February 1, 2022 [Canada] [Habitual Residence] [Petition granted]
In Nowlan v Nowlan, Not Reported in Fed. Rptr., 2022 WL 34141 (4th Cir, 2022) Nina Lynn Nowlan appealed the district court’s order granting Bryce Gerald Randall Nowlan’s Petition for Return of the Child under the Hague Convention on the Civil Aspects of International Child Abduction. The court determined that the Nowlans’ child, AEN, was a habitual resident of Canada when Nina took AEN to Virginia. The court further determined that Nina did not show by clear and convincing evidence that AEN would be in grave risk of harm if AEN was returned to Canada to live with Bryce. The Fourth Circuit affirmed in an unpublished opinion. It noted that a child’s habitual residence is a mixed question of law and fact. Monasky v. Taglieri, 140 S. Ct. 719, 730 (2020). The first issue is whether the district court identified “the governing totality-of-the-circumstances standard.” The second issue involves answering a factual question: “Was the child at home in the particular country at issue.” Its review of the district court’s decision was for clear error. It concluded that the district court applied the correct legal standard and did not clearly err in determining that AEN’s habitual residence was Canada when Nina took AEN to Virginia. the district court did not err in determining that Nina did not prove by clear and convincing evidence that AEN would be in grave risk of harm if the child was returned to Canada. See Miller v. Miller, 240 F.3d 392, 402 (4th Cir. 2001) (stating burden of proof). It affirmed for the reasons stated by the district court. See Nowlan v. Nowlan, No. 5:20-cv-00102-TTC (W.D. Va. June 10, 2021).
December 4, 2021
[Israel][Federal & State Judicial Remedies][Summary judgment][Grave Risk of harm] [Petition granted]
In Velozny v Velozny, 2021 WL 5567265 (2d Cir.,2021) the Second Circuit affirmed a judgment of the United States District Court for the Southern District of New York (Daniels, J.), granting Petitioner-Appellee Nir Velozny’s motion for summary judgment and petition to return the children R.V., N.V., and E.V. to Israel .
On appeal Ms. Velozny challenged the district court’s order and judgment to the extent that it declined to apply the grave risk of harm exception, as well as the district court’s discretionary decision declining to apply the mature child exception. Ms. Velozny also challenged the district court’s use of expedited proceedings and its decision limiting Ms. Velozny’s ability to submit certain evidence.
The Second Circuit held that the district court did not err in holding expedited proceedings or in declining to hear testimony from certain witnesses or interview the elder two children in camera. Its decision to hear two days of live testimony to supplement the evidence filed along with the summary judgment papers was in keeping with the Hague Convention’s explicit emphasis on expeditious judicial resolution.
The Court held that the district court did not err when declined to interview R.V. and N.V. in camera, because both parties filed affidavits from their experts based on extensive interviews with both children, among other evidence. As the district court explained, “I am hesitant to put the children through [in camera interviews] after having gone through hours and hours with the psychologist. ... I don’t see that there is any significant additional evidence that would be determinative of this case given the complete examination done by the experts and their full reports on these issues.” In addition, the district court properly declined to hear additional live testimony as duplicative or immaterial to the disposition of the case.
The Second Circuit held that district court also did not err in its analysis of the grave risk of harm defense. This exception must be applied narrowly to avoid “frustrat[ing] a paramount purpose of [the Hague Convention]—namely, to ‘preserve the status quo and to deter parents from crossing international boundaries in search of a more sympathetic court.’ ” Blondin II, 189 F.3d at 246 (quoting Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir. 1993)). The district court properly found that the grave risk exception did not apply based on the undisputed facts. As the district court pointed out, “as late as August 26, 2019, approximately one month before her removal of the children, [Ms. Velozny] was willing to let her children travel unaccompanied to Israel twice a year and be alone with their father.” In addition, the district court properly found that the undisputed facts with respect to the alleged risks from exposure to spousal abuse, physical or emotional abuse of the children, and petitioner’s drug use did not warrant application of the grave risk exception. The district court also considered potential ameliorative measures, noting that (1) Ms. Velozny “has not established that an Israeli court could not provide adequate protection for the children during any divorce or custody proceedings,” and (2) “the effect of this decision is only to order the return of the children to Israel,”. The district court expressly noted the undisputed fact that “[t]he children and [Ms. Velozny] are not required ... to live with [Mr. Velozny] again, and the parties are free to devise their own living and custody arrangements or seek the intervention of an Israeli court.” Thus, the district court did not err in finding that the grave risk of harm exception did not apply.
The Court also found that district court did not err in declining to apply the mature child exception. the district court noted that the parties agreed that E.V., the youngest, was too young to have her views considered. Then, after discussing R.V.’s and N.V.’s opinions on returning to Israel, the district court found that R.V. only preferred to stay in the United States (but did not object to returning to Israel) and N.V.’s statements may have constituted an objection to returning to Israel. The district court then stated that, even assuming both R.V. and N.V. were mature enough to have their views considered and that N.V.’s view constituted an objection within the meaning of Article 13, it would still decline to apply the mature child exception in order to keep all three children together. Such a decision fell well within the district court’s discretion in Hague Convention proceedings. See Blondin IV, 238 F.3d at 166.
November 12, 2021
[United Kingdom][Federal & State Judicial Remedies][Enforcement][Younger Abstention]
In Dawson v Dawson, 2021 WL 5232251 (10th Circuit, 2021) Petitioner Clive Edward Dawson appealed from the district court’s order dismissing with prejudice his petition for relief under the Hague Convention. The 10th Circuit vacated the judgment of the district court and remanded with directions to dismiss Dawson’s petition without prejudice.
Dawson was a citizen of the United Kingdom. Respondent Dylla was a citizen of the United States. Dawson and Dylla met in the United States and were married in New Mexico on September 18, 2011. At the time of their marriage, Dawson was working as an information technology consultant and Dylla was an attorney. At some point after they were married, Dawson and Dylla moved to the United Kingdom. The couple’s daughter, R., was born in the United Kingdom on April 12, 2013. The couple separated on July 10, 2015. Following the separation, Dylla informed Dawson that she was interested in relocating to the United States with R. Dawson opposed the idea of R. living in the United States with Dylla. On January 11, 2016, a family court in Manchester, England issued a custody order that determined, in pertinent part, that it was in R.’s best interests to live with Dylla in the United States. The custody order also, however, granted Dawson parenting time on at least three occasions per year, with two of those occasions to occur in the United States and one to occur in the United Kingdom. . The two annual periods of parenting time in the United States were to each be between three and four weeks in duration, and the single period of parenting time in the United Kingdom was to be for a minimum of two weeks. In addition, the Manchester family court ordered that Dylla and Dawson would alternate having custody of R. at Christmas time, and it directed Dylla to make R. available for “Google Hangouts” with Dawson for five to fifteen minutes every other day (and vice-versa during the periods when R. was in Dawson’s custody). Lastly, the Manchester family court directed Dylla to register the custody order in Colorado. In early 2016, Dawson registered the Manchester family court’s custody order in Elbert County, Colorado, by filing a petition in the District Court for Elbert County, Colorado (the state court) pursuant to Colo. Rev. Stat. § 14–13–305.
