Case Update (2021): Emilie DLM v. Carlos C; Hague Abduction; Grave Risk and Ameliorative Measures

Abduction

May 25

On April 29, 2021, the Court of Appeal of California, in an unpublished opinion, affirmed the denial of Carlos' Hague Abduction return petition.

Emilie and Carlos met at UC Davis Law, subsequently married and had two children. In September 2016, they moved to Carlos' hometown in Chile. Towards the end of a family vacation to California in 2019, Carlos texted Emilie, "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.” Emilie remained in California with the children, and filed a lawsuit to dissolve their marriage. Carlos subsequently filed a family law action and a Hague Convention return action. At a hearing on Carlos' return petition and Emilie's request for a temporary restraining order, Emilie testified about significant acts of domestic violence and Carlos' excessive drinking. The court concluded that returning the children to Chile would put them at grave risk. The court also concluded that given Carlos' denial of drinking excessively, there was no way to ensure he wouldn't then continue drinking excessively if the children were returned. On appeal, Carlos argued "that the family law court did not consider 'the full panoply of arrangements' that would safeguard the children in his care in Chile."

"There exists a judicial exception . . . to the 'grave risk of harm' exception. The trial court may order the return of a child despite a finding of grave risk of harm if ameliorative measures by the parents or authorities can reduce the grave risk of harm. The court exercises its discretion in determining the existence of and effectiveness of ameliorative measures. The determination whether enforceable ameliorative measures exist in a particular case is 'inherently fact-bound' and the petitioner urging the measures bears the burden of proof." [citations ommited]

"As ameliorative measures, Carlos C. provided evidence at trial that Chilean laws punish acts of domestic violence and that Chilean courts protect domestic violence victims through protective orders. The family law court properly found, however, that these ameliorative measures would be ineffective here because Carlos C. refuses to acknowledge his excessive drinking or domestic violence."

Melissa Kucinski

Melissa Kucinski works with family lawyers to strategically resolve their clients’ complex international cases. A fellow of the AAML, the IAFL, and chair of international family law committees in the American Bar and New York State Bar Associations, Melissa is a respected colleague to have on any legal team. A former consultant for the Hague Conference on Private International Law, member of the Uniform Law Commission’s Joint Editorial Board on Uniform Family Laws, and member of the U.S. Secretary of State’s Advisory Committee on Private International Law, Melissa maintains a robust network to help her clients in international disputes.

https://mkfamily.law/