Noergaard v. Noergaard Summary

 

Opinion published on January 22, 2016

 

Factual Background

Mother and Father at one point resided in Orange County with their daughter Mia.  Thereafter the family moved overseas.  Father later lost his overseas job.  The job loss led Husband to abuse Mother and Mia.  He threatened to kill the two.  As some point Mother moved back to Orange County.  Mia then ran away to California to be with Mother.  Father demanded Mia’s return in an ex-parte request he filed under the Hague Convention. 

 

The trial court denied Mother’s request to appoint a 730 evaluator.  The Orange County Social Service Agency also refused to delay return of the child to Father while Mother collected evidence of Father’s abuse. 

 

Trial Court’s Decision

 

When the matter came up for trial, the court conducted it in a summary manner.  Of voluminous exhibit binders the court only admitted into evidence two exhibits.  The court did not allow Mother to call witnesses.  Nor did the court consider an email threat or permit Mother to cross-examine Father.  The court refused to consider overseas investigations which showed in copious detail Father abused Mia.  Finally, the court interviewed Mia in-camera with minor’s counsel present, but not mother or father or their counsel.  The court ordered Mia’s return and Mother appealed. 

 

Decision on Appeal

 

Under the Hague Convention, Husband to obtain Mia’s return had to show where Mia’s country of residence was and Mother wrongly removed her from that residence.  However, if Father showed as much, Mother could prevent Mia’s return based on affirmative defenses.  An included defense was a grave risk to the child.  Grave risk encompassed domestic violence and child abuse.  A court when it considers a Hague petition must satisfy the child will be protected if returned.  

 

The Court of Appeal determined the trial court here failed to exercise its duty to ensure the child was protected if returned.  To not allow cross-examination or testimony and the summary nature of the proceeding denied Wife due process.  There was a failure by the court to even undertake an evaluation of whether Father’s abuse and death threats were credible.  The trial court abdicated its duty to evaluate grave risk.  The trial court’s remark Husband’s home country was better able to consider the issue starkly illustrated the problem.  Under the reversible per se standard the Appellate Court reversed and remanded for a fair hearing

 

Analysis

 

From an appellate perspective, the standard of review the Court of Appeal utilized to review the trial court’s actions is not commonly seen.   Most practitioners are familiar with the abuse of discretion, substantial evidence, and de-novo standards of review.  Under those standards the California Constitution ordinarily requires that only prejudicial error will result in a reversal.  However there is a fourth standard.  “Denying a party the right to testify or to offer evidence is reversible per se.”  (Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 677.)  Under the reversible per se standard, error is reversible whether there is prejudice or not.  Thus it is inconsequential if the evidence Wife sought to introduce in the first trial would result in the same order on re-trial.  

 

As the California Supreme Court stated:  “ ‘We are fully cognizant of the press of business presented to the judge who presides over the [Family Law] Department of the Superior Court . . ., and highly commend his efforts to expedite the handling of matters which come before him.  However, such efforts should never be directed in such manner as to prevent a full and fair opportunity to the parties to present all competent, relevant, and material evidence bearing upon any issue properly presented for determination. [¶] Matters of domestic relations are of the utmost importance to the parties involved and also to the people of the State of California. . . . To this end a trial judge should not determine any issue that is presented for his consideration until he has heard all competent, material, and relevant evidence the parties desire to introduce.’ ” (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1357–1358, quoting Shippey v. Shippey (1943) 58 Cal.App.2d 174, 177.)