The Santa Clara County, California DA charged the Father with a single count of felony child abduction and the jury convicted him. In January 2022, the trial court suspended his sentence and placed him on probation for 2 years. He appealed.
The parents to the minor child were subject to a UK custody order, where the Mother had primary residential custody in England and the Father had access, including some visits to the United States. For a visit in April 2019, the Father took the child to the USA, but then emailed the Mother on the return date saying he would not be bringing her back. The Mother obtained an emergency UK custody order requiring the child’s return. About a week after the retention of the child in the USA, the local California police served the Father with the UK return order. The police advised the Father that not only was he to return the child by a date certain, but he had to surrender her passports or risk being held in contempt of a court order, imprisoned, fined, and his assets seized. The court order required service on the Father by April 20th, on its face, but the police had not received the order until April 24th. The Father did not return the child, the police surveilled his house and ensured the child was with him, and in August, the Mother flew to California and retrieved the child from school. That same day, the Father was arrested.
The Father focused heavily on his inability to argue that returning the minor child to the UK would expose the child to a grave risk of harm, an exception to return under the Hague Abduction Convention. But, the Mother (nor the California authorities) had filed a petition to return the child under the Hague Abduction Convention. The parties were subject to a UK custody order. The Father’s retention of the child in California was a crime under California law. This case involved prosecution pursuant to California criminal law (not the civil remedy of return under the Hague Abduction Convention). The ex parte order that the Mother obtained on an emergency basis to return the child to the UK, that was served on the Father by the police, was merely evidence that went towards proving he had abducted the child.
The Father further argued a variety of different things: that the Mother’s residency had been revoked in the UK, so she obtained the original custody order fraudulently (something he never appealed); his belief that the ex parte return order was no longer in effect since he appealed it; that the ex parte return order was required to be registered in California prior to being enforced (but this is a criminal case, and not a case to enforce that order pursuant to the UCCJEA); that he was not on notice that violating a UK custody order would subject him to criminal penalties in the USA (but the UK courts had jurisdiction and he participated in those original proceedings); and, that the Hague Abduction Convention preempts state law and therefore he must be given the opportunity to present a defense to returning a child (but this is a criminal matter and is a distinct lawsuit that does not involve “the same subject matter”).
The Father also argued that he was not permitted to argue a necessity defense (excusing his criminal conduct because he took steps necessary to protect the child under the circumstances), but he had available remedies, such as seeking alternatives in the UK courts or availing himself of their social services, so his actions were not necessary. The Father also forfeited his argument against the Mother testifying remotely when he did not request an evidentiary hearing on her travel limitations (due to COVID) that necessitated the virtual appearance.
The court affirmed the judgment in an unpublished opinion on March 30th, but, on April 19th, certified the opinion for publication.