father

was fleeing as alleged, Father would not have used

his electronic devises or informed Mother of the trip.

The County Attorney continue to refuse a subpoena

to release the body cameras. Father believes the

denial is due to awareness that the actions were

unlawful. As Father had custody and was not served,

the actions constituted Civil Rights violations.

Father was at the district court represented by

counsel and therefore the district court abused its

ample discretion by vacating trial while counsel was

incapacitated. The actions caused Mother’s counsel

to gain an unfair advantage and avoid oral

arguments and cross examination. This Court

declared in Washington v. Glucksberg, 521 U.S. 702

(1997), that the Constitution, and specifically the

Due Process Clause of the Fourteenth Amendment,

protects the right of parents to direct the care,

upbringing, and education of their children. Also See

Troxel v. Granville, 530 U.S. 57 (U.S. 2000).

The facts presented went undetected due to the

pandemic panic, affecting the district courts better

judgment. Indeed, Covid is sited in the court order as

the reason to vacate, despite state and federal court

stating Dec 23, 2019, Jan 10, 2020, and March 3,

2020, that no prima facie case existed.

On April 7, 2020, NMOJ notified CPS, that the

children were in Norway, who reopened a custody

removal inquiry. Reports from that inquiry, shows

that the children did not want to go, started crying

and had to be dragged onto the plane. The same

evidence shows that Mother stated that U.S. counsel

told her to flee the country or risk being stuck and

having to co-parent. After Mother stated that maybe

in ten years the children can see their Father, CPS

closed its inquiry. See CD, Cal: 21-cv-06811-SPG-SP,

Rosasen et al. v. Norway et. al. DKT. 40-4, at Ex. 11,

or the district court DKT. 69, p. 80-423 of 698.

Father appealed the district court’s order timely on

April 29, 2020.

Thereafter, on May 6, 2020, during a meeting on a

visitation and legal fees, Mother’s counsel stated

that Norway was heavily invested and reserved the

rights to deny a interim visitation. See Ninth Circuit

DKT. 6, Ex. H, statement and DKT. 20, Ex. C, CPS.

The district court DKT. 125-1, of $334,399.00,

subsequently filed May 8, 2020, are unlawfully

redacted. Father asks this Court to seek as part of

Appendix, that Mother provide a non-redacted

version of DKT. 125-1, to assist this Courts review.

Father did not appeal district court DKT. 128,

ordering him to pay $150,000.00 in legal fees as the

costs were covered by Norway. Mothers Answering

brief, concedes to $750,000.00 in legal fees, not the

average cost of litigating a Convention case.

On May 15, 2020, Father’s counsel with consent,

filed a motion to be relieved as counsel. On May 18,

2020, after Norway refused the parties to agree on

an interim visitation, Father filed, now pro se,

Emergency Motion, Ninth Circuit, DKTs. 6.

On Oct. 30, 2020, after Mother had broken off phone

contact July 13, 2020, and was refused to enter an

interim agreement, the State Department sent a

verified petition for return of the children to their

habitual residence of California due to wrongful

retention. See Convention Articlel2. See (App.D).

On Dec. 7, 2020, the Ninth Circuit granted Father’s

Motion for Appointment of counsel, See DKT. 19, but

withdrew the same in DKT. 23, on Aug. 13, 2021.

The same reasons sited in DKT 19, still exists.

As a result of the State Department verified return

Petition, the Oslo District Court asked Mother on

Nov. 16, 2020, if the children could visit their Father

in the United States. The next day, Mother replied

that visits existed in the form of “phone” visitation.

On March 29, 2021, Mother stated to Father and the

Children that one call Father back for goodnight

time story, but never did. Father has attempted to

call every day since. Father views Mother as fearful

of losing custody to CPS unless she seized contact.

On Dec. 17, 2020, the Oslo District Court held a

hearing on return of the children, the court ruled on

Dec. 23, 2020, that it did not matter if Mother had

changed her mind before or after and refused to rule

on visitation pending this appeal.

On Feb. 11, 2021, the Borgarting Court of Appeals,

upheld the decision, not to return but added that if

U.S. Courts ordered return due to grave error of law

that Norwegian courts would most likely enforce

such an return order. The decisions are believed to

Convention treaty obligations by refusing to order

interim physical access and stating the parties did

not dispute Norway as habitual residence. Habitual

residence is at the core of the disputes facts. App. H).

