California Court Cites Due Process Flaws in International Child Custody Case

world-map-1237403Couples who separate and are seeking to divorce often do not agree on many of the myriad items to be resolved at the end of their relationship. One of the most fraught issues concerns the court’s custody determination:  the ultimate physical and legal custody arrangement. Such a determination will likely affect the amount of child support awarded as well. California courts apply the “best interests of the child” standard when allocating custody and visitation between the parents. Since this issue, and many others, can dramatically affect your family’s future, it is extremely important to protect your interests as well as your child’s. An experienced San Diego family law attorney would be able to guide you through the often complicated process while preserving your family’s legal rights.

Some child custody disputes involve a parent who wishes to relocate with the child to another state or country. And in some cases, a parent may try to take a child to another country without the proper authority or approval. The Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) provides a contracting nation (a signatory to the Convention) with the authority to have a child returned to his or her country of “habitual residence” if wrongfully removed to – or retained in – the contracting state. Under the Hague Convention, state and federal courts in the United States have concurrent jurisdiction to decide such custody cases.

In a recent case, a California trial court granted a father’s request to remove his 11-year-old daughter from her mother’s custody to return with him to Denmark – without an evidentiary hearing – on the “critical” elements of the mother’s objections under the Hague Convention. The mother set forth many serious allegations against the father, claiming (among other things) that he emailed a death threat against her and their daughter’s younger sister, and engaged in a history of spousal abuse and child abuse. But the trial court declined to address these allegations. Specifically, the court denied the mother’s request for a psychological evaluation of their daughter and held a “summary trial” that the mother alleged violated her due process rights. The court only admitted into evidence two documents:  two Danish court orders from 2012 granting the father custody of their 11-year-old daughter and her sister.

The trial court briefly interviewed the daughter and concluded that the mother’s abuse allegations were unfounded – or that the courts in Denmark would address and resolve those claims. The court granted the father’s petition under the Hague Convention, allowing him to return his daughter to Denmark. The mother appealed, claiming that the court erred by so ruling, without an evidentiary hearing on critical aspects of her claims of spousal abuse, child abuse, and death threats.

The court of appeals agreed and remanded the case back to the trial court for a full evidentiary hearing. In a lengthy opinion, the court reviewed the language of the Hague Convention, applicable case law, and the voluminous testimony and exhibits the mother provided for the trial court to review. Ultimately, the court concluded that the lower court violated the mother’s right to present evidence, pointing out that the overriding issue and objective of the Hague Convention is the child’s safety.

California courts endeavor to treat parents and divorcing spouses fairly in custody cases and other family law proceedings. To ensure that your rights are sufficiently protected, you are encouraged to contact a local family law lawyer as early as possible. Roy M. Doppelt is an experienced and dedicated family law attorney, representing parents for more than 20 years in Southern California. His office serves clients in San Diego, Linda Vista, Encinitas, Scripps Ranch, and throughout Southern California. For a free consultation with a devoted and experienced family lawyer, contact Doppelt & Forney through the law firm’s website or give us a call toll-free at (800) ROY IS IT (769-4748).

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