Filed 4/29/21 Marriage of Emilie D.L.M. and Carlos C. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

In re Marriage of EMILIE 

D.L.M. and CARLOS C.

2d Civ. No. B304344

(Super. Ct. No. 19FL-0484)

(San Luis Obispo County)

EMILIE D.L.M,

 Respondent,

v.

CARLOS C.,

 Appellant.

Carlos C. appeals an order of the family law court denying 

his petition filed pursuant to the Hague Convention on the Civil 

Aspects of International Child Abduction (the Hague 

Convention). (22 U.S.C. § 9001 et seq.)1 We conclude that Carlos 

1 All further statutory references are to Title 22 of the 

United States Code.
2

C. did not bear his burden of establishing the existence of 

ameliorative measures to ensure his children’s safety and affirm.

This appeal concerns an international custody dispute 

involving the two minor children of an American mother and a 

Chilean father. In 2016, the parties relocated to Chile from 

California. There, the mother, Emilie D.L.M., was subjected to 

acts of domestic violence and emotional abuse by her husband 

Carlos C., sometimes committed in the presence of the children. 

Frequently, the violence was occasioned by Carlos C.’s excessive 

alcohol consumption. Following an unsuccessful family vacation 

to California in 2019, Emilie D.L.M. and the children refused to 

return to Chile. She then filed a petition to dissolve the marriage 

and requested a domestic violence restraining order. In response, 

Carlos C. filed a petition for the return of the children to Chile 

pursuant to the Hague Convention. Following a lengthy 

evidentiary hearing, the family law court concluded, among other 

things, that Emilie D.L.M. established by clear and convincing 

evidence that returning the children to Chile would subject them 

to a grave risk of harm. 

FACTUAL AND PROCEDURAL HISTORY

Carlos C. and Emilie D.L.M. met while students at the 

University of California Davis Law School. Carlos C., a Chilean 

native, held a law degree in Chile, and was pursuing an advanced 

law degree at Davis. Following law school, Emilie D.L.M. passed 

the California state bar exam and accepted a litigation position 

with a Bay Area law firm. Carlos C., a permanent resident of the 

United States, established a legal translation service in the Bay 

Area.

In 2006, the couple wed and, within seven years, had two 

children. Emilie D.L.M. soon realized that Carlos C. frequently 
3

drank alcohol and became verbally abusive to her when he was 

intoxicated. In 2006, and again in 2011, he was arrested and 

subsequently convicted of driving under the influence of alcohol.

In September 2016, the parties and children relocated to 

Carlos C.’s hometown of La Serena, Chile. Carlos C.’s mother 

and his large extended family lived nearby.

In Chile, Carlos C. established a law practice and also 

worked as a law professor. Emilie D.L.M. worked remotely as an 

independent contractor for a California law firm. The couple paid 

income taxes in the United States and Chile. Their children were 

bilingual and held dual American-Chilean citizenships. The 

children enrolled in schools, played with paternal cousins, and 

participated in music, sports, and social activities in La Serena. 

In 2019, the family took a vacation to Hawaii and then to 

Lake Tahoe, California. During the vacation, Carlos C. consumed 

excessive alcohol and became verbally and physically abusive to 

Emilie D.L.M.

Following the 2019 California vacation, Carlos C. sent a 

text to Emilie D.L.M. stating, “There is nothing left for us after 

the past two weeks. Don’t bother coming back to Chile. We’ll 

make arrangements later on regarding your belongings.”

Although Emilie D.L.M. and the children had return airline 

tickets to Chile, they remained in California. Several weeks 

later, Emilie D.L.M. filed a petition to dissolve her marriage to 

Carlos C. and later requested a temporary restraining order

against him.

Carlos C., who had returned to Chile in the meantime, 

returned to California. He visited unsupervised with the children 

for three days. Emilie D.L.M.’s mother required Carlos C. to sign 

an agreement that promised he would not consume alcohol while 
4

visiting the children. Carlos C. testified that he signed the 

agreement without reading it and under pressure from his 

mother-in-law. He violated the agreement by consuming alcohol 

during the three days of visitation with his children.

Carlos C. then returned to Chile where he filed a family 

law action and a Hague Convention petition seeking repatriation 

of the children. In December 2019, the San Luis Obispo County 

family law court heard the petition and Emilie D.L.M.’s request 

for a temporary restraining order.

Family Law Evidentiary Hearing

At the contested family law hearing, Emilie D.L.M.

testified that Carlos C.’s drinking “suddenly increased after the 

birth of [their] children and increased drastically” after moving to 

Chile. She described several occasions when she concealed the 

keys to Carlos C.’s vehicle to prevent him from driving while 

intoxicated.

Emilie D.L.M. also described incidents of domestic violence 

and emotional abuse, including sexual insults, some of which 

occurred in the children’s presence. On one occasion, Carlos C.

threw her to the bathroom floor, causing her to bruise her face 

against the bathtub. On another, he kicked her in her side and 

legs, causing her to fall from bed. In August 2018, Carlos C.

became angry and threw the family television out the door as 

Emilie D.L.M. and the children were watching it. On Chilean 

Independence Day, Carlos C. became intoxicated at the home of 

his uncle. As Emilie D.L.M. drove everyone home, Carlos C.

kicked the windshield and insisted on driving. He pushed Emilie 

D.L.M. from the vehicle as the children screamed. The couple’s 

minor daughter physically struggled with Carlos C. to prevent 

him from driving. Carlos C. overwhelmed his daughter and drove 
5

away until his uncle blocked the road. In the spring of 2019, 

Carlos C. threatened to kill the family dog to “teach [Emilie 

D.L.M.] a lesson.” One evening, Carlos C. locked Emilie D.L.M.

out of the bedroom, only to shove her to the floor three times after 

he relented and opened the door. Carlos C. also demanded money 

from her and threatened her with harm if she did not pay him. 