On Feb. 15, 2021 the NMOJ informed that two files

could not be made public out of conerns for Norway’s

foreign policy interests. See (App. F).

On April 9, 2021, the Norwegian Supreme Court

refused a Writ of Certiorari, and shortly after all

phone contact was again cut off, Father the children

had not heard from Father since. State Department

views on the foreign judiciary, “That the Office of

f'.

Children Issues cannot publicly criticize the foreign

sovereign judiciary”can be seen in (App. D).

On Aug. 24, 2021, after the Ninth Circuit withdrew

granted motion for appointment of counsel, Father

filed suit against Norway at the Central District

Court of California that was assigned case no. 21-cv06811 captioned Marlon Abraham Rosasen et ah v.

Kingdom of Norway et ah, under 28 U.S.C. 16011611, Foreign Sovereign Immunities Act, (“FSIA”).

Upon attempt to serve defendants, Father contacted

the Oslo District Court on Aug. 30, 2021, in

accordance with the Convention on The Service

Abroad of Judicial and Extrajudicial Documents in

Civil or Commercial Matters, (November 15,1965).

On Sept. 9, 2021, at the Central District Court of

California, Honorable Judge John F. Walter who

presided the case here upon review and Broidy

Capital Management v. State of Qatar, 982 F.3d 582,

(9th Cir. 2020), denied transfer request in Rosasen et

ah v. Norway et ah, DKT. 12, citing the case raises

legal questions that needs to be properly heard.

On Sept. 10, 2021, the Oslo District Court revoked

executing proof of service as Norway objected to

Article 10 of The Hague Convention on Proof of

Service Abroad, Article 10 c), reads: the freedom of

any person interested in a judicial proceeding to

effect service ofjudicial documents directly through

the judicial officers, officials or other competent

persons of the State of destination.

As result, Father retained a process server who was

hindered and described a hostile environment. See

Rosasen et al. v. Norway et al. DKT. 16 and DKT 17.

On Oct. 21, 2021, the same process server Father

retained, ABC Legal, was retained by the Oslo

District Court to unlawfully serve Father to

terminate his rights of custody. The same address

used is listed in Rosasen et al. v. Norway et al., and

the actions appears to be retaliation for Fathers suit.

On Oct. 23, 2021, Father filed an Opening brief. On

Nov. 1, 2021, Father acting pro se, responded to the

Norwegian courts that it lacked jurisdiction and

venue, referring to the Convention’s Article 16..

On Nov. 25, 2021, Mother’s foreign counsel response

was that no U.S. appeal existed and that the order of

March 31, 2020, was final. The response went on to

explain that even if an appeal existed, the longtime

of no contact would make a return at this point

harmful. The court ordered that it did not matter if

there was an ongoing appeal in the United States,

and that the custody determination case would

proceed. As a result, Father informed the court that

he would not participate to avoid mootness here, and

return upon final legally binding U.S. court orders.

On Jan. 31, 2022, Mothers Answering brief conceded

to several facts including circumventing the State

Department. The brief of 51 pages, misnamed 2263

pages of Excerpts as Appellants, it was Appellees.

On Feb. 10, 2022, the district court denied a default

judgment in Rosasen et al. v. Norway et al. But

ordered Father to either re-execute proof of service

or file motion for the Clerk to execute proof of

Services via diplomatic channels on or by March 28,

2022, as Father subsequently did. On July 14, 2022,

the district court instead of filing for proof of service,

issued a Report and Recommendation. On Sept. 21,

2022, the case was closed. Appeal can be seen in

Ninth Circuit case no. 22-54980, as Rosasen et al. u.

Norway et al., See also Risk v. Kingdom of

Norway, 707 F. Supp. 1159, N.D.Cal 1989.

On April 5, 2022, Father filed a Reply brief and on

Jan 5, 2023, the Circuit upheld the order to vacate

trial. See (App. A).

On Jan. 23, 2023, Father subpoenaed the body

camera footage and sought assistance from Iowa

Senator Grassley, however the the County Attorney

continues to deny to release the evidence. (App. F).

On March 21, 2023, the Circuit denied a rehearing

en banc, leaving Father with no legal recourse.

