The Hague Domestic Violence Project—In re Shoshana B., 41 Cal.Rptr2d 115 (Cal. Ct. App. 1995)

In re Shoshana B., 41 Cal.Rptr2d 115 (Cal. Ct. App. 1995)

Docket Number: G016007
Published: No
Decision Date: 1995-04-26
Name of Court: Court of Appeals of California, 4th Appellate District, Division 3
Opinion by: Sonenshine, Shelia P
Counsel for Petitioner: Andrus,, Terry C.;; Ben Hur,, Michelle
Counsel for Respondent: Flyer,, David R.;; Handy,, Mary E.
Counsel for Court: Dodd,, John L.;; La Flamme,, Harold
Requesting State: Austria
Requested State: United States of America
Procedural History: The Petitioner/mother filed a petition under the Hague Convention for the return of her child to Austria. The court denied the petition stating that returning the child to Austria posed a grave risk of harm. Petitioner/mother appealed.
Summary of Facts: The Petitioner/mother met the Respondent/father, a citizen of Austria, in California. The Petitioner/mother accompanied the Respondent/father back to Vienna, Austria and the couple married in 1987. In 1991, the couple separated and the Petitioner/mother, who was pregnant at the time, returned to California. The Petitioner/mother gave birth in California to the couple's daughter in 1992. Shortly thereafter, the Petitioner/mother and child reunited briefly with the Respondent/father in Vienna. In May of 1992, the Petitioner/mother took nude photographs of the couple's five month daughter posed in highly suggestive and offensive positions with nude males. The Respondent/father found the photos in September and showed them to his attorney. In November, after the couple had an argument, the Respondent/father fled to Australia with the child and gave the copies of the photos to the Vienna police. The Petitioner/mother obtained an ex parte order in Vienna for physical custody of the child. Under scrutiny of a Vienna juvenile court, the Petitioner/mother established a residence with the child in Vienna. Subsequent visits by Respondent/father were infrequent and irregular. In December 1993, when the Petitioner/mother and child visited California the Respondent/father filed an ex parte application in California for temporary custody of the child. The child was taken into protective custody and a California court exercised emergency jurisdiction under the UCCJA based on a finding by the Social Services Agency (SSA) that the child had been sexually abused and the Respondent/father knew, or should have known about the sexual abuse by the Petitioner/mother. In a separate action, the Austrian juvenile court concluded that it was in the child's best interests to remain with the Petitioner/mother and awarded her sole custody. A month later, a U.S. court declared that the child was a dependent child and placed her in the care of the Respondent/father under the supervision of the SSA. The Petitioner/mother then filed a petition in the federal district court for return of the child to Austria.
Defenses Raised: Hague Article 13b: Grave risk of harm to the child if returned to the petitioning country
Statutes Considered (ICARA): 11601, 11603(d), 11603(e)(2)(A)
Articles Considered (Hague Convention): 3, 12, 13(b), 19
Cases Considered: Application of Ponath, 829 F.Supp. 363 (D. Utah 1993); Brossoit v. Brossoit, 36 Cal.Rptr2d 919 (Cal. Ct. App. 1995) considered in concurring opinion; Calhoun v. Franchise Tax Bd., 574 P.2d 763 (Cal. 1978); Currier v. Currier, 845 F.Supp. 916 (D.N.H. 1994); Duquette v. Tahan, 252 N.J.Super. 554 (N.J. Super. Ct. App. Div. 1991); Falss v. Downie, 871 F.Supp. 100 (D. Mass. 1994); Gates v. Municipal Court, 11 Cal.App.2d 439 (Cal. Ct. App. 1992) considered in concurring opinion; Hafer v. Superior Court, 179 Cal.Rptr. 132 (Cal. Ct. App. 1981); In re Daniel C.H., 269 Cal.Rptr 624 (Ca;. Ct. App. 1990) considered in concurring opinion; In re Joseph D., 23 Cal.Rptr2d 574 (Cal. Ct. App. 1993) conisidered in concurring opinion; In re Steve W., 265 Cal.Rptr 650 (Cal.Ct.App. 1990) considered in concurring opinion; Loos v. Manuel, 278 N.J.Super. 607 (N.J. Super. Ct. Ch. Div. 1994); People v. Beach, 240 Cal.Rptr 50 (Cal. Ct. App. 1987) considered in concurring opinion; Plas v. Superior Court, 202 Cal.Rptr. 490 (Cal. Ct. App. 1984) considered in concurring opinion
Judicial Outcome or Order: Dismissed
Posted: 2004-12-07

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