United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN UNITED STATES DISTRICT COURT JUDGE.
matter is before the court on petitioner's motion
requesting that the Court authorize remote testimony. (DE
30.) For the reasons stated herein, Petitioner's motion
is granted. The court has expedited consideration of this
brings this case under the Hague Convention on the Civil
Aspects of International Child Abduction (the “Hague
Convention) and the International Child Abduction Remedies
Act (“ICARA”), 22 U.S.C.
§§ 9000-9011, seeking return of his
five-year old daughter, S.M.M.F. (the “child”) to
El Salvador, her home country. Petitioner filed his First
Amended Verified Petition on March 20, 2017. (DE 17.) That
same day, Petitioner also filed an ex parte motion
for a temporary restraining order requesting that the Court
enjoin Respondent from leaving the jurisdiction with the
Child pending resolution of this litigation. (DE 18.) The
Court issued a temporary restraining order on March 21, 2017.
(DE 22.) In that temporary restraining order, the Court
scheduled a hearing on petitioner's first amended
verified petition for March 28, 2017, to begin at 10:00 at
the United States Courthouse in New Bern, North Carolina.
now requests that the Court permit him and other witnesses
residing in El Salvador to testify by video-conference or
telephone at that hearing. Petitioner states that he intends
to call two witnesses to testify in support of his First
Amended Verified Petition. One is Petitioner's
Salvadorian counsel who intends to testify regarding the
parties' divorce and the subsequent proceedings. A second
is Petitioner's expert witness-a Salvadorian family law
attorney. Both witnesses reside in El Salvador. Petitioner
explains that he is financially unable to travel to the
United States for this testimony and will likely be unable to
obtain a visa to enter the country by the hearing. Likewise,
he is unable to pay for his witness's travel.
further the goals of the Hague Convention, the drafters
directed that “[t]he judicial . . . authorities of
Contracting States shall act expeditiously in proceedings for
the return of children.” Hague Convention, art. 11.
Courts have adopted flexible approaches to adhere to this
directive, including allowing remote testimony. Under Rule
43(a), a court may permit remote testimony “[f]or good
cause in compelling circumstances and with appropriate
safeguards.” Fed.R.Civ.P. 43(a). As the Fourth Circuit
has noted, remote testimony does not “preclude the
respondent from confronting and conducting relevant
cross-examination of the witnesses, ” so it does not
offend due process considerations. United States v.
Baker, 45 F.3d 837, 843-44 (4th Cir. 1995).
Court finds that good cause exists for permitting the remote
testimony here. Petitioner has represented to the Court that
he cannot afford the international travel and that he would
be unable to obtain a visa to enter the United States by
Tuesday's hearing. See Lopez v. NTI, LLC, 748
F.Supp.2d 471, 480 (D. Md. 2010) (finding the expense of
international travel for an indigent party sufficient cause
for remote testimony); El-Hadad v. United Arab
Emirates, 496 F.3d 658, 668-69 (D.C. Cir. 2007)
(permitting remote testimony for party unable to obtain a
addition to good cause, Rule 43(a) requires appropriate
(1) Accurate identification of the witness;
(2) Protection against influence from persons present with
the witness; and
(3) Accurate transmission.
Fed. R. Civ. P. 43(a) advisory committee's note. The
District of South Carolina has recently permitted a Hague
Convention petitioner to testify remotely after imposing
these safeguards. See Alcala v. Hernandez, No.
4:14-CV-04176-RBH, 2015 WL 1893291, at *3 (D.S.C. Apr. 27,
2015). The court required petitioner to be properly
identified and testify from a private room, free of outside
influence. The petitioner's counsel was also required to
troubleshoot his videoconferencing connection with the
courthouse staff prior to his testimony.
Court finds that these safeguards are appropriate here to
ensure reliable testimony. Petitioner shall locate a
conference room from which to testify by video-conference,
free from outside influences. Likewise, his witnesses should
be prepared to testify ...