Emilie D.L.M.’s legal earnings were a critical source of the 

household funding.

Carlos C. also ridiculed his daughter’s intellect and 

compared her unfavorably to himself and her brother. During 

the Hawaiian vacation, Carlos C. kicked Emilie D.L.M. from the 

bed where she slept with her son. The child awoke and began to 

cry. Carlos C. then spit on Emilie D.L.M. and the child.

Carlos C. testified and denied that he consumed alcohol 

excessively or that he committed any acts of domestic violence.

Family Law Court Decision

Following the hearing, the family law court issued a 

comprehensive written decision. The court found many of Emilie 

D.L.M.’s accounts of incidents of domestic violence and emotional 

abuse credible, but others not. The court also found that Carlos 

C. consumed alcohol excessively and frequently and that Emilie 

D.L.M. consumed alcohol excessively as well. The court expressly 

found that Carlos C. was not credible regarding the extent of his 

alcohol consumption, his denial of the domestic violence 

incidents, and his denial of his emotional abuse of Emilie D.L.M.

in the children’s presence.

The family law court then concluded that Emilie D.L.M.

established by clear and convincing evidence that return of the 

children to Carlos C.’s custody in Chile presents a grave risk to 

their physical and psychological well-being. Citing the Chilean 
6

Independence Day incident, the court concluded that Carlos C.

“did not seem to be able to control his behavior in front of the 

children, particularly when drinking.” The court also pointed out 

that Carlos C. denied that he drank alcohol excessively and it 

inferred that he would continue to drink excessively and expose 

the children to a grave risk of harm: “If the children are returned 

to [Carlos C.] at this time, there is no effective way to monitor 

[his] actions with the children or enforce the orders. For all of 

these reasons, the court cannot find that ameliorative measures 

will eliminate the grave risk to the children.”

Carlos C. appeals and contends that the family law court 

erred by not adequately considering ameliorative measures that 

might allow for the children’s return to Chile.

DISCUSSION

Carlos C. argues that the family law court did not consider 

“the full panoply of arrangements” that would safeguard the 

children in his care in Chile. (Blondin v. Dubois (1999) 189 F.3d 

240, 242 [trial court should consider options under foreign law 

that would protect the repatriated child].)

The Hague Convention provides a legal mechanism for the 

prompt return of a child taken by one parent across international 

borders in violation of the other parent’s custodial rights. 

(§ 9001; Abbott v. Abbott (2010) 560 U.S. 1, 9.) A petitioner under 

the Hague Convention bears the burden of proving the child’s 

wrongful removal or retention by a preponderance of the 

evidence. (§ 9003(e)(1).) If the petitioner succeeds in showing a 

wrongful removal, the Hague Convention requires repatriation of 

the child to its county of habitual residence unless an exception to 

repatriation exists. (§ 9003(e)(2)(A).) One exception is that the 

child’s repatriation presents a grave risk of physical or 
7

psychological harm to the child. (Monasky v. Taglieri (2020) 589 

U.S. -. - [206 L.Ed.2d 9, 22].) This exception must be established 

by clear and convincing evidence. (§ 9003(e)(2)(A).)

There exists a judicial exception, however, to the “grave 

risk of harm” exception. The trial court may order the return of a 

child despite a finding of grave risk of harm if ameliorative 

measures by the parents or authorities can reduce the grave risk 

of harm. (Saada v. Golan (2d Cir. 2019) 930 F.3d 533, 539.) The 

court exercises its discretion in determining the existence of and 

effectiveness of ameliorative measures. (Acosta v. Acosta (8th 

Cir. 2013) 725 F.3d 868, 877.) The determination whether 

enforceable ameliorative measures exist in a particular case is 

“’inherently fact-bound’” and the petitioner urging the measures 

bears the burden of proof. (Simcox v Simcox (6th Cir. 2007) 511 

F.3d 594, 606 [ameliorative measures viewed skeptically in cases 

involving abusive spouse]; Maurizio R. v. L.C. (2011) 201 

Cal.App.4th 616, 639.)

As ameliorative measures, Carlos C. provided evidence at 

trial that Chilean laws punish acts of domestic violence and that 

Chilean courts protect domestic violence victims through 

protective orders. The family law court properly found, however, 

that these ameliorative measures would be ineffective here 

because Carlos C. refuses to acknowledge his excessive drinking 

or domestic violence. In the context of a dependency action, the 

court in In re Gabriel K. (2012) 203 Cal.App.4th 188, 197, 

observed that “[o]ne cannot correct a problem one fails to 

acknowledge.” Even following his written promise to forbear 

from alcohol consumption during visitation with his children, 

Carlos C. could not keep his promise. Given Carlos C.’s failure to 

acknowledge his excessive drinking and acts of domestic violence,
8

as well as his repeated acts of driving while intoxicated, there are 

no ameliorative measures that will mitigate the grave risk of 

harm to his children. (Simcox v. Simcox, supra, 511 F.3d 594, 

606 [collecting decisions where courts have been skeptical of 

ameliorative measures in cases involving spousal abuse].) It is a 

reasonable inference from the evidence that Carlos C. will 

continue to drink to excess and drive while intoxicated, thus 

exposing his children to a grave risk of harm. Carlos C. has not 

borne his burden of establishing other ameliorative measures 

that would protect the children from his excessive drinking and 

abusive behavior. 

The order is affirmed. 

NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

YEGAN, J.

PERREN, J.
9

Gayle L. Peron, Judge

Superior Court County of San Luis Obispo

______________________________

Comstock & Wagner, Stephen A. Wagner for Appellant.

James Alex Karagianides for Respondent.