On January 28, 2021, Dawson initiated these federal proceedings by filing a pro se petition against Dylla seeking expedited enforcement of the Manchester family court’s January 11, 2016 custody order pursuant to the Hague Convention and ICARA. On March 23, 2021, the district court conducted a telephonic status conference and heard arguments from Dawson and Dylla. On April 19, 2021, the district court issued an order dismissing Dawson’s petition with prejudice. The order concluded that the Hague Convention and ICARA were inapplicable because “[t]he evidence establish[ed] that there ha[d] been no abduction or wrongful removal of the parties’ child,” and, instead, that “Dylla brought R[.] to the U.S. in 2016 with the express permission and order of the family court in Manchester, England,” and “[t]he child’s habitual residence has been in the U.S. and in particular in Colorado, since that time.” Id. at 145. The order further stated: Final judgment was entered in the case on April 19, 2021. After filing an unsuccessful motion for new trial, Dawson appealed to this court.
Dawson argued in his appeal that the district court erred in dismissing his action. Dawson did not claim that R. was internationally abducted or wrongfully retained by Dylla, nor did he claim that R. should be returned to the United Kingdom for custody proceedings. Dawson sought to enforce the rights of custody and access that were granted to him by the Manchester family court’s January 11, 2016 custody order. There is a circuit split regarding whether ICARA authorizes federal courts to entertain the type of access claim that Dawson sought to assert here, i.e., a claim seeking to secure the exercise of visitation rights that were previously afforded to him by the Manchester family court. See Ozaltin v. Ozaltin, 708 F.3d 355 (2d Cir. 2013) (concluding that ICARA expressly authorizes federal courts to hear access claims); Cantor v. Cohen, 442 F.3d 196 (4th Cir. 2006) (concluding that federal courts are not authorized under ICARA to hear access claims).
It was unnecessary to resolve that issue in this appeal because even assuming that ICARA authorizes federal courts to hear access claims, the district court in this case should have abstained from exercising jurisdiction over Dawson’s access claims pursuant to Younger v. Harris, 401 U.S. 37 (1971). Younger abstention applies when “(1) there is an ongoing criminal, civil, or administrative proceeding, (2) the state court provides an adequate forum to hear the claims raised in the federal complaint, and (3) the state proceedings involve important state interests.” Weitzel v. Div. of Occupational & Prof’l Licensing of Dep’t of Commerce, 240 F.3d 871, 875 (10th Cir. 2001) (quotation marks omitted). If these three requirements are met and no exceptions apply, a federal court must abstain from hearing the case. The record on appeal in this case indicates that all three requirements were met. The judgment of the district court was vacated and the matter remanded with directions to dismiss the petition without prejudice.
November 6, 2021
[Iceland][Habitual residence][Petition granted] In Matter of E.Z., and S.Z. v Zarak, 2021 WL 5106637 ( S.D. New York, 2021) the district court granted the Petition finding that the habitual residence of the two children was Iceland.
Petitioner Arnaldur Schram, a citizen of Iceland, and Respondent Tania Zarak, a citizen of Mexico, met in the summer of 2013 in New York City. They were married about two years later. The couple had two children in New York. Throughout their marriage, the couple was fairly transient, frequently relocating their home and their children. During the six years before the Petition was filed in this matter, the couple moved five times and lived for extended periods of time in four different cities. E.Z., born in 2014, lived for about four years in three different residences in New York where she was born, in Los Angeles for a year, then another eight months in New York, in Mexico for four months, and lastly, Iceland for about a year, until removed to New York by Respondent in July 2021. S.Z., born in 2019, lived for two months in Los Angeles where he was born, eight months in New York, four months in Mexico, and about a year in Iceland until he was likewise removed to New York by Respondent in July 2021. The family arrived in Iceland on August 1, 2020. E.Z. had already been an Icelandic citizen from 2015, shortly after his birth, and the parties obtained Icelandic citizenship for R.Z. and S.Z. when they arrived in August 2020. Petitioner’s parents, two brothers, their children, and his extended family live in Iceland. While living in Iceland, Respondent declared herself a nonresident of New York for tax purposes. Respondent stopped making maintenance payments for their New York apartment during her time in Iceland. The couple also took out a long-term car rental at Hertz and, in March 2021, purchased a car. In the spring and summer of 2021, the couple talked about plans to travel to Mexico for a family visit in connection with a reunion of Respondent’s family long scheduled for June 2021 in Mexico. Respondent’s family held a family reunion every two to three years and Respondent told Petitioner that she wanted to go to the summer 2021 reunion with the children. . During their conversations, the parties discussed that the trip to Mexico in June 2021 would be a temporary visit and that Respondent, E.Z., and S.Z. would thereafter return to their home in Iceland. When she left for Mexico, Respondent told Petitioner that she would return to Iceland after her trip. In fact, Respondent told several others that she would return to Iceland after her trip to Mexico. In late spring 2021, Respondent mentioned to Ms. Thorsteinsson that their children could visit summer camps in Iceland in August after Respondent returned from her vacation to Mexico. About two weeks before her trip to Mexico, Respondent told Mr. Pedersen that she was about to travel there for a family reunion and that she would then return to Iceland.. On June 15, 2021, Respondent texted a close friend of hers in Iceland, Jonas Moody, that “things are better,” that she was going to Mexico, and that she would be returning to Iceland around mid-July. There was no evidence reflecting that at any time Respondent indicated that she intended to abandon Iceland after she visited Mexico for the family reunion. However, on June 2, 2021, shortly before the anticipated departure to Mexico for the family reunion, Petitioner received an email from P.S. 9 indicating that the children were enrolled in the school in New York for the upcoming school year. This enrollment was done by Respondent without Petitioner’s knowledge or consent.. This revelation led to an argument between the parties and Petitioner started to suspect that by secretly enrolling the children at P.S.9, Respondent was planning to remove the children to New York after her upcoming trip to Mexico.. Ultimately, Petitioner agreed to let Respondent go to Mexico, but with only E.Z. and S.Z. He did this because he was afraid that, due to their deteriorating marriage, Respondent would take the children out of Iceland.