On June 8, 2023 Father filed an Application for

Extension of time to file Writ of Certiorari, that was

granted on June 14, 2023 to August 18, 2023.

On March 21, 2023, the Circuit denied a rehearing

en banc, leaving Father with no legal recourse.

REASONS FOR GRANTING THE PETITION

FOR A WRIT

The Below Ruling Causes a Circuit Split on

how to Determine Habitual Residence,

Ameliorative Measures and What the Due

Process Clause Entails Under the Constitution

Pursuant to the Hague Convention on the Civil

Aspects of International Child Abduction and

the International Child Abduction Remedies

Act, (42 U.S.C. 11601-11610 (2001))

The Convention is a multilateral treaty created “to

protect children internationally from the harmful

effects of their wrongful removal or retention.”

Hague Convention, Oct. 25, 1980, T.I.A.S. No. Ee, /

1343 U.N.T.S. 89, reprinted in 51 Fed. Reg. 10,494

(Mar. 26, 1986). Congress implemented the

Convention through the International Child

Abduction Remedies Act, (“ICARA”). See 22 U.S.C.

§§ 9001-9011.

This case raises questions of National importance as

the decision below violated the requirement that

Mother must demonstrate a prima facie case by a

preponderance of the evidence, See 42 U.S.C. §

11603(e). As no hearing was held on habitual

residence and in the alternative, the grave risk

defense, and no Opinion, but a Memorandum and

district court order vacating, is all that exist, the

questions presented merits this Court’s review.

The courts try to rely on the State Department

Guidance that cautions against the use of

ameliorative measures—specifically, The Guidance

provides, when there is “unequivocal evidence that

return would cause the child a ‘grave risk’ of

physical or psychological harm,” it would be “less

appropriate for the court to enter extensive

undertakings than to deny the return request.”

Letter from Catherine W. Brown, Assistant Legal

Adviser for Consular Affairs, U.S. Dep’t of State, to

Michael Nicholls, Lord C.’s Dep’t, Child Abduction

Unit, United Kingdom (Aug. 10, 1995). See, e.g., Van

De Sande v. Van De Sande, 431 F.3d 567, 572 (7th

Cir. 2005); Simcox v. Simcox, 511 F.3d 594, 607 (6th

Cir. 2007).

The decision below implicates a conflict among the

federal and state courts of appeals—as to whether,

after a finding of no prima facie case, a hearing on

habitual residence can be vacated. The order to

vacate and remove the children to Norway, violated

Father’s rights of custody. See Abbott v Abbott, 560

U.S. 1 (2010). The district court erred in comparing

West v. Dobrev, 735 F.3d 921, 929 (10th Cir. 2013)

(quoting March v. Levine, 249 F.3d 462, 474 (6th Cir.

2001)), “[A] meaningful opportunity to be heard

is all due process requires in the context of a Hague

Convention petition.” Dobrev, 735 F.3d at 932. Here,

Father exercised custody rights. In West v. Dobrev,

Respondent violated French custody orders, and

Petitioner had custody rights while Respondent a

U.S. attorney had visitation he had not appealed.

The facts in this case are not comparable to West v.

Dobrev, 735 F.3d 921, 929 (10th Cir. 2013), where

habitual residence was clearly Belgium due to

French court orders. In this case Father was never

given meaningful opportunity to be heard as seen by

the fact that the district court misunderstood

Father’s defense as an article 13b) rather than

Article 3 and 5a), due to vacated trail.

The court should have considered In Parham v. J.R.

442 U.S. 584 (1979), the Court upheld a state’s

voluntary civil commitment procedures that allowed

minors to be committed to state mental hospitals by

their parents without an adversarial hearing before

an impartial tribunal. Such a hearing, according to

the Court, would create an unacceptable intrusion

into the parent-child relationship, and would be

inconsistent with the traditional presumption of

parental competence and good intentions.

The district court ruling to vacate trial, in relevant

part stated, 1: “ [A] district court has a substantial

degree of discretion in determining the procedures

necessary to resolve a petition filed pursuant to the

Convention and ICABA. Specifically, neither the

Convention nor ICABA, nor any other law of which

we are aware including the Due Process Clause of the

Fifth Amendment, requires ‘that discovery be allowed

or that an evidentiary hearing be conducted' as a

matter of right in cases arising under the

Convention".

