## Facts

- Danny and Julie Witherspoon married in 1994 and had two minor children.
- Julie entered the Army reserves and later served on active duty; the children ultimately lived with her in Germany beginning in 2003 and attended school there until 2006.
- In July 2006, the children were hospitalized in Germany; hospital staff refused to release them to Julie due to reported intoxication, hostility, and erratic behavior.
- German youth welfare authorities intervened and placed the children in foster care; Julie allegedly engaged in disruptive conduct and made threats of self-harm and harm to the children.
- German authorities contacted Danny in the United States and required him to retrieve the children from Germany; he took them to California in August 2006.
- Danny filed for dissolution in California; Julie sought an order under the Hague Convention requiring the children’s return to Germany and requested a finding that California was an inconvenient forum for custody.
- The parties did not dispute Germany as the children’s habitual residence and did not dispute that both parents had custody rights under German law.
- The trial court ordered the children returned to Germany under the Hague Convention, deemed California an inconvenient forum, and awarded Julie temporary custody pending return.

## Issues

1. Whether the trial court erred under the Hague Convention by ordering return without making factual findings on raised Article 13 defenses, including consent/acquiescence, grave risk of harm, and the children’s objections.
2. Whether the trial court erred by awarding Julie temporary custody pending return without evaluating whether that placement posed a substantial risk of harm to the children.
3. Whether the trial court abused its discretion in declaring California an inconvenient forum for litigating longer-term custody.

## Decision

- The Court of Appeal reversed the order requiring return to Germany and the temporary custody award to Julie, and remanded.
- The trial court erred by failing to make factual findings on properly raised Hague Convention exceptions, including Article 13(a) (consent/acquiescence), Article 13(b) (grave risk/intolerable situation), and any child objection based on age and maturity.
- The trial court erred by awarding Julie temporary custody pending return without considering whether that order would create a substantial risk of harm to the children.
- On remand, the trial court was directed to make specific findings on the asserted Hague defenses and to reassess interim custody with an express child-safety risk assessment.

## Legal Principles

- Under the Hague Convention, a return order following a prima facie showing of wrongful removal requires consideration and factual findings on any properly raised Article 13 exceptions supported by evidence.
- Article 13(a) permits refusal of return if the opposing party proves the left-behind parent consented to or subsequently acquiesced in the removal or retention.
- Article 13(b) permits refusal of return if return would expose the child to a grave risk of physical or psychological harm or otherwise place the child in an intolerable situation.
- A court may refuse return based on a child’s objection only if the child has attained an age and degree of maturity making it appropriate to consider the child’s views.
- Even in a Hague proceeding, when a California court makes an interim custody order pending return, it must consider whether the placement presents a substantial risk of harm to the child.

## Conclusion

The Court of Appeal reversed and remanded because the trial court ordered a Hague return and awarded interim custody without making required factual findings on raised Article 13 defenses and without assessing whether temporary placement with the mother posed a substantial risk of harm to the children.


In re Marriage of Witherspoon, 155 Cal. App. 4th 963, 66 Cal. Rptr. 3d 586 (Cal. Ct. App. 2007)