When a Hague Convention Petition Did Not Return the Children

Mother [M] and Father [F] met in law school and married in 2006.  F, a Chilean national, was a permanent resident of the United States.  They settled down in the San Francisco area and had two children in seven years.

In 2016, the family moved to Chile close to F’s family.  According to M, he was very abusive to her, both physically and emotionally – especially after he had been drinking.  (He drunk driving convictions in California in 2006 and 2011.)  His drinking had become so bad, that the children were afraid of him and would not get into a car with him.  In 2019, the family vacationed in Hawaii and California.  In California, F told M that there was no reason for them to continue the marriage, and that she should not return to Chile.  So, M and the children remained in California while F returned to Chile.  Shortly thereafter, M filed a petition in San Luis Obispo County to dissolve her marriage to F and requested a temporary restraining order against F.

F filed a family law action and a Hague Convention petition in Chile seeking repatriation (return) of the children. In December of 2019, the San Luis Obispo County family law court heard the petition and M’s request for a temporary restraining order.  M stated that F always had a drinking problem, but the drinking increased dramatically after the children were born.  Neither she nor the children would be safe in his presence.  The court concluded that M established by clear and convincing evidence that return of the children F’s custody in Chile presented a grave risk to their physical and psychological well-being because of F’s excessive drinking.  The court also noted, “…that F denied that he drank alcohol excessively and it inferred that he would continue to drink excessively and expose the children to a grave risk of harm. If the children are returned to [F] at this time, there is no effective way to monitor [his] actions with the children or enforce the orders.”

F appealed and the Appellate Court agreed with the trial court.

“The Hague Convention provides a legal mechanism for the prompt return of a child taken by one parent across international borders in violation of the other parent’s custodial rights. A petitioner under the Hague Convention bears the burden of proving the child’s wrongful removal or retention by a preponderance of the evidence. If the petitioner succeeds in showing a wrongful removal, the Hague Convention requires repatriation of the child to its county of habitual residence unless an exception to repatriation exists.  One exception is that the child’s repatriation presents a grave risk of physical or psychological harm to the child. This exception must be established by clear and convincing evidence. There exists a judicial exception, however, 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 (improvement or make better) 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…

“…It is a reasonable inference from the evidence that [F] will continue to drink to excess and drive while intoxicated, thus exposing his children to a grave risk of harm. [F] has not borne his burden of establishing other ameliorative measures that would protect the children from his excessive drinking and abusive behavior. The order is affirmed.”

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