On June 17, 2021, Respondent flew from Iceland to Mexico with E.Z., S.Z., and the children’s nanny. The ostensible reason for the trip was for the family to visit Mexico to attend Respondent’s family reunion and thereafter return to Iceland. While in Mexico at this time, on June 20, 2021, Respondent wrote to a company that manages Airbnb properties in Reykjavik that her mother was coming to Iceland in August for a month and asked if apartments were available. Respondent testified that at this time she was still considering all her options. Sometime between June 20, 2021, and July 21, 2021, however, Respondent’s intent to return to Iceland apparently changed and, on July 21, 2021, Respondent traveled from Mexico to New York with E.Z. and S.Z. Petitioner became aware within about a week that Respondent was in New York with E.Z. and S.Z. The Court found that contrary to what Respondent now contended, the couple never changed their shared intent that, in the summer of 2021, the habitual residence of the children was Iceland. Rather, it was apparent that Respondent unilaterally decided to remove E.Z. and S.Z. to New York, rather than return to Iceland as she had told Petitioner and many of their friends she would do.. It appeared that Respondent removed the children and took them with her to New York perhaps due to the escalating marital difficulties. She offered no explanation whatsoever of how or why she ended up in New York in July 2021 with two of the couple’s three children.
On the same day she arrived in New York, Respondent filed an action for divorce in Supreme Court, New York County. That same day, Respondent filed an Emergency Order to Show Cause seeking, among other things, a temporary restraining order for interim sole custody of the children and for Petitioner to return R.Z. to New York. Justice O’Neill Levy denied the application. On August 2, 2021, Petitioner filed custody proceedings in Iceland. On August 13, 2021, Petitioner filed a petition under the Hague Convention, seeking the return of E.Z. and S.Z. to Iceland.
The District Court observed that Second Circuit has not defined the term, but has instructed that in determining “habitual residence,” district courts should apply a two-part test: First, the court should inquire into the shared intent of those entitled to fix the child’s residence (usually the parents) at the latest time that their intent was shared. In making this determination the court should look, as always in determining intent, at actions as well as declarations. Normally the shared intent of the parents should control the habitual residence of the child. Second, the court should inquire whether the evidence unequivocally points to the conclusion that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents’ latest shared intent. Hofmann v. Sender, 716 F.3d 282, 291–92 (2d Cir. 2013) (quoting Gitter, 396 F.3d at 134); see Saada v. Golan, 930 F.3d 533, 539 (2d Cir. 2019).
Recently, the Supreme Court clarified that “a child’s habitual residence depends on the totality of the circumstances specific to [a given] case.” Monasky v. Taglieri, 140 S. Ct. 719, 723 (2020). The Court noted that “locating a child’s home is a fact-driven inquiry,” and “courts must be sensitive to the unique circumstances of the case and informed by common sense.” Id. at 727 (internal quotation marks omitted). Accordingly, “[b]ecause children, especially those too young or otherwise unable to acclimate, depend on their parents as caregivers, the intentions and circumstances of caregiving parents are relevant considerations. No single fact, however, is dispositive across all cases.” Id. “In other words, the parents’ last shared intent is a relevant consideration, but it is by no means dispositive of the habitual residence inquiry.” Grano v. Martin, 443 F. Supp. 3d 510, 535 (S.D.N.Y. 2020), aff’d, 821 F. App’x 26 (2d Cir. 2020). “[A] wide range of facts other than an actual agreement, including facts indicating that the parents have made their home in a particular place, can enable a trier to determine whether an infant’s residence in that place has the quality of being ‘habitual.’ ” Monasky, 140 S. Ct. at 729. “The bottom line: There are no categorical requirements for establishing a child’s habitual residence – least of all an actual-agreement requirement for infants.” Id. at 728. In instructing courts to look at the totality of the circumstances, the Supreme Court has provided a nonexclusive list of facts the Court can consider: “a change in geography combined with the passage of an appreciable period of time,” “age of the child,” “immigration status of child and parent,” “academic activities,” “social engagements,” “participation in sports programs and excursions,” “meaningful connections with the people and places in the child’s new country,” “language proficiency,” and “location of personal belongings.”. It is the petitioner’s burden to “establish[ ] by a preponderance of the evidence a child’s habitual residence at the time of the contested removal.” Guzzo v. Cristofano, 719 F.3d 100, 107 (2d Cir. 2013).
The Court began its analysis with an evaluation of the shared intent of the parties. It is the intent of the parents “at the latest time that their intent was shared” that is relevant to a determination of habitual residence. Gitter, 396 F.3d at 134. This inquiry in turn involves two questions: whether the parents formed a shared, “settled intention” to “abandon” the child’s previous habitual residence, id. at 132, and whether the parents “have mutually intended that the child acquire a new habitual residence” in a new location, id. at 133; accord Berezowsky v. Ojeda, 765 F.3d 456, 468 (5th Cir. 2014) (courts “usually [ ] try to determine when the parents last had a shared plan regarding their child’s future[ ] and what that plan entailed”). A settled intention to abandon a prior habitual residence need not be expressly declared “if it is manifest from one’s actions; indeed one’s actions may belie any declaration that no abandonment was intended.” Mozes, 239 F.3d at 1075. “Often parents will not agree about what their shared intentions were once litigation is underway, and so we must take account of the parents’ actions as well as what they say.” Norinder v. Fuentes, 657 F.3d 526, 534 (7th Cir. 2011). Moreover, “one need not have this settled intention at the moment of departure; it could coalesce during the course of a stay abroad originally intended to be temporary.” Mozes, 239 F.3d at 1075.
The Court concluded that the family intended to abandon New York when they moved to Iceland in August 2020. The inquiry here was not straightforward because, throughout their marriage, the parties were indecisive with respect to their permanent long-term plans and both parties were in agreement that the decision to move to Iceland was not meant to be a definitive plan to move to Iceland permanently. However, although “[d]etermining intent when the parents disagree about their child’s habitual residence is an Augean chore[,] ... it is necessary to look beyond the subjective intent of the parents to the objective manifestations of that intent.” Armiliato, 169 F. Supp. 2d at 237. Here, the objective facts surrounding the parties’ move to Iceland supported the Court’s finding of a shared intent to abandon New York indefinitely when the couple moved its family to Iceland and set down roots in Iceland. The Court found that once the couple decided to move to Iceland, their shared intent was to remain there indefinitely, though not necessarily permanently. Grano, 443 F. Supp. 3d at 537 (finding that the child’s habitual residence was where the family intended to relocate indefinitely). The Court found credible Petitioner’s candid explanation that they intended to stay for a few years, “see how it goes,” and see if they would have a better life there. While the couple left the door open to returning to the United States or elsewhere at some point, at the relevant time when Respondent took the children from Iceland under the pretext of visiting family in Mexico, clearly the family’s home was Iceland. Mozes, at 1077 (even if “the petitioning parent had earlier consented to let the child stay abroad for some period of ambiguous duration[,] [s]ometimes the circumstances surrounding the child’s stay are such that, despite the lack of perfect consensus, the court finds the parents to have shared a settled mutual intent that the stay last indefinitely”); see also Koch v. Koch, 450 F.3d 703, 713 (7th Cir. 2006); Ruiz v. Tenorio, 392 F.3d 1247, 1253 (11th Cir. 2004).
