Martinez v. Reed, Civ. A. No. 85-3310.

• Decision Date: 11 December 1985
• Docket Number: Civ. A. No. 85-3310.
• Citation: 623 F. Supp. 1050
• Parties: Angela MARTINEZ v. Richard REED, et al.
• Court: U.S. District Court — Eastern District of Louisiana

623 F. Supp. 1050

Angela MARTINEZ v. Richard REED, et al.

Civ. A. No. 85-3310.

United States District Court, E.D. Louisiana.

December 11, 1985.

Ruben J. Bailey, New Orleans Legal Assistance Corp., Marrero, La., Mark A. Moreau, New Orleans Legal Assistance Corp., New Orleans, La., Ellis B. Murov, McGlinchey, Stafford, Mintz, Cellini & Lang, New Orleans, La., for plaintiff.

Terrence L. Hauver, Sessions, Fishman, Rosenson, Boisfontaine, Nathan & Winn, New Orleans, La., for defendants.

MEMORANDUM OPINION

MENTZ, District Judge.

On Tuesday, October 15, 1985, this matter came before the Court pursuant to 28 U.S.C. 1738A, which is the federal act giving full faith and credit to certain child determination decrees that have been made in accordance with that act. This statute was enacted in 1980, and therefore is applicable to this action.

This child custody dispute arises between Angela Martinez, a foreign national and citizen of Mexico, and Richard and Patricia Reed, residents of Opelika, Alabama, each claiming the right of custody of Ms. Martinez's male child.¹ The child, an American citizen by birth, is referred to by his natural mother as "Maico Lopez Martinez" and by his custodial parents as "Richard Clayton Reed." The "Reeds" claim they entered into an agreement with Ms. Martinez to adopt her unborn child and that on April 23, 1984, they took physical custody of the new born child and returned to their home in Opelika, Lee County, Alabama. Angela Martinez now claims she never intended to give up her child for adoption and it was never made clear to her that that was the agreement into which she had entered.

The Reeds instituted a temporary custody proceeding in Alabama on June 15, 1984. On November 19, 1984, the Alabama court awarded the Reeds temporary custody of the child. On October 19, 1984, the plaintiff filed a writ for habeas corpus in the Twenty-fourth Judicial District Court of the Parish of Jefferson, Louisiana, which was transferred to Civil District Court of the Parish of Orleans, Louisiana. After a hearing on the merits, the Louisiana Court on March 12, 1985, ordered the child be returned to his natural mother.

Conflicting custody decrees have been handed down by the State of Alabama and the State of Louisiana in reference to Maico Lopez Martinez. This Court's purpose is to determine which state made its custody determination consistently with the provisions of 28 U.S.C. § 1738A, commonly referred to as the Federal Parental Kidnapping Prevention Act. This district court has federal question subject matter jurisdiction over plaintiff's claim brought under the Federal Parental Kidnapping Prevention Act. See Heartfield v. Heartfield, 749 F.2d 1138 (5th Cir.1985) (District Court had federal question jurisdiction to enforce compliance with provisions of the PKPA where courts of two states asserted jurisdiction over a custody determination).

At the inception of the October 1985 hearing, the Court had indicated to counsel that it would consider the testimony and exhibits adduced in Alabama's hearing and the testimony and exhibits adduced in the Louisiana hearing. The Court also requested certain witnesses to testify for the purpose of finding out what was the intention of Ms. Martinez in executing the two written acts in anticipation of adoption and the posture of the parties during that period of time. After considering the memoranda, pleadings, exhibits, the two state court records, the live testimony, and the documents submitted in this matter and based on the record and the law, the Court rendered oral reasons in open court on October 17, 1985 ruling that the Louisiana court had made its custody determination consistently with the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A but that the Alabama Court had not made its custody determination consistently with said Act. This opinion provides written reasons supporting this Court's October 1985 ruling. To the extent that overlap exists between them, the Court's findings and conclusions are to be treated interchangeably.

FINDINGS OF FACT

I.

Upon consideration of the testimony of Mrs. Rosario Lopez of Chicago, Dona Marie Martin of Marrero, the social worker, Mrs. Nasralla, the Reeds' attorney, Mrs. Zoe Smith Wong, and Doctor Sarano of New Orleans, it appears that Ms. Martinez' expressed intention was to leave Chicago and come to New Orleans in April of 1984 to have her unborn baby adopted in a good home.

II.

