Dalmasso v. Dalmasso, 9 P.3d 551 (Kan. 2000)
- Docket Number
- No.83,895
- Published
- Yes
- Decision Date
- 2000-07-13
- Name of Court
- Supreme Court of Kansas
- Opinion by
- Larson
- Counsel for Petitioner
- Hazlett, Allan A
- Counsel for Respondent
- Taff, Frank D
- Counsel for Court
- Requesting State
- France
- Requested State
- United States of America
- Procedural History
-
Petitioner applied for return of children under the Hague Convention. Trial court in Kansas determined the habitual residence of the children to be France, and held respondent had failed to establish by clear and convincing evidence that return to France would subject them to grave risk of physical or psychological harm. The court ordered respondent to return the children to France.
- Summary of Facts
-
Petitioner and respondent were married in 1991 and have four children. In 1999, respondent left France with three of the children, due to dissatisfaction with the marriage. She filed for divorce, in Kansas. Petitioner had neglected her, had relationships with men, struck her and the children, and threatened to commit suicide. Lower court found “no evidence that the petitioner ever neglected or failed his children or placed them in actual danger.” The children had experienced corporal punishment from both parents. Grave and not merely serious harm to the children must be shown.
The Supreme Court of Kansas reviewed the standards for habitual residence, and two exceptions to the Convention: the Article 13 grave risk exception, and Article 20 “fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.” The Supreme Court denied hearsay evidence appeal, and found evidence of danger did not rise to level required by Article 13.
- Defenses Raised
-
Article 13(b): grave risk. Article 20: return “would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.”
- Statutes Considered (ICARA)
- 11603(e)(2)(A), 11604, 11605, 11607
- Articles Considered (Hague Convention)
- 13(b), 20, 26
- Cases Considered
- Sampson v. Sampson, 975 P.2d 1211 (Kan. 1999)
- Judicial Outcome or Order
- Return Order Affirmed (for appellate cases)
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