This shared intent was not only supported by some of Respondent’s messages to her friends, but also the parties’ “objective manifestations of that intent” in planning their move and once they arrived in Iceland. Other facts supported the conclusion that the parties made Iceland the habitual residence of their family, including E.Z. and S.Z., when they moved to Iceland in the summer of 2020. Respondent began taking Icelandic language lessons. The couple signed E.Z. up for extracurricular activities in Iceland including music lessons, karate, soccer, basketball, and a swimming class.. The parties registered E.Z. at a gymnastics club for the 2021–2022 school year. The couple took steps to enroll E.Z. in school in Iceland for the 2021–2022 school year. On June 10, 2021, only one week before her trip to Mexico, Respondent emailed Landakotsskoli about enrolling E.Z. into both violin and piano lessons. In June 2021, Petitioner and Respondent also enrolled S.Z. in school in Iceland. The shared intent of the parties to make Iceland the family’s habitual residence when they moved there in 2020 was also supported by a comparison with the objective facts surrounding the family’s other relocations. As such, the Court found that the parties had a shared intent in the fall of 2020 to abandon New York and to establish a new habitual residence for themselves and the children in Iceland.
The Court pointed out that under Monasky, the parties’ last shared intent is not, in and of itself, dispositive of what the “habitual residence” of E.Z. and S.Z. was at the time they were removed to New York. The conclusion that the family’s habitual residence was Iceland at the time the two children were removed by Respondent is also strongly supported by the totality of the evidence set forth above — i.e., objective facts suggesting that E.Z. and S.Z. were at home in Iceland. As the Supreme Court instructs, at bottom, the habitual residence inquiry is designed simply to ascertain where a child “is at home[ ] at the time of removal or retention.” Monasky, 140 S. Ct. at 726. While intent is helpful to that determination, so too are the objective facts regarding where the child actually lives. Not only do the couple’s actions while in Iceland suggest that their intent was to live there for an indeterminate amount of time, but relevant facts also suggest that E.Z. and S.Z. were at home in Iceland when Respondent removed them to New York. To the extent that S.Z. may have been too young to acclimate to his new environment in Iceland, it would only put more weight on the Court’s conclusion that the parents’ last shared intent was to make Iceland the family’s habitual residence. See Guzzo, 719 F.3d at 109 n.7. Nevertheless, the facts here supported the conclusion that both E.Z. and S.Z. had acclimated to and were at home in Iceland. E.Z. and S.Z. were citizens of Iceland. E.Z. was attending school in Iceland and had several friends there. She also had an active social life, which included playdates and sleepovers with the three or four friends she made in Iceland.. While in Iceland, she attended birthday parties her friends’ hockey classes, extracurriculars such as music lessons, karate, soccer, and basketball, and ice skating and swimming classes. She also enjoyed family and social activities, including visiting museums and zoos, and sight-seeing some of Iceland’s scenic natural attractions. S.Z., only about two years old at the time, had also begun to socialize in Iceland with other children. And he participated in family activities, went on family outings, and visited along with his parents and siblings with Petitioner’s parents, brothers, and their cousins.
The Court found that Petitioner has proven by a preponderance of the evidence that E.Z. and S.Z. were habitual residents of Iceland at the time Respondent removed them to New York. Respondent did not contest that Petitioner had otherwise established the other two elements of his claim under the Convention. The petition was granted.
October 22, 2021
[Spain] [Petition granted][Grave risk of harm][Discovery] Reversed for abuse of discretion]
In Colchester v Lazaro, --- F.4th ----, 2021 WL 4929601 (9th Cir., 2021) the child’s father sought the return of the child to Spain. The mother argued that returning the child to her father, who she alleged had abused both her and her baby, would present a grave risk of psychological or physical harm to the child, and a defense under Article 13(b) of the Convention applied. The district court granted the petition for the return. The Fifth Circuit held that the district court abused its discretion in denying Lazaro’s application for a meaningful psychological examination of S.L.C. which resulted in actual and substantial prejudice to Lazaro, since there was a reasonable probability that ordering the exam would have changed the result at trial. The court’s denial of that examination therefore constituted reversible error. It vacated the order and remanded the matter to the district court for appointment of a psychologist and a new trial
The Court pointed out that the Hague Convention’s central operating feature is the return remedy. Where a parent files a petition for return alleging that a child under the age of 16 was wrongfully removed or retained within the last year, “the country to which the child has been brought must ‘order the return of the child forthwith,’ unless certain exceptions apply.” Among those exceptions is the “grave risk” defense: Article 13(b) of the Convention provides that “the judicial ... authority ... is not bound to order the return of the child if the person ... which opposes its return establishes that ... there is a grave risk that his or her return would expose the child to physical or psychological harm or would otherwise place the child in an intolerable situation.” Convention, art. 13(b), 19 I.L.M. at 1502. This “grave risk” defense reflects the proposition that “the remedy of return ... is inappropriate when the abductor is a primary caretaker who is seeking to protect herself and the children from the other parent’s violence.” A respondent parent can establish a grave risk of harm from abuse “where the petitioning parent had actually abused, threatened to abuse, or inspired fear in the children in question.” Ermini v. Vittori, 758 F.3d 153, 164 (2d Cir. 2014). Spousal violence may also “establish a grave risk of harm to the child, particularly when it occurs in the presence of the child.” The grave risk exception is narrowly drawn. ICARA requires that a respondent must establish the Article 13(b) grave risk defense by clear and convincing evidence. And even when the respondent establishes that a grave risk of harm exists, the court may still order the child’s return if it determines there are ameliorative measures that would “allow both the return of the child[ ] to [his or her] home country and [the child’s] protection from harm.”
S.L.C. was the now-six-year-old, U.S.-citizen daughter of Appellant Jewel Lazaro, who resided in or around Seattle, WA, and Appellee Seth Colchester, who resided in or around Barcelona, Spain. In January 2020, Colchester was given sole custody of S.L.C. by a Spanish court sitting in Barcelona. Lazaro, who lacked the resources to live in Spain fulltime, was visiting Colchester and S.L.C. in April 2020, as the COVID-19 pandemic erupted. According to Lazaro’s testimony at the bench trial below, during that visit Colchester often “screamed at and acted aggressively toward both her and S.L.C.” Lazaro testified about several specific instances of alleged abuse that occurred at the time, including: • Colchester grabbing S.L.C. by the arm and throwing her down the hallway, leading S.L.C. to cry and hide in her room with Lazaro;• Colchester screaming at S.L.C. to “get downstairs, before I kick you downstairs” and then kicking S.L.C. down the stairs; • Colchester screaming at S.L.C. on various occasions for things like not folding his laundry, and sticking his finger in her face and making her cry; More generally, Lazaro also alleged that Colchester repeatedly screamed at five-year-old S.L.C. and compelled S.L.C. to do various chores, including his dishes and laundry. Following these incidents, Lazaro absconded with S.L.C. After fleeing Colchester’s home, she falsely told local Spanish police that she had legal custody of S.L.C. She also hired a Spanish forensic psychologist, Dr. Alicia Romero Fernandez, who conducted a preliminary examination of S.L.C. for approximately 90-minute via Skype and through a translator. After Lazaro was unable to find anywhere to stay in Spain because of the COVID-19 lockdown, she and S.L.C. fled to the United States using a passport for S.L.C. that Lazaro had previously claimed to have lost. Colchester then filed a Hague Convention application in Spanish court, filed a criminal complaint against Lazaro in Spain, and applied to the governments of Spain and the United States for S.L.C.’s return. The Spanish court eventually issued a warrant, based on an order declaring that Spain was S.L.C.’s habitual residence and that Lazaro’s removal of S.L.C. to the United States was wrongful under the Convention. Lazaro and S.L.C. eventually made it to Washington State.
