HAGUE CONVENTION AND CUSTODY MODIFICATION LITIGATION - HABITUAL RESIDENCE - “GRAVE RISK” DEFENSE - ADDITIONAL ANALYSIS REQUIRED.

A California Court of Appeal made some important points about the boudaries between custody cases adn hague convention cases, and construed the "Grave Risk of Harm" defense narrowly, in Forrest-Benavides v. Eaddy, ___ P.3d ___, ___ Cal. App. ___, 33 FLR 1039 (11/17/06), as it reversed a modifying decision by the California court that had made the original custody order.

When the father came back to modify, the children by that time had been living in Australia with their mother, with the father’s consent, since 2003. It was in 2005 that the 12-year old child came back to visit the father for three months in California and he refused to return her. It is elementary that if the child’s habitual residence is now in Australia, the mother had every right to file a Hague Convention action, and once she did, the California trial court had no business proceeding with the custody modification case. The pendency of the Hague Convention proceedings, in fact, deprives the trial court of custody jurisdiction. The custody-trying court had in fact heard the mother’s Hague application, but it found a grave risk of harm from the child’s return, and threw out the Hague case on that defense. But the appellate court explains that unless there are extreme circumstances such as war or famine that pose such a risk from the home country’s environment, the grave risk defense should be found only “if there is clear and convincing evidence that the child would suffer abuse as a result of being returned.” The father’s evidence was not that sort of thing. It was general custody evidence that the child was doing badly in Australia, doing poorly in school, contemplating suicide, etc. but the evidence was contradicted by the mother’s witnesses and exhibits indicating to the contrary. The Court of Appeal stated that even if the evidence showed some risk of harm from returning the child to Australia, the trial court would have to have found that the Australian courts were incapable of, or unwilling to, protect the child adequately, and that there were no alternative remedies to avoid or minimize that risk of harm if the child did return. No such analysis was conducted by the trial court here.