Filed 4/22/16 G.M. v. V.M. CA2/8
                        NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


G.M.,                                                                B261921

                         Plaintiff and Respondent,                   (Los Angeles County
                                                                      Super. Ct. No. BH009797)
                   v.

V.M.,

                         Defendant and Appellant.




         APPEAL from the judgment of the Superior Court of Los Angeles County.
Scott M. Gordon, Judge. Affirmed.

         Law Offices of Andrew J. Stern and Andrew J. Stern for Defendant and Appellant.

         No appearance by Plaintiff and Respondent.


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       This action arises under the International Child Abduction Remedies Act (ICARA;
22 U.S.C. § 9001 et seq.). ICARA implements the Hague Convention on the Civil
Aspects of International Child Abduction (Convention), a treaty to which the United
States and Ukraine are contracting states. Appellant V.M. (mother) and G.M. (father) are
Ukrainian citizens, and the unmarried parents of D.M. Mother left Ukraine with D.M.,
with father’s permission, but failed to return to Ukraine within the time contemplated by
mother’s and father’s agreement. Father sought the return of D.M. under ICARA, and
the trial court ordered D.M. to be returned to father in Ukraine. Mother appeals,
contending the trial court erred when it overruled her objections to a declaration in
support of the Hague petition filed on father’s behalf, in finding that father had custody
rights to D.M., and in failing to consider the history of domestic violence between mother
and father. We affirm, finding that mother has provided an inadequate record to permit
appellate review.
                    FACTUAL AND PROCEDURAL BACKGROUND
       On September 24, 2014, the Los Angeles County District Attorney’s Office filed a
petition under the Convention and ICARA seeking the return of D.M. to Ukraine,
alleging that father gave mother written permission to travel with D.M. from April 20,
2013, until April 20, 2014, but that mother and D.M. did not return to Ukraine by
April 20, 2014. Deputy District Attorney Deanne Castorena provided a declaration in
support of the petition, averring that her office received a Convention application from
Ukraine to locate and return D.M. following mother’s “wrongful retention” of D.M. The
declaration was signed under penalty of perjury, “that the foregoing is true and correct to
the best of my knowledge and belief.” Mother lodged objections to the declaration,
asserting that it was not based on personal knowledge, and contained hearsay statements.
       The trial took place over three days. The trial court overruled mother’s objections,
and heard testimony from mother and father. The court granted the petition, and ordered
D.M. to be returned immediately to father’s care in Ukraine. Mother timely appealed.




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                                       DISCUSSION

       “The Hague Convention provides a mechanism for the prompt return of a child
taken by one parent across international borders in violation of a right of custody.
[Citations.] ‘[It] seeks to deter parents from abducting their children across national
borders by limiting the main incentive for international abduction—the forum shopping
of custody disputes. [Citation.] A court that receives a petition under the Hague
Convention may not resolve the question of who, as between the parents, is best suited to
have custody of the child. [Citation.] With a few narrow exceptions, the court must
return the abducted child to its country of habitual residence so that the courts of that
country can determine custody.’ [Citation.] The sole function of an action under the
Hague Convention is to determine if the abducted child should be returned to the country
of the petitioning (complaining) parent.” (Maurizio R. v. L.C. (2011) 201 Cal. App. 4th
616, 633.)
       Under article 13b of the Convention, to be “wrongful,” the removal or retention of
a child must be both without the other parent’s consent and in violation of that parent’s
custody rights under the law of the state in which the child was a resident before the
removal. (Maurizio R., supra, 201 Cal.App.4th at p. 622, fn. 2; see also 22 U.S.C.
§ 9003(e)(1)(A), (f)(2).) “[I]n determining whether a parent exercises rights of custody,
‘ “the law of the child’s habitual residence is invoked in the widest possible sense,” and
. . . the sources from which custody rights derive are “all those upon which a claim can be
based within the context of the legal system concerned.” [Citation.]’ [Citation.]” (In re
Marriage of Witherspoon (2007) 155 Cal. App. 4th 963, 972-973.) The petitioner has the
burden of proving by a preponderance of the evidence that the child has been wrongfully
removed or retained. (22 U.S.C. § 9003(e)(1)(A).)
       Once it finds that a child has been wrongfully removed or retained, the trial court
must order the child returned unless it finds a specified exception applies. Under
article 13b of the Convention, the court is not bound to order a child returned if “there is
a grave risk that his or her return would expose the child to physical or psychological


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harm or otherwise place the child in an intolerable situation.” The respondent has the
burden of proving by clear and convincing evidence that the exception applies. (22
U.S.C. § 9003(e)(2)(A).)
       On appeal, interpretation of ICARA and the trial court’s application of the
Convention to the facts are legal questions, which we review de novo. (Maurizio R.,
supra, 201 Cal.App.4th at p. 634.)
       Mother’s appeal challenges the sufficiency of the evidence that father had any
custodial rights to D.M., and argues that the trial court failed to consider evidence of the
history of domestic violence between mother and father. However, mother has failed to
provide a reporter’s transcript of the trial on the petition, although the trial court’s minute
orders reflect a court reporter recorded the proceedings. Mother also failed to designate
the court’s minutes from November 3, 2014, to be included in the record, and a portion of
the trial was conducted on this day. The trial court’s minutes which are in the record
indicate that both mother and father testified at the hearing on the petition, and that father
introduced a number of exhibits, including D.M.’s birth certificate, a copy of Ukraine’s
family code, an agreement for temporary travel, and other documents. It appears that
most of these documents were appended as exhibits to the petition, but the trial exhibits
were not included in the record on appeal.
       Without the reporter’s transcript of the trial, we cannot divine what oral evidence
was produced by mother and father on the issues raised by mother’s appeal.1 Moreover,
we cannot know what exhibits, if any, were introduced on November 3, 2014, as we have
not been provided with the court’s minutes. It was mother’s burden to provide an
adequate record to establish prejudicial error. (Denham v. Superior Court (1970) 2
Cal. 3d 557, 564, 566; Altman v. Poole (1957) 151 Cal. App. 2d 589, 593.) “[I]f the record

1       Mother has included new evidence with her appellate brief, seeking to establish a
history of domestic violence between her and father. This evidence was not presented to
the trial court. Mother’s arguments on appeal must be confined to evidence in the record,
and matters outside the record will ordinarily not be considered. (Cal. Rules of Court,
rule 8.204(a)(2)(C); Banning v. Newdow (2004) 119 Cal. App. 4th 438, 453, fn. 6.)

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is inadequate for meaningful review, the appellant defaults and the decision of the trial
court should be affirmed.” (Mountain Lion Coalition v. Fish & Game Com. (1989) 214
Cal. App. 3d 1043, 1051.) To the extent mother challenges the trial court’s ruling on her
evidentiary objections to the declaration filed in support of the petition, she cannot
demonstrate that any error was prejudicial. (Cal. Const., art. VI, § 13; Code Civ. Proc.,
§ 475.)
                                      DISPOSITION
       The judgment is affirmed.


                                                         GRIMES, J.
       WE CONCUR:

                     BIGELOW, P. J.



                     FLIER, J.




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