Colchester filed the Hague Convention proceeding on July 20, 2020 in Snohomish County Superior Court, seeking S.L.C.’s return under the Convention and ICARA. On October 25, 2020, Lazaro’s counsel accepted service of the Hague Convention petition and removed this action to the Western District of Washington.
After Colchester belatedly requested expedited proceedings in mid-January, the district court held a status conference on January 27, 2021. Lazaro filed a pre-conference memorandum setting forth two limited discovery requests: a psychological examination of S.L.C. and limited document requests. At the conference, the court questioned why a psychological exam was required, since Dr. Romero had already examined S.L.C. in April 2020 by video. Lazaro’s counsel explained that the prior exam was a relatively short “initial screening” conducted through an interpreter and that the psychologist recommended a more extensive examination. Counsel explained that it would be difficult to continue working with the Spanish psychologist, not just because of the challenges posed by conducting an effective examination through a translator, but also because the nine-hour time difference would complicate efforts to complete the necessary exams and trial preparation on the expedited schedule Colchester had requested. Counsel argued that it was necessary to conduct an exam informed by the case law applicable in the district court, which Dr. Romero had not considered. Counsel explained that such psychological exams of children are routine in Convention cases and that Lazaro would develop reliable evidence that S.L.C. suffered psychological harm from Colchester’s alleged abuse of her and Lazaro, which would be “critical” to establishing the affirmative defense that S.L.C. faced a grave risk of psychological harm from living with Colchester. In support, Lazaro cited a recent Convention case in the Western District of Washington in which the judge declined to find that a grave risk of harm to the child existed, despite crediting the respondent mother’s allegations of severe domestic violence, because no psychological expert testified about the “potential for psychological harm to children in cases of spousal abuse.” Consequently, counsel argued that “we can’t rely solely on witness testimony, and the relatively cursory Spanish evaluation, to prove grave risk by clear and convincing evidence.” The Court then ruled, without explanation and even though there had been no discovery, that “we’re going to have no more discovery. I’m not going to order the evaluation to take place.” The court then set a four-day bench trial for February 22, 2021.
The bench trial, conducted over videoconference, started three weeks later. Lazaro attempted to present evidence of alleged domestic violence through fact witness testimony, medical records, and the testimony of Dr. Romero (the Spanish psychologist who had conducted a preliminary examination of S.L.C. over videoconference in April 2020). On the first morning of trial, the district court denied Lazaro’s offer for S.L.C. to testify in whatever manner the court deemed appropriate, such as in camera and ex parte. The court thus precluded the testimony of the person with the most personal knowledge of whether S.L.C. had been abused, namely, S.L.C. herself. At trial, Lazaro alleged other instances of Colchester abusing her and S.L.C. beyond those said to have occurred during her spring 2020 visit to Colchester’s Barcelona home (as previously referenced). These included: Throwing a bowl of soup at Lazaro’s head, leaving a bruise; Keeping Lazaro and S.L.C. “under [his] control financially ... ma[king] her beg him on a weekly basis just for money for food;” Kicking Lazaro in the stomach when she was three-months pregnant with S.L.C. and forcing her to sleep in the closet; Punching and screaming at Lazaro when she was seven-months pregnant, after she sat in the driver’s seat of his car, then throwing her to the ground, dragging her through the gravel, and leaving her on the side of the road for hours; Hitting Lazaro in the head with S.L.C.’s bag, in front of S.L.C.; Smashing Lazaro’s guitar, in front of S.L.C., after Colchester’s associate told him that Lazaro was out with a friend; Shoving Lazaro into walls, on numerous occasions, in front of S.L.C.; Slapping Lazaro and ripping S.L.C. away, when she was breastfeeding S.L.C. rather than paying attention to Colchester; Throwing S.L.C. out of a first-floor kitchen window, after screaming at her about breakfast dishes, then locking S.L.C. outside until dinnertime without giving her food. Some of these incidents were corroborated with contemporaneous evidence, including text and photo messages exchanged with Colchester, emails to domestic violence organizations, and an audio recording, as well as testimony from cross examination of Colchester’s mother.
Dr. Romero testified at trial as a psychological expert in forensic evaluation of children. Her opinions were based entirely on her spring 2020 evaluation of S.L.C. Dr. Romero testified that she concluded there was “the possibility that [S.L.C.] [wa]s being abused by her father” because she “verbalized that she was scared of her father and that she had suffered physical abuse at the hand of the father.” She further testified that she did “not detect[ ] any indication that [S.L.C.] had been manipulated,” and that she did not discern that Lazaro was affected by any “pathology.” Finally, she testified as to the developmental risks that are created when an abusive parent obtains sole custody of a child. On cross examination, Dr. Romero acknowledged that there were limitations to her opinion, including that she was not able to do an in-person evaluation and that she was unable to spend time alone with S.L.C.,and explained that they were due to the need to respond to the “emergency situation” presented by Lazaro’s flight from Colchester’s alleged abuse and the COVID-19 lockdown measures in place at the time of her examination.
The district court issued a five-page order the day after the trial concluded. The order begins by noting that it was undisputed that Lazaro’s removal of S.L.C. from Spain was unlawful under the Convention and that S.L.C.’s habitual residence (not challenged on appeal) was Spain and Lazaro had not presented clear and convincing evidence that returning S.L.C. to Colchester’s custody in Spain would subject her to a grave risk of physical or psychological harm. The Court ordered that S.L.C. be returned to Spain, provided that Colchester must facilitate “daily electronic communications” between S.L.C. and Lazaro, and that Lazaro be permitted supervised visits with S.L.C., limited to two days per month. The district court’s order did not discuss any of the testimony or evidence regarding Colchester’s alleged abuse. In lieu of setting forth its own findings of fact, the order stated that the court “adopts and incorporates paragraphs one through ten and thirteen of Mr. Colchester’s proposed findings of fact and conclusions of law.” Colchester’s ¶ 10 did not address any of the evidence Lazaro presented during the trial. Instead, ¶ 10 stated that “[m]any of the allegations of domestic violence and ‘drug trafficking’ that Ms. Lazaro has raised to attempt to use this ‘grave risk’ exception ... were raised and rejected” in prior U.S. and Spanish courts. The only three paragraphs drafted by the court itself did not address the substance of Lazaro’s grave risk defense.