And 2: “Moreover, the two key determinations in this

case -- the habitual residence of the Children and

whether Mother consented to the Children’s removal

to the United States -- may be resolved based on

undisputed facts or documentary evidence that

clearly corroborates Mother's testimony. An

evidentiary hearing in this context would be a futile

exercise and would merely delay the prompt return of

the Children to their country of habitual residence

(especially in light of the uncertainty caused by the

coronavirus pandemic)". Unquote:

In Troxel v. Granville, 530, U.S. 57, (2000), this

Court evaluated a Washington State law that

allowed any person to petition a court at any time to

obtain visitation rights whenever visitation may

serve the best interests of a child. There, a child’s

grandparents were awarded more visitation with a

child against the wishes of the sole surviving

parent. A majority of the Court agreed that the

statute was invalid, with a plurality of Justices

concluding that the law’s lack of deference to the

parent’s wishes infringed upon the parent’s

fundamental right and contravened the traditional

presumption that a fit parent will act in the best

interests of a child. Justice Thomas summarized an

important aspect of this Court’s precedential opinion

in Pierce v. Society of Sisters, 268 U.S. 510 (1925),

writing that “parents have a fundamental

constitutional right to rear their children, including

the right to determine who shall educate and

socialize them.” Troxel at 80 (Thomas, J.,

concurring). This fundamental right is just as critical

and sacred today as when Justice Thomas wrote

those words twenty years ago and when this Court

cemented that truth in 1925. Justice Thomas

proceeded to the next step in the analysis by

concluding: “I would apply strict scrutiny to

infringements of fundamental rights.” These are case

laws absent from the district court order to vacate

trial in-chamber during the onset of Covid. Unless

this case is heard, given the facts, the case will set

an unconditional case law.

The Ameliorative Measures split should be resolved:

The First, Eighth, and Eleventh Circuits have

indicated that, once a district court determines that

there is a grave risk that the child will be exposed to

harm, the court need not consider any ameliorative

measures but deny a return.

In Baran v. Beaty, 526 F.3d 1340 (11th Cir. 2008),

the Eleventh Circuit affirmed the district court’s

denial of the petition for return and held that the

district court had no obligation to consider the

petitioner’s proposal of undertakings. Id. at 1351-52.

The district court had found that returning the child

to the petitioner-father—an Australian citizen who

had abused the respondent-mother— would expose

the child to a grave risk of harm. Id. at 1346. It

cautioned that, because the court granting or

denying a petition for return lacks jurisdiction to

enforce any undertakings it may order, even the

most carefully crafted conditions of return may prove

ineffective in protecting a child from risk of harm.”

Id. at 1350. By contrast, the Second, Third, and

Ninth Circuits require district courts to consider a

range of ameliorative measures that would permit

return, even when the court finds that there is a

grave risk that a return exposes a child to physical

or psychological harm, causing a Circuit split.

The Ninth Circuit in Gaudin v. Remis, 415 F.3d 1028

(9th Cir. 2005), likewise adopted the Second Circuit’s

approach. The district court had denied a petition

under the Convention after finding that the children

in question would suffer a “grave risk of

psychological harm” if returned to the mother. Id. at

1033. The Ninth Circuit reversed and held that “the

district court erred in failing to consider alternative

remedies by means of which the children could be

returned without risking psychological harm.” Id. at

1035 (citing Blondin, 189, F.3d at 249).

State courts, which also have jurisdiction in

Convention petitions under I CARA, 22 U.S.C. §

9003(a), have adopted similarly conflicting

approaches toward the court’s role after a finding

that return would subject the child to grave risk.

Courts in those Florida, Illinois and New York, have

affirmed denials of Convention petitions upon

finding grave risk, without consideration of potential

ameliorative measures. See, e.g., Wigley u. Hares, 82

So. 3d 932 (Fla. Dist. Ct. App. 2011); In re M.V.U.,

No. 1-19-1762, 2020 WL 7074636 (Ill. App. Ct. Dec.

3, 2020); Oliver A. v. Diana Pina B., 151 A.D.3d 485

(N.Y. App. Div. 2017); In re Custody of A.T., 451 P.3d

1132 (Wash. Ct. App. 2019).

