Monday, January 25, 2016
C.A. Orders New Hearing in International Abduction Case
Panel Says Due Process Requires Chance to Present Evidence in Hague Convention Controversy
By KENNETH OFGANG, Staff Writer
An Orange Superior Court judge deprived a mother of due process when it ordered her daughter returned to her father in Denmark without holding a full evidentiary hearing on the mother’s claims that both she and the child had been abused, the Fourth District Court of Appeal has ruled.
Div. Three Friday certified for publication its Dec. 16 opinion in the case of Tammy and Christian Noergaard regarding their daughter Mia, now 12 years old. Orange County sheriff’s deputies removed Mia from her mother’s custody in January 2014, and returned her to her father with the approval of county social workers.
Christian Noergaard had petitioned the superior court to order his daughter’s return under the Hague Convention on the Civil Aspects of International Child Abduction. The treaty requires a signatory country to honor the child custody and visitation orders of another, if the latter is the country of the child’s “habitual residence,” unless the other parent establishes one of the affirmative defenses recognized by the treaty.
Some of those defenses, such as that the parent seeking the return of the child was not exercising custody rights, or that a child of adequate age and maturity objects to returning, may be established by a preponderance of the evidence. Others, such as that the return would violate human rights or fundamental freedoms, or that it would cause “grave risk” to the child’s mental or physical well-being, must be established by clear and convincing evidence.
Tammy Noergaard alleged grave risk in her response to her ex-husband’s petition. Case law holds that evidence that the petitioner has physically abused the other parent in the presence of the child may be sufficient to prove grave risk.
Earlier Abuse Allegations
According to news accounts of the case, the Noergaards met in 2000 in California. Christian Noergaard was a computer science engineer at the time and Tammy Zied was a software engineer. They married a year later, and their two daughters were both born here before the family moved to Germany, and later to Denmark.
The couple eventually separated after accusations that Christian Noergaard had been violent toward his wife and daughters—allegations he denied. In 2012, Danish courts granted him custody of both children. Tammy Noergaard claimed that Mia began running away from home to escape violence being perpetrated on her and her younger sister.
Superior Court Judge Linda L. Miller, after reviewing declarations and documents and interviewing the child for an hour, concluded that the mother failed to establish grave risk and ordered the child returned to her father, who promptly returned to Denmark with the child.
Justice Richard Aronson, writing for the Court of Appeal, acknowledged that the practical impact of the court’s decision may be dependent on proceedings in Europe.
“With its international law dimension and fraught issues of a family torn apart across borders, this case is undeniably complex,” he wrote. “But that complexity, if the parties are unable to resolve their differences, is all the more reason not to short-circuit the adjudicative process.”
Ruling Called ‘Puzzling’
Miller erred, Aronson said, in considering the evidence submitted by the father without allowing the mother to present evidence that would have painted a very different picture of the case. In particular, the justice said it was “puzzling” for Miller to decide that she would not hear testimony from the parties or their technology experts regarding the authenticity of an email purportedly sent by Christian Noergaard in which he threatened to kill his ex-wife.
Instead, the justice explained, Miller essentially found the issue unresolvable and abdicated her responsibility to decide it. That was critical error, Aaronson said, because it was the judge’s function “to resolve even the most complex issues of disputed material fact,” and because the judge should not have determined in advance what the testimony would or would not have shown.
The email, postdated the Danish court decisions that were the basis of the trial judge’s ruling, Aronson noted, adding that it was unclear whether those courts considered the mother’s claims of similar threats in the past.
“There are two manifest flaws in simply leaving the issue of death threats and other unresolved material facts for Danish authorities potentially to address,” the justice wrote. The Hague Convention, he emphasized, mandates that the court ruling on a petition for a child’s return consider allegations in support of affirmative defenses such as grave risk, and does not relieve the courts of the rendering country of their responsibility for a child’s safety.
Aronson went on to summarize the evidence that the trial judge erroneously excluded—including a report by a Danish expert claiming that Mia reported being abused, the testimony of a Danish child welfare worker who attempted to find housing for Mia away from her father and testimony from social workers who interviewed the child after she was taken from her mother in Orange County, along with their report, which the mother claimed would show the inadequacy of their investigation.
“Based on these and similar examples from the record, the trial court could not simply ignore or decline to hear mother’s evidence or proposed testimony and deem the matter fully heard and fairly resolved,” the justice wrote. The court, he clarified, was expressing no view on the merits of the parties’ claims, but simply requiring “a full and fair presentation of their evidence.”
The case is Noergaard v. Noergaard, 16 S.O.S. 455.
Copyright 2016, Metropolitan News Company