Lazaro’s allegations that Colchester had abused both S.L.C. and herself formed the core of her Article 13(b) defense that returning S.L.C. to live with Colchester in Spain would subject S.L.C. to a grave risk of physical or psychological harm. Lazaro therefore argued to the district court at the pre-trial conference that credible testimony from a psychological expert who had examined S.L.C. would be essential to her case, and she sought an order permitting the necessary examination. The district court nonetheless denied her application, apparently because Lazaro could put on Dr. Romero, a Spanish psychologist who had interviewed S.L.C. over videoconference and through an interpreter for 90-minutes, even though, as Lazaro argued, Dr. Romero’s brief interview was no substitute for an in-depth interview by a psychological expert. (The court also rejected Lazaro’s offer for the judge to hear from S.L.C. herself, either on the stand or in camera and ex parte.) But after the trial, the district court indicated that it viewed Dr. Romero’s testimony as not credible because her opinion was based on an inadequate examination, the very reason Lazaro had sought a new exam before trial. The court subsequently held that Lazaro had failed to present clear and convincing evidence to establish her Article 13(b) defense.
Lazaro argued on appeal that the district court’s refusal to permit an in-depth psychological examination rendered the bench trial unfair. The Ninth Circuit agreed. It noted that Psychological evidence is particularly important in cases like this one, where the respondent (usually the mother) alleges that she fled with her children because the petitioner (usually the father) had abused her and/or her children. In these cases, psychological evidence can be important both because it can help the court determine whether the alleged abuse occurred and because it can aid the court in assessing the effect any abuse had on the child’s psychological health. Courts hearing Convention petitions thus routinely grant requests to order psychological examinations of children and credit testimony of psychological experts. The Seventh Circuit held in Khan v. Fatima that it was reversible error for a district court to refuse a respondent mother’s request for a psychological evaluation of her child where there was credible evidence that the petitioning father had physically and psychologically abused her in the child’s presence. 680 F.3d at 787–88. “The failure to allow psychological evidence,” along with inadequate findings of fact, made “the evidentiary hearing ... inadequate.”.
The Court held that as a threshold matter, the district court did not provide a reasoned decision when it denied Lazaro’s application for a psychological examination of S.L.C. The district court’s brief remarks were just one-sentence questions during argument, and when the court announced its decision, it provided no reasons. It impliedly misstated the record, by saying that “[w]e’re going to have no more discovery” when no discovery at all had yet taken place in this action. The transcript reflects no discussion of whether the parties could conduct limited discovery before an expedited trial, whether Lazaro’s proposed expert could conduct a psychological examination in the time allotted, or whether Colchester was entitled to his delayed request for expedition. It held that the district court’s wholesale denial of discovery in general and of the psychological examination in particular was unreasonable. This alone would suffice for remand. Moreover, it would have been unfair for the district court to first refuse the exam because Dr. Romero had already examined S.L.C. but later conclude that Dr. Romero’s examination was too brief to be reliable and that her testimony should never have been admitted because her opinion was based on an inadequate examination. Together, these rulings rendered the bench trial fundamentally unfair. This error was further compounded by the district court’s peremptory refusal to permit S.L.C. to testify herself. In effect, the district court’s rulings made it practically impossible for Lazaro to make out her case. Finally, the district court’s abuse of discretion in denying Lazaro’s application for a meaningful psychological examination of S.L.C. resulted in actual and substantial prejudice to Lazaro, since there is a reasonable probability that ordering the exam would have changed the result at trial. The court’s denial of that examination therefore constituted reversible error.
The panel also found the district court erred by failing to make findings of fact adequate to support its order returning the child to Spain. The only findings of fact supporting the post-trial return order were those portions of the petitioner’s proposed findings of fact that the district court simply adopted by reference. But the petitioner’s proposed findings were entirely conclusory and failed to engage with any of the evidence or testimony adduced at trial. Federal Rule of Civil Procedure 52 demands more. Reversal was warranted because, “[a]s a consequence [of the omitted findings], there was no way of knowing whether the district court’s decision in favor of [Colchester] on [Lazaro’s Article 13(b) defense] was based on resolution of the determinative facts in [his] favor; or whether the court erroneously concluded that [the alleged abuse] could, under no circumstances have ... implications” for Lazaro’s grave risk claim. The district court failed to comply with Fed. R. Civ. P. 52(a), because the order below did not resolve the factual disputes necessary to support its legal conclusions.
October 22, 2021
[Ireland][Habitual Residence][Petition granted] [Standard of Review]
In Harm v. Lake-Harm, --- F.4th, ---- 2021 WL 4900305 (5th Cir., 2021) the Fifth Circuit affirmed an order of the district court which concluded that the residence of the child in Ireland was only transitory and held that the district court correctly applied the totality-of-the-circumstances” analysis in determining the child’s habitual residence, in accordance with the United States Supreme Court’s most recent precedent on the Hague Convention in Monasky v. Taglieri, ––– U.S. ––––, 140 S. Ct. 719, 726, 206 L.Ed.2d 9 (2020).
Petitioner-Appellant Christopher Ryan Harm was a citizen of the United Kingdom and Northern Ireland, currently residing in the latter. Respondent-Appellee Meschiya Rachel Lake-Harm was a citizen of the United States, currently living in New Orleans, Louisiana. Mr. Harm alleged that their three-year-old child, SLH, was abducted by Ms. Lake-Harm from Ireland on May 21, 2019, when SLH was between one and two years old.
Ms. Lake-Harm was a professional musician. She met Mr. Harm while she was performing. At that time, Mr. Harm was living in Kilkenny, Ireland, and Ms. Lake-Harm was living in New Orleans. They both moved to New Orleans in November 2016 and were married in Mississippi that December. SLH was born in New Orleans on January 15, 2017. Because Ms. Lake-Harm frequently performed in Europe and because of “the political climate in the United States,” she and Mr. Harm discussed setting up and maintaining a “home base” in Ireland for long enough that Ms. Lake-Harm could obtain European Union residency. (The couple had also become concerned about crime in New Orleans after a drug addict broke into their van and left a used hypodermic needle under SLH’s car seat.) Both parents also wanted to give SLH the opportunity of living in the European Union and ultimately attending college there in the future if she so desired. Ms. Lake-Harm was interviewed by Offbeat Magazine, during which she explained that she could only live in New Orleans if she elected to live in the United States, but that she wanted to move to Europe so that SLH would have both United States and Irish passports.
