Below is a list of FVAP’s published cases regarding the Hague Convention. These cases are binding legal precedent in all trial courts in California, and can be used to support domestic violence-related cases in trial court. But please note: This is not a comprehensive list. Rather, it is a list of FVAP’s published successful custody appellate cases since 2012.
Laws often change. Reviewing this list is not a suitable substitute for legal research specific to your case. Additional legal research should be done before citing any case law in trial court. While a decision below may be used to support your (or your client’s) case in court, it may not be the best decision to use in your particular case, and/or there may be additional cases that you should cite. This list does not constitute legal advice, and does not create an attorney-client relationship between you and FVAP.
To read a decision, click on the case name. See our Legal Resource Library for toolkits, tip sheets, court templates, and other custody resources for survivors.
New Hague Convention Case Explains Importance of Balancing a Quick Resolution with Allowing Survivors to Gather Evidence of Abuse and the “Grave Risk of Harm” to Their Children.
Colchester v. Lazaro (2021)_9th Cir._ FVAP joined nine other national and Washington organizations as amici in support of a survivor and her child who had fled to the United States because of domestic violence. The Father, who lives in Spain, was given sole custody of the child. When Mother was visiting the child in Spain she observed aggressive behavior and testified about several detailed instances of child abuse by Father. Mother fled with the child to Washington state. Father filed a petition under the Hague Convention to have the child returned to him in Spain. In her defense, Mother argued that returning the child to Father would present a “grave risk” of psychological or physical harm to the child. Mother asked for a forensic psychologist to examine the child and give an expert opinion about abuse and harm to the child. The trial court did not allow it and granted the Father’s request to return the child to him in Spain. Mother appealed. The 9th Circuit Court of Appeals said that there should be a balance between deciding these types of cases quickly and allowing the parent to gather evidence in support of their defense. This can include expert testimony, but not always. Here, the trial court said there would be no “discovery” of evidence and did not support its reasons why. The trial court had not allowed Mother the opportunity to make her case that the child was at grave risk of harm if returned to her Father. Also, the trial court did not independently support its reasons for granting the Father’s request, which is required. The order was vacated, and Mother was given a new trial and the opportunity to have a psychological expert testify.
When the abusive parent outside of the U.S. is in denial of their domestic violence problem
In Re Marriage of Emilie D.L.M. and Carlos C. (2021) __Cal.App. __ In this case, a survivor of domestic violence and their child came to the U.S. to flee abuse. Under the Hague Convention, when a parent comes to the U.S. to flee abuse, children with them are typically sent back to their “home country” for that country to make custody decisions. This case establishes that if the abusive parent is in denial of their domestic violence problem, then it cannot be safe to return the child, no matter whether the home country has strong laws about domestic violence or otherwise. (FVAP successfully obtained publication of this case in partnership with 22 domestic violence organizations and academics.)
International “child abduction” by non-abusive parent:
Noergaard v. Noergaard (2015) 244 Cal.App.4th 76. The Court of Appeal ruled that, in an international child abduction case where it is alleged that the child faces “grave risk” of harm if returned to the home country, there must be a fair hearing where the trial court considers any relevant evidence about abuse when making any decisions about important issues. The trial court in this case failed to provide this fair hearing to the mother, who alleged that spousal and child abuse by the father made it unsafe for them to return to the country. The Court of Appeal overturned the trial court’s decision and confirmed that, where there is evidence that the status quo in the home country was abusive, the survivor’s and children’s speedy return to the home country should not be the goal for California courts. (FVAP filed an amicus (friend-of-the-court) brief and obtained publication) Pro bono co-counsel: O’Melveny & Myers