The Court finds that the two written documents executed April 5, 1984, (the letter signed by Angela Martinez authorizing West Jefferson Hospital to release Ms. Martinez's child to Ms. Wong, the attorney representing the adopting parents) and April 23, 1984, (the document signed by Ms. Martinez granting sole custody to the Reeds in anticipation of adopting the new born child) were signed by Mrs. Martinez with her full consent and of her own free will and accord.

III.

The child in question was born at West Jefferson Hospital on April 21, 1984. It is apparent that between the baby's birth and May 11, 1984, Ms. Martinez changed her intention for some reason when she refused to sign the act of voluntary surrender. On May 11, 1985, Attorney Kathy Lampart was acting as her advisor.

IV.

It was known by all parties that the act of voluntary surrender under the Louisiana adoption act could not be legally signed for at least five days after the birth of the child. Louisiana Revised Statutes, Title 9, Section 422.7. Some of these persons also were aware that the mother could change her mind during the 30-day period following the execution of the act of voluntary surrender and thereby reclaim the child. R.S. 9:422.10.

V.

The judgment rendered by the Civil District Court of the Parish of Orleans in Louisiana puts much emphasis on the fact that the Notarial Act of April 23, 1984, does not comply with the formal act of surrender as established by Louisiana Revised Statutes 9:422 et seq. However, this act of April 23, 1984 was not and could not have been intended as anything more than a custody agreement upon which the Alabama Court relied in issuing its decree.

VI.

The Court is of the opinion that Ms. Martinez has a basic knowledge of the English language, even though she has been depicted as knowing only Spanish. As a matter of fact, she answered one of the judge's questions before her interpreter translated it for her. It is hardly possible that she could have lived in the United States of America for five years without learning some basic English, considering the easy accessibility to television, radio and other media by the public.

VII.

The Court finds that Angela Martinez' testimony was impeached by a series of witnesses, as named in paragraph one of this opinion, and in particular by Mary Martin's testimony in which Mrs. Martin demonstrated for the Court how she translated these instruments from English to Spanish line by line to Ms. Martinez. The natural mother's statements that she understood the first document to be an agreement providing for the care of her children² in the event that she died, and that the second document was only to provide shots for the baby, lack factual basis.

VIII.

The Court finds that the Alabama law relative to the Alabama Uniform Child Custody Jurisdiction Act codified at Alabama Code § 30-3-20 et seq. and the Louisiana Uniform Child Custody Jurisdiction Act codified at LSA R.S. 13:1700 et seq. are substantially the same.

IX.

The Uniform Child Custody Jurisdiction Act ("UCCJA") cross annotation shows that said Act has been adopted by both Alabama and Louisiana.

X.

Although Angela Martinez did not probably realize it, she may have been in a better legal position had she signed the formal act of surrender on May 11, 1984, thus guaranteeing her thirty days to change her mind.

XI.

The Court takes judicial notice that many mothers who choose to give their natural child up for adoption often do change their mind and decide to reclaim their child. Since the Louisiana law would allow Ms. Martinez to change her mind within thirty days after the execution of an act of formal surrender, the Court finds that she has the right to change her mind during the period prior to the execution of the act of surrender. The Court further notes that no contention has been made in this particular action as to any possible unfitness of Angela Martinez.

XII.

The Alabama welfare report of August 28, 1984, made in connection with the juvenile court proceedings before the Honorable James Noel Baker of Alabama indicates that the Reed family have all of the facilities to provide this child with a fine upbringing. They have demonstrated in many ways their love for this child. The most traumatic part of this whole matter will be if the baby is removed from the Reed household. No matter what the ultimate outcome of this custody dispute is, "Richard Clayton Reed", will undoubtedly be the "big loser" in this whole process.

XIII.

It has been suggested that Ms. Martinez has been victimized by the very people who pretended to befriend her; however, the testimony adduced indicates that more than likely, the opposite is true. Moreover, Angela Martinez has had expended for her benefit, and for the benefit of the baby, the life savings of a fine couple whose only fault was their desire to have a child.³

XIV.

This case has been full of emotionalism and the Court is well aware of the concern that both parties have for this particular child. However, the Court is required to decide a legal question and must pass upon this matter based upon the existing law.

CONCLUSIONS OF LAW

I.

The legal issue the Court is faced with is whether Alabama properly exercised jurisdiction consistently with the provisions of 28 U.S.C. Section 1738A, which gives full faith and credit to custody determinations made in accordance with that act.

II.

The Parental Kidnapping Prevention Act was enacted to prevent jurisdictional conflict and...