The couple began to experience marital difficulties in February of 2018, after which they slept in separate bedrooms. Ms. Lake-Harm kept traveling to perform, however, and did not cease her efforts to obtain European Union residency for herself and SLH. In May of that year, after spending time in New Orleans to sell some of her belongings, Ms. Lake-Harm took SLH to Amsterdam. Along with Mr. Harm, she and SLH traveled in the Netherlands, Switzerland, and Denmark for her performances. In June 2018, Ms. Lake-Harm learned of sexual assault allegations against Mr. Harm, and the couple’s relationship further deteriorated. In July, two months after their arrival in Europe, the family moved to Ireland and rented the Woodview House outside of Cork, but Mr. Harm and Ms. Lake-Harm continued to sleep in separate bedrooms. Ms. Lake-Harm applied for and obtained an international driver’s license. She deposited her funds in an Irish bank account and closed her United States bank account. She then legally added “Harm” to her last name, even though her marriage continued to crumble. When Ms. Lake-Harm entered Ireland, she informed a customs official that Ireland was her new home. She also shared this information on her social media accounts. In March 2019, Ms. Lake-Harm moved out of the Woodview House and into a house in Wexford, Ireland, approximately three hours away from the Woodview House, where Mr. Harm still lived. Following Ms. Lake-Harm’s move to Wexford, the couple attempted to share custody of SLH. An equal division was not often followed, however, because of Ms. Lake-Harm’s frequent international travel, in which she would take SLH along. During that time, Ms. Lake-Harm expressed that Ireland was her “home base of operations.” The family traveled together to Italy in August of that year, but later Ms. Lake-Harm alone took SLH to the United States. Ms. Lake-Harm and SLH then traveled to Germany, where Mr. Harm was working at the time. While on that trip, the couple got into a dispute during which Mr. Harm attempted to take SLH from Ms. Lake-Harm forcibly. Ms. Lake-Harm became afraid: She told Mr. Harm that she wanted a divorce and that she could no longer co-parent with him. She consulted legal counsel in Ireland but was told that she could not file for divorce there because she was not a legal resident of Ireland. Ms. Lake-Harm continued to travel with SLH, but no longer with Mr. Harm. However, Ms. Lake-Harm went to Greece in November and left SLH with Mr. Harm for six days. That was the first time SLH had been cared for overnight by Mr. Harm alone. When Ms. Lake-Harm traveled to Moscow, she again left SLH with Mr. Harm. But, after returning, Ms. Lake-Harm learned that Mr. Harm had been bathing naked with SLH and had taught her words for the male genitalia. After that, Ms. Lake-Harm no longer felt comfortable leaving SLH alone with Mr. Harm for more than a few hours at a time. That December, after receiving permission from Mr. Harm, Ms. Lake-Harm took SLH to New Orleans to visit family and friends and to perform there. Ms. Lake-Harm and SLH returned to Ireland in mid-January 2019. SLH celebrated her January birthday in Ireland, but with no friends in attendance. (She had celebrated the same birthday with parties in New Orleans and Tucson prior to returning to Ireland.) With Mr. Harm’s permission, Ms. Lake-Harm continued to travel throughout Europe, accompanied by SLH. During that extended period of travel, SLH was in Ireland, together with Ms. Lake-Harm, for one-and-a-half weeks at the most. Early in May of 2019, Ms. Lake-Harm began planning the above-noted move from Woodview House to Wexford, Ireland. Then, on May 21, Ms. Lake-Harm took SLH to the United States, originally with Mr. Lake’s permission, planning to go to Tucson, Arizona and visit Ms. Lake-Harm’s parents there. However, the mother and child ended up traveling to New Orleans instead.
Mr. Harm then initiated the action in the Eastern District of Louisiana, claiming that Ms. Lake-Harm had abducted SLH, in violation of the Hague Convention. The district court ultimately held that SLH’s habitual residence was the United States, and that her residence in Ireland was transitory. In its oral opinion and order, the district court considered testimony and arguments from both sides. The court based its finding that SLH’s residence in Ireland was transitory partially on the fact that Mr. Harm had consented to all of SLH’s travels, including the “abduction” in May 2019. That consent, the district court noted, was buttressed by Mr. Harm’s knowledge that Ms. Lake-Harm maintained substantial ties to New Orleans and that SLH had been born there. The court also recognized that the couple had set up a base in Europe. The trial court then discussed in detail, month-by-month, Ms. Lake-Harm’s world-wide travel, almost always accompanied by SLH. The court noted that in every instance of travel, Mr. Harm consented to SLH going along with Ms. Lake-Harm. Testimony also established that, while in Ireland, SLH did not meet any friends or attend school. The court further noted that, when SLH was in Ireland, she was never there “for more than a couple of weeks” before again traveling with Ms. Lake-Harm. The court concluded that SLH’s ties to Ireland were “extremely limited.” The district court further found that Mr. Harm had not attempted to be in SLH’s life very much. The court also noted the instability in the couple’s marriage. Finally, the court summed up its holding by stating: “And now to say that [the couple] established habitual residence as a married couple and the parents of a minor child in Ireland under those circumstances would be absurd.”
The Fifth Circuit pointed out that the habitual-residence determination thus presents a task for factfinding courts, not appellate courts, and should be judged on appeal by a clear-error review standard deferential to the factfinding court. “Findings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court’s opportunity to judge the witnesses’ credibility.” “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” “Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” It found that while reasonable minds may disagree with the district court’s conclusion, that court made a plausible finding in light of the record as a whole, which it would not set it aside as clearly erroneous. It held that the district court’s determinations were plausible in light of the record as a whole. Despite the increase of SLH’s parents’ center of gravity in Ireland, it was obliged to follow the Supreme Court’s precedent in Hague Convention cases such as this one, keeping in mind the trial court’s unique position vis-á-vis the testimony of the witnesses and the other evidence, and conclude that it did not commit clear error in determining and weighing the operative facts of this case. Because that court determined, on the basis of all of the trial evidence, that SLH’s presence in Ireland was transitory, the United States remained her habitual residence and its law governed this case.
October 21, 2021
[Italy][Federal and State Judicial Remedies][ Rule 60(b) motion][Newly discovered evidence][Denied]
In Saada v Golan, Not Reported in Fed. Rptr., 2021 WL 4824129 (2d Cir.,2021) Respondent Narkis Aliza Golan, B.A.S.’s mother, appealed the District Court’s March 29, 2021 order and accompanying judgment denying her Rule 60(b) motion for relief from the District Court’s earlier May 5, 2020 order directing that B.A.S. be returned to Italy. Seeing no error in the District Court’s denial of Golan’s Rule 60(b) motion, the Court affirmed the March 29, 2021 order and the accompanying April 6, 2021 judgment.
