Alcala v. Hernandez

Filing 57

ORDER OF FORENSIC INTERVIEW. Signed by the Honorable R Bryan Harwell on 1/16/2015. (hcic, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION

Fernando Contreras Alcalá,
Petitioner,
vs.
Claudia García Hernández,
Respondent.

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Civil Action No. 4:14-cv-04176-RBH

ORDER OF FORENSIC INTERVIEW

Before the Court is the motion [ECF No. 56] of Petitioner Fernando Contreras Alcalá
(“Petitioner”) and Respondent Claudia García Hernández (“Respondent”). The parties have
jointly requested that the Court enter an order requiring the children, F.C.G. and A.C.G.
(collectively, the “Children”), to be forensically interviewed by an appropriate professional
employed by a State Children’s Advocacy Center.1 The parties request that the Court order the
Children to be forensically interviewed to aid the parties in determining the applicability of any
defense under the Hague Convention.2 Petitioner has represented to the Court that the Children’s
Advocacy Center is willing to conduct the forensic interview following the entry of an order
from this Court.
The parties have made this request in lieu of a request that the Court interview the
Children in camera or appoint a guardian ad litem for the Children. Additionally, the parties

1

South Carolina Code Section 63-11-310 defines a Children’s Advocacy Center as a center
“which must coordinate a multi-agency response to child maltreatment and assist in the
investigation and assessment of child abuse.” Among other things, these centers must provide “a
neutral, child-friendly facility for forensic interviews . . . .” S.C. Code Ann. § 63-11-310(A)(1).
2
A forensic interview is an interview of a child by “a person specially trained to talk to children
when there is a suspicion of abuse or neglect.” State v. Kromah, 401 S.C. 340, 737 S.E.2d 490,
499 (2013) (quoting In re K.K.C., 728 N.W.2d 225, at *2 (Iowa Ct. App. 2006)). “The job of the
interviewer is not to provide therapy, but to collect facts.” Id. (citing State v. Borden, 986 So. 2d
158, 163 (La. Ct. App. 2008)).

have entered into certain stipulations [ECF No. 56] regarding the scope of the forensic interview
and have agreed to waive certain evidentiary objections to the use of the forensic interview in the
trial of this matter. In their stipulations filed with the Court, the parties have agreed to the
procedure for the forensic interview, as well as to the topics to be discussed during the interview
using the Child Advocacy Center’s standard practices and procedures.
More specifically, the parties have outlined the following areas to be discussed during the
interview:


Any past or present physical, sexual, or psychological abuse and/or harm to the
Children, as well as information regarding the Children’s living situation in
Mexico; however, this should not be construed so as to involve inquiry into the
comparative socioeconomic standards of living in the United States versus
Mexico.



The current living arrangements of the Children, including their involvement in
school, daycare, church, community, or extracurricular activities, the stability of
their environment, their health, their understanding of the English language, their
immigration status, their level of education, and their interactions with friends or
family members in the locality.



Any objection the Children have to being returned to Mexico, the grounds for that
objection, and the extent to which the children can articulate the reasons for the
objection and the understanding of the effect of such an objection.



The extent to which the Children have discussed the litigation with either parent
or their family members, or have otherwise been influenced or coached.3

In general, these topics correspond to possible defenses under Articles 12 and 13 of the
Hague Convention. The parties have been careful, however, to narrowly tailor these topics to
“not include any inquiry or determination of the best interests of the Children” as prohibited by
the International Child Abduction Remedies Act. See 22 U.S.C. § 9001(b)(4) (“The Convention

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The parties have also agreed to submitting further topics to the forensic interview for
discussion, so long as those topics are submitted prior to the conclusion of the forensic interview.
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and this chapter empower courts in the United States to determine only rights under the
Convention and not the merits of any underlying child custody claims.”).
Moreover, Petitioner has reserved the right to later argue the applicability of these
defenses, but has agreed to allow these topics to form a portion of the interview. Likewise,
Respondent has reserved the right to later request that the Court appoint a guardian ad litem or
conduct an in camera interview “in the event that the forensic interview fails to adequately
provide the Court and parties with information necessary to support or defend against an
applicable defense under the Hague Convention,” with certain limitations.
CONCLUSION
After careful review of the joint request of the parties, the Court hereby orders that the
Children shall undergo a forensic interview as soon as one can reasonably be scheduled. This
interview shall be conducted by an appropriate State Children’s Advocacy Center using its
standard practices and procedures, with certain modifications permitted by the joint stipulation of
the parties. The forensic interview shall be used for the purposes outlined in the parties’
stipulations filed with the Court. The parties shall obtain a translation and/or transcription of the
interviews and shall file a copy with the Court under seal. This forensic interview shall be
conducted in addition to any appointment of a guardian ad litem or in camera examination that
the Court may later deem necessary.
IT IS SO ORDERED.

s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
January 16, 2015
Florence, South Carolina

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