[UPDATED] For the first time, a California appeals court has held that in international child abduction cases, if a child faces a “grave risk” of harm by being returned home, the trial court must conduct an evidentiary hearing to consider the claims.
In a long-running child custody dispute that stretched from Orange County, to Denmark, Tammy Noergaard was denied her attempt to argue that her former husband, Christian Noergaard, had abused their two daughters and her.
The Fourth District Court of Appeals, in a precedent-setting decision Jan. 15, overturned a trial judge’s decision in Orange County that allowed Christian to return to Denmark with their older daughter, Mia, without resolving Tammy’s claims of abuse.
The appeals court held that “clear and convincing” evidence that returning the child would cause “grave risk” to the child’s mental or physical well-being is a defense against return of the child. Tammy was entitled to a hearing. The appeals court called the lower court’s failure to decide the authenticity of the death threat claim “puzzling.”
Christian, the Danish father, had presented the Orange County court with a Hague Convention petition seeking to take Mia back to Denmark. Both daughters were born in California and are U.S. citizens, according to court papers.
The Hague Convention was created to fight the harmful effects of international child kidnapping. Signing countries, including the U.S., are required to order a child returned to his or her habitual home if the child has been wrongfully removed.
Tammy, the American mother, tried to argue Christian physically and sexually abused Tammy and the children and made a death threat against them, according to the court. But Judge Linda Miller in Orange County allowed Christian to leave with Mia for a flight to Denmark without a hearing on the issue, court papers state.
Miller relied on only two Danish court orders from 2012, which gave custody of Mia and her sister to their father, the appeals court said.
The appeals court also noted that Miller failed to consider a European Union investigation of the “alleged failure of Danish courts to take allegations of domestic violence seriously when brought by a non-Danish parent.”
Appellate Justice Richard M. Aronson wrote: “True, the Hague standard is narrower than the ‘best interests of the child’ in a custody proceeding, adding, “But psychological, sexual, or physical harm of a spouse or child poses a grave risk precluding a child’s return.”
Tammy argued on appeal that the couple intended to live and work in California and went briefly to live in Germany while her husband underwent job training. He lost the job before completing training and took the two children to his home in Denmark in 2007 without her. The couple was divorced in Denmark in 2013.
Mia ran away from her father in 2013. With the help of others traveled back to her mother in California, according to court papers.
Christian argued to the appellate court that the trial court’s failure to address the alleged death threats was harmless, but “that suggestion is preposterous,” the appeals court said.
The appellate court reversed the lower court’s decision, remanding the matter back to the trial court, requiring that court to resolve Tammy and Christian’s conflicting positions on the death threats and figure out exactly what happened in the Danish custody proceedings.
Justice Aronson was joined by Acting Presiding Justice William F. Rylaarsdam and Justice Eileen C. Moore.
The American Overseas Domestic Violence Center and the Family Violence Appellate Project contributed amicus briefs in support of Tammy.
Case: Noergaard v. Noergaard, No. G049854
[The current Trialinsider.com story corrects errors, clarifies and adds detail to an earlier version of the story.]