The Hague Domestic Violence Project

Nadarajan v. Sandra, No. B155305, 2002 WL 31586632 (Cal. App. 2 dist. Nov. 20, 2002)

Docket Number

B155305

Published

No

Decision Date

2002-11-20

Name of Court

Court of Appeal, Second District, Division 1

Opinion by

Ortega

Counsel for Petitioner

Jordon, Leslie M

Counsel for Respondent

Hilton, William M

Counsel for Court

Requesting State

South Africa

Requested State

United States of America

Procedural History

Petitioner/Father filed suit seeking return of the child to South Africa. The Superior Court denied the petition after finding the child’s Respondent/Mother did not violate the Petitioner/Father’s custody rights by removing the child to the United States.

Summary of Facts

Petitioner/Father and Respondent/Mother were married in South Africa in 1992 and had Child in 1994. Petitioner/Father and Respondent/Mother divorced in South Africa in 1996. The Supreme Court of South Africa awarded Respondent/Mother sole legal and physical custody of Child and Petitioner/Father visitation on alternate weekends. During divorce proceedings, the South African Supreme Court issued a restraining order against Petitioner/Father, prohibiting him from removing Child from Respondent/Mother’s custody, from “assaulting, interfering with, threatening, or harassing” Respondent/Mother and Child, and from communicating with Respondent/Mother except through writing. This restraining order resulted from an incident in which Petitioner/Father held a gun to Child’s head to prevent Respondent/Mother from leaving with Child. Respondent/Mother showed that before separation, Petitioner/Father drank excessive amounts of alcohol and physically and verbally abused Respondent/Mother and Child. After the divorce, Petitioner/Father continued to harass and threaten Respondent/Mother with constant telephone threats at work, eventually causing Respondent/Mother to give notice and quit work. Obtaining police assistance was difficult for Respondent/Mother because Petitioner/Father’s brother and sister served as police officers. In July or early August 1996, Petitioner/Father failed to return Child to Respondent/Mother after a weekend visit and the police failed to cooperate in gaining the return of Child. Police from another location were summoned and helped return Child to Respondent/Mother’s custody. In September 1996, Petitioner/Father again refused to return Child and took him to Johannesburg and threatened Respondent/Mother that she would not see Child again unless she joined them there. Petitioner/Father then held Respondent/Mother there against her will for two weeks, beating and assaulting her in this time, cutting off Respondent/Mother’s contact with others, threatening to shoot Respondent/Mother an Child if she did not agree to leave with him, and refusing to return Child to Respondent/Mother. In July 1996, Petitioner/Father filed a false child neglect report against Respondent/Mother to Child and Family Welfare Society, who then opened an investigation and obtained a Children’s Court Order detaining Child in Petitioner/Father’s protective care. In November 1996, while Child was in Petitioner/Father’s protective care, Petitioner/Father kidnapped Respondent/Mother at gunpoint. Respondent/Mother’s brother who witnessed the kidnapping, called police, who twice failed to see Respondent/Mother and left because “all was in order.” When Respondent/Mother’s brother accompanied police to place where Respondent/Mother was held, Brother insisted on speaking with Respondent/Mother, whose face was badly swollen as a result of Petitioner/Father’s beatings. Respondent/Mother did not regain custody of Child until June 1997, after the Child and Family Welfare Society cleared Respondent/Mother. The report of the Child and Family Welfare Society reported that Petitioner/Father (1) lead an unstable lifestyle, (2) has associated with persons of ill-repute, (3) consumes liquor and becomes intoxicated, (4) has been involved with altercations with various persons, (5) is verbally and physically aggressive, (6) is violent and abusive to [illegible] married, (7) is irresponsible to family, (8) lacks stable employment, (9) is not fit to care for Child. The report further states that Child should be returned to Respondent/Mother for care, but that Petitioner/Father could receive “reconstruction services” from Child and Family Welfare Society, who would also monitor any visits of Petitioner/Father with Child. In June 1997, Children’s Court judge adopted the report. After this, Petitioner/Father did not visitation rights. In November 1998, Respondent/Mother moved with Child and her new husband, who she married in November 1996, to the United States.

Defenses Raised

Hague Article 12: Child had become “well-settled” in the new environment Hague Article 13b: Grave risk of harm to the child if returned to the petitioning country

Statutes Considered (ICARA)

11601(a), 11601(b), 11603(a), 11603(b), 11603(e)

Articles Considered (Hague Convention)

1, 3, 5, 21, 26

Cases Considered

Blondin v. Dubois, 189 F.3d 240 1999; Croll v. Croll, 229 F.3d 133 2000; In re Marriage of Baltins, 212 Cal.App.3d 66 1989; In re Marriage of S. , 171 Cal.App.3d 738 1985; Viragh v. Foldes, 415 Mass. 96 1993

Judicial Outcome or Order

Return Order Denial Affirmed

Posted

2006-09-19

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