Steal Your Kid, Get a Full Evidentiary Hearing

Steal Your Kid, Get a Full Evidentiary Hearing

Parents steal their children.  Sometimes it is from one state to another and often parents bring their children from another county.  International parental kidnapping was so common that The Hague Convention on the Abduction of Children was enacted.   The began enforcing the treaty in 1988.  The idea behind the treaty is that we would return stolen children to other countries if they will return children to our country unless there is grave risk of harm to the child.  Grave risk of harm includes potential sexual abuse, domestic violence or regional conflict.   Risk of catching infectious disease or terrorist threats may be grounds for invoking the grave risk of harm exception.

The premise of this treaty is that parents should not benefit by abducting children and that the country from which the child is abducted should be able to hold custody hearing and determine which parent should have custody.  In the recent Noergaard case (published January 16, 2016), the California court of appeal held that the mother who opposed an order for her to return her child to Denmark was entitled to a full evidentiary hearing — and possibly a psychological evaluation.  (Mom states that she did not steal the child.  She says “It was actually the Danish citizen that ‘stole the children’ to Denmark and the oldest child ran away. “)

This case undermines this treaty and will cause untold harm to parents and children.  The axiom, “bad facts make bad law” fits here.  Mom alleged among other things, that Dad threatened to kill her in an email, that she and the children suffered mental and physical abuse, and that she could not get a fair hearing in Denmark.

These are not unusual assertions — in almost every kidnapping case the parent that steals the children makes claims like these.    The Noergaard court ignores the principle that a party is entitled to litigate in a forum where the evidence and witnesses live.  In California, a full evidentiary hearing may not be scheduled for six months and it is not unusual for a custody evaluation to take even longer.  The fact that the other parent and the witnesses may be 10,000 miles away is not even addressed.

The court ignores the idea that, “What is good for the goose, is good for the gander.”  Children are stolen from California every day. They are taken to Russia, Japan, Germany, Poland, and France.  Do we want the local court in Vladavostok  to hold a full evidentiary hearing in parental kidnapping cases?  No doubt the kidnapping mother or father will claim that they cannot get a hearing in Los Angeles County, that Los Angeles has rampant gang violence, there are terrorist incidents (San Bernardino), and that bird flu has reached epidemic proportions.  Further,  the parent could claim emotional and physical abuse that can only be refuted in country where it occurred.  Noergaard has eviscerated The Hague Convention on the Abduction of Children.  It sets a dangerous precedent that will make it easier for parents to kidnap their children from California.  This decision will cause a host of unintended results — results that will cause hardship on children.

Email Peter M. Walzer at pmw@walzermelcher.com if you need further information about child abduction issues.

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