In contrast, appellate courts in California and

Connecticut and now here, have held, relying on

Blondin, that a trial court must consider

ameliorative measures that could mitigate the grave

risk before deciding a return petition. See Maurizio

R. v. L.C., 135 Cal. Rptr. 3d 93, 111 (Cal. Ct. App.

2011); In re Marriage of Forrest & Baddy, 51 Cal.

Rptr. 3d 172, 179 (Cal. Ct. App. 2006) (noting that,

even if there was grave risk of harm, the court

cannot deny the petition without considering

“alternative remedies that it could implement to

avoid or minimize the risk of harm” (citing Blondin,

189 F.3d at 248-50, and Gaudin, 415 F.3d at 1036));

Turner v. Frowein, 752 A.2d 955, 972 (Conn. 2000)

(remanding the case for failure to consider

undertakings as the court is “persuaded to follow

Blondin’s lead and conclude that, in exercising its

authority to deny a return under article 13b,

following its determination of abuse, the trial court

must conduct a analysis of ameliorative measures”).

The interpretation of a treaty, like the interpretation

of a statute, “begins with its text.” Medellin v. Texas,

552 U.S. 491, 506 (2008). The requirement that a

court consider ameliorative measures finds no

support within the text of the Hague Convention. As

courts have explained, “the concept of ‘undertakings’

is based neither in the Convention nor in the

implementing legislation of any nation.” Danaipour,

286 F.3d at (citation omitted). Rather, it is “a judicial

construct, developed in the context of British family

law.” Ibid, (citation omitted); see also Baran, 526

F.3d at 1349. That alone should end the matter:

there is no basis for requiring district courts to

consider ameliorative measures, when it is not found

in the Convention.

This case illustrates the problem of the Circuit

approach, allowing the district court to vacate

granted trial, the Circuit granting Fathers Motion

for appointment of counsel before vacating the same,

is fundamentally at odds with the Constitution.

The State Department has advised against the use of

ameliorative measures beyond those that are simple

and uncontroversial. Specifically, the State

Department has emphasized that in cases of “grave

risk,” it is most appropriate for courts to “deny the

return request” because to do otherwise could

“embroil the court in the merits of the underlying

custody issues and would tend to dilute the force of

the [grave risk] exception.” Letter from Catherine W.

Brown, Assistant Legal Adviser for Consular Affairs,

-5T

U.S. Dep’t of State, to Michael Nicholls, Lord C.’s

Dep’t, Child Abduction Unit, United Kingdom.

“Undertakings that do more than [paying return

airfare] would appear questionable under the

Convention.” The State Department’s interpretation

of the Convention is entitled to “great weight.”

Blondin, 238 F.3d at 162 n.10; Danaipour, 286 F.3d

at 22; Simcox, 511 F.3d at 606. Numerous courts of

appeals have relied upon the State Department’s

guidance in declining to return children in situation

of risk of grave irreparable harm. See, e.g., Van De

Sande, 431 F.3d at 572; Simcox, 511 F.3d at 606-07;

Danaipour, 286 F.3d at 25—26; Baran, 526 F.3d at

1350. Here the State Department after the district

court order, petitioned for the children’s return.

This Court should review to resolve inconsistencies

among the courts of appeals and make clear that

district courts need to honor granted motions and

Constitutional rights even during a State of

Emergency.

Here, the children have not seen their Father since

April 3, 2020, making it clear that the courts below

erred to protect human rights and fundamental

freedoms as seen in the United States.

Given the totality of facts presented, orders on

return in accordance with the Convention’s Article

18 and for a U.S. Child psychologist to hear the

Children upon return to Father, are sought. Such

orders are consistent with Pierce v. Society of Sisters,

268 U.S. 510 (1925), Stanley v. Illinois, 405 U. S.

645, 651, and Troxel v. Granville 530, 57, (2000).

* *

CONCLUSION

For the foregoing reasons, Petitioner respectfully

requests that the Petition for a Writ of Certiorari be

granted.

Respectfully submitted,

/s:/ Marlon Abraham Rosasen

August 18,2023

MARLON ABRAHAM ROSASEN

Pro Se

19453 Pacific Coast Hwy

Malibu, CA 90265

Phone: (323) 561-4001

Rosasen.ma@icloud.com

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.