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NEW CASE UPDATE: Court Rejects Ameliorative Measures Justifying Hague Convention Return of Children

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On April 29, 2021, the Second Appellate District of California rendered an order stating, in brief, that a father failed to establish the existence of ameliorative measures justifying repatriation of a child pursuant to the Hague Convention when there was a grave risk of physical or psychological harm to his child. The case is reported as In re Marriage of Emilie D.L.M. & Carlos C. (2021) 64 Cal.App.5th 876, as modified (May 28, 2021).

This case is an intersection of domestic violence law and the Hague Convention to decide custody disputes involving a child's alleged wrongful removal from her or his country of habitual residence. Generally, even when a child's repatriation presents a grave risk of physical or psychological harm to the child, repatriation may still be required if a parent establishes the existence of ameliorative measures. Here the Court concluded that the parent did not establish this exception.


This appeal concerns an international custody dispute involving the two minor children of an American mother and a Chilean father. In 2016, the parties relocated to Chile from California. There, the mother, Emilie D.L.M., was subjected to acts of domestic violence and emotional abuse by her husband Carlos C., sometimes committed in the presence of the children. Frequently, the violence was occasioned by Carlos C.’s excessive alcohol consumption. Following an unpleasant family vacation to California in 2019, Emilie D.L.M. and the children refused to return to Chile. She then filed a petition to dissolve the marriage and requested a domestic violence restraining order. In response, Carlos C. filed a petition for the return of the children to Chile pursuant to the Hague Convention. Following a lengthy evidentiary hearing, the family law court concluded, among other things, that Emilie D.L.M. established by clear and convincing evidence that returning the children to Chile would subject them to a grave risk of harm.

Carlos C. appealed the order and contended that the family law court erred by not adequately considering ameliorative measures that might allow for the children's return to Chile.


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. If a parent can prove the child's wrongful removal or retention by a preponderance of the evidence, the child can be repatriated, unless an exception to repatriation exists, such as the situation where a grave risk of physical or psychological harm to the child exists. ((22 U.S.C. § 9003(e)(2)(A); Monasky v. Taglieri (2020) 589 U.S. ––––, ––––, 140 S.Ct. 719, 729, 206 L.Ed.2d 9, 22.) This exception must be established by clear and convincing evidence. (§ 9003(e)(2)(A).)

There exists, however, a judicial exception to the “grave risk of harm” exception – the child may be returned if a parent can meet a burden of demonstrating that ameliorative measures by the parents or authorities can reduce the grave risk of harm. (Saada v. Golan (2d Cir. 2019) 930 F.3d 533, 539.)

Carlos C. tried to demonstrate that there were ameliorative measures permitting repatriation, namely evidence that Chilean laws punish acts of domestic violence and that Chilean courts protect domestic violence victims through protective orders. The trial court found and the appellate court affirmed, however, that Carlos C. never affirmed his problems with domestic violence and excessive drinking, including drinking while driving. In the context of a dependency action, the court in In re Gabriel K. (2012) 203 Cal.App.4th 188, 197, 136 Cal.Rptr.3d 813, observed that “[o]ne cannot correct a problem one fails to acknowledge.”

Even following his written promise to forbear from alcohol consumption during visitation with his children, Carlos C. could not keep his promise. The appellate court found that there are no ameliorative measures that will mitigate the grave risk of harm to his children. The Court found that it was likely that Carlos C. would continue to drink to excess and drive while intoxicated, thus exposing his children to a grave risk of harm.

The Court ultimately affirmed the trial court’s ruling.

Do you have a cross-border custody dispute? Are you trying to protect yourself and your children from domestic violence? Schedule your free initial consultation with the Law Offices of Jane Migachyov now to get the full protection of the Courts.

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