Bardales

INTRODUCTION

In this case we must decide whether a trial court had the power to dismiss a petition seeking return of children under the Hague Convention on the Civil Aspects of International Child Abduction, October 25, 1980, T.I.A.S. No. 11670 (Convention) because of the petitioner’s delay in prosecuting it and then proceed to decide child custody and related matters under state law. We conclude the trial court had such power. We affirm the trial court’s order and remand the matter for the trial court’s determination of attorney fees on appeal.

FACTUAL AND PROCEDURAL BACKGROUND

Hector Bardales and Emilia Duarte are the parents of four children bom in San Diego: three daughters bom in 1990, 1991 and 1998, and a son bom in 1996. In 2000, Duarte took the children to live in Mexico. In 2002, the two older children visited Bardales in California and never returned to Mexico.

In 2003, Bardales met Duarte and the two younger children in Tijuana. Bardales returned to California with the children and immediately initiated state court proceedings to prevent Duarte from taking the children back to Mexico.

As part of the state court proceedings, in April 2005, Bardales filed a…