The California Court of Appeal affirmed a family law court’s decision not to return children to their home country because of father’s refusal to admit excessive drinking and emotional abuse of the mother. (In re Marriage of Emilie D.L.M. and Carlos C. (2021) 64 Cal.App.5th 876).
Carlos was a foreign student from Chile who was studying for his LLM at UC Davis Law School where he met his future wife Emilie. In 2006, they got married and had two children. In 2016 they relocated to Carlos’ hometown of La Serena, Chile, where his mother and large extended family live.
In 2019 the family took a vacation to Hawaii and then to Lake Tahoe, California. Emilie alleged that’s where he consumed excessive alcohol and became verbally and physically abusive to her. Carlos texted her, “There is nothing left for us after the past two weeks. Don’t bother coming back to Chile. We’ll make arrangements later on regarding your belongings.” Carlos returned to Chile by himself.
Several weeks later Emilie filed for divorce in California and later requested a Domestic Violence Restraining Order (“DVRO”) against Carlos, alleging he had battered and emotionally abused, sometimes in the presence of the children. In the meantime, Carlos petitioned the Chilean family law court pursuant to the Hague requesting the children return home.
The San Luis Obispo Superior Court, family law division, J. Gayle L. Peron, presiding, (Case No. 19FL-0484) conducted an evidentiary hearing on Emilie’s DVRO and issued comprehensive findings, including that some of Emilie’s allegations were credible, but others not. The family law court found Carlo was not credible regarding his alcohol consumption and denial of Emilie’s allegations concerning emotional abuse in the presence of the children. The family law court found Emilie had established by clear and convincing evidence that returning the children to Chile presented a grave risk to their physical and psychological well-being.
The family law court found “If the children are returned to [Carlos C.] at this time, there is no effective way to monitor [his] actions with the children or enforce the orders. For all of these reasons, the court cannot find that ameliorative measures will eliminate the grave risk to the children.”
The Hague Convention requires that children taken from their habitual country of residence be returned, subject to certain exceptions. A major exception is if returning the children to their home country presents a grave risk of physical or psychological harm to the children. However, there is an exception. If, despite grave risks, the parents or local authorities can take ameliorative measures to reduce the risks, then the children must still be returned to their home country. (Saada v. Golan (2019) 930 F.3d 533, 539.)
Carlos presented to the family law court that Chile also punishes domestic violence. The family law court, however, reasoned that Chile’s ameliorative measures were ineffective here because of Carlos’ refusal to acknowledge his excessive drinking or acts domestic violence.
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