In July 2018, Golan, a U.S. citizen, and B.A.S. (then two years old) travelled to the United States from Milan, Italy, where the two of them, along with Petitioner Isacco Jacky Saada, B.A.S.’s father and an Italian national, had been living. Though Golan and B.A.S., who had been born in Italy, were originally scheduled to return to Italy the next month, Golan decided to stay in the United States and move to a confidential domestic violence shelter in New York. In September 2018, Saada commenced this case by filing a petition before the District Court seeking B.A.S.’s return to Italy pursuant to the Hague Convention on the Civil Aspects of International Child Abduction. After a nine-day bench trial, the District Court concluded that B.A.S.’s “habitual residence was Italy. See Saada v. Golan, No. 18-CV-5292 (AMD) (LB), 2019 WL 1317868, at *15 (E.D.N.Y. Mar. 22, 2019) (“Saada I”), aff’d in part, vacated in part, and remanded, 930 F.3d 533 (2d Cir. 2019) (“Saada II”). While the District Court concluded that returning B.A.S. to Italy would expose him to a “grave risk of harm,” the psychological harm accompanying exposure to domestic violence perpetrated by Saada against Golan, it was satisfied that a series of “undertakings” by Saada, including his promises to stay away from Golan after she and B.A.S. returned to Italy and to visit B.A.S. only with Golan’s consent, were sufficient to “ameliorate the grave risk of harm to B.A.S. upon his repatriation to Italy.” The District Court ordered that B.A.S. be returned to Italy. On appeal, the Second Circuit agreed with the District Court’s habitual-residence determination, but concluded that the District Court erred in granting Saada’s petition because “the most important protective measures it imposed [we]re unenforceable and not otherwise accompanied by sufficient guarantees of performance.” Saada II, 930 F.3d at 537. It remanded the case and instructed the District Court to conduct further proceedings to determine the availability of alternative ameliorative measures.
The parties subsequently sought, and were granted, an Italian court order that, inter alia, required Saada to stay away from Golan, restricted Saada’s access to B.A.S., and ordered Saada to undergo certain psychological evaluations and counseling. In light of this development, on remand, the District Court again granted Saada’s petition, and also ordered Saada to pay Golan $150,000 to cover her and B.A.S.’s expenses upon their return to Italy. Saada v. Golan, No. 18-CV-5292 (AMD) (SMG), 2020 WL 2128867, at *5 (E.D.N.Y. May 5, 2020) (“Saada III”). On appeal, the Second Circuit affirmed the District Court’s judgment. Saada v. Golan, 833 F. App’x 829. 834 (2d Cir. 2020) (summary order) (“Saada IV”).
Soon after the Court issued a mandate returning this case to the District Court, on January 25, 2021, Golan filed a Rule 60(b) motion for relief from judgment, arguing that “newly discovered evidence” justified reconsideration of the Court’s order in Saada III. SeeFed. R. Civ. P. 60(b)(2). Golan offered what she claimed was the transcript of a November 2020 phone call between Saada, his father, and a rabbi, and to which Golan was surreptitiously listening, in which Saada purportedly told the rabbi that he did not trust Golan as a mother because “she bring[s] men[ ] to her place to have sex with her” and that he was in possession of a “picture of [B.A.S.] with different men[ ].” When asked by the rabbi how he knew what Golan was doing in her apartment, Saada responded, “I cannot tell you how I know, but I have proof[ ]” and that “[t]he lawyers who [inaudible] investigators ... so I know.” Golan argued that Saada’s November 2020 statements demonstrated that he violated a “court order.” Golan argued that Saada’s violation of the October 16, 2018 order cast doubt on Saada’s willingness to abide by Italian court orders. Saada explained that the “investigators” he referenced during the November 2020 phone call were hired by his counsel after a man, one Kfir Hazan, contacted Saada alleging that he had been romantically involved with Golan, that she was engaging in “high-risk” behavior around B.A.S., and that he now wished to offer damaging information about her. Saada’s attorneys likewise represented to the court that they had hired an investigator for the limited purpose of ensuring that B.A.S. was safe, and that the investigator had not disclosed the respondent’s address to Saada or his attorneys.
The District Court denied Golan’s motion. It declined to disturb its prior order on the basis of “vague statements,” and in light of “no other evidence to support [Golan’s] claim that [Saada] tried to find out where she lived during the pendency of the petition.” Saada V, 2021 WL 1176372, at *5. The District Court also pointed out that evidence demonstrated that Golan had sent Saada her address as early as April 2020 so that he could send things to B.A.S. It further concluded that Saada did not violate the District Court’s October 16, 2018 directive because it was Saada’s counsel that engaged the investigator. Ultimately, the District Court concluded that “[k]nowledge of the limited investigation that did take place would not have changed the outcome” of its order granting the petition because “it does not establish that [Saada] has violated an order of this Court or that the protections put in place in Italy will be insufficient ....”. Golan appealed the District Court’s denial of her Rule 60(b) motion.
The Second Circuit affirmed. It pointed out that it reviews a denial of Rule 60(b) relief for abuse of discretion. United States v. Int’l Bhd. of Teamsters, 247 F.3d 370, 391 (2d Cir. 2001). Rule 60(b) relief “is generally not favored” and granted only upon a showing of “exceptional circumstances.” The burden of proof rests on the party seeking the relief, and when the existence of “newly discovered evidence” forms the basis of a motion, the movant must demonstrate that (1) the newly discovered evidence was of facts that existed at the time of trial or other dispositive proceeding, (2) the movant must have been justifiably ignorant of them despite due diligence, (3) the evidence must be admissible and of such importance that it probably would have changed the outcome, and (4) the evidence must not be merely cumulative or impeaching.
In Douglas v Douglas, 2021 WL 4286555 (6th Cir., 2021) in late October 2017, Heath, an Australian man, contacted Nancy, an American woman, on a dating website. Heath lived in Curlewis, New South Wales (NSW), Australia, and Nancy lived in Boston, Massachusetts. Heath and Nancy began communicating via telephone in November 2017. The same month, the parties began planning for Nancy to visit Heath. Heath purchased a roundtrip ticket for Nancy to fly to Australia for “[a] few weeks” beginning in late December. Nancy left her associate-editor job in Boston, where she had worked since August 2016. The same company hired her to work remotely as a freelance editor. Nancy arrived in Australia on December 21, 2017. Upon her arrival, Heath gave her an American Express card with $7,000 and told her, “[L]ook, any time you want to go back, use that, go home, you don’t have to stay.” Shortly after Christmas, Heath proposed marriage, and Nancy accepted. The parties were married on February 10, 2018. Nancy moved into Heath’s home, and within a month, she became pregnant. The couple began arguing soon after their marriage. The arguments occurred “[e]very few days” and were “[s]evere.” Nancy testified that the “themes” of these arguments were “[t]hat [she] was disrespecting [Heath] and not submitting to [him].” Despite the parties’ marital strife, they attempted to build a life together in Australia. On June 6, 2018, Heath paid $7,000 to the Australian Department of Home Affairs to sponsor Nancy’s Permanent Partner Visa. Nancy obtained a debit card linked to Heath’s National Australian Bank account. On June 29, 2018, the parties signed a twelve-month lease for an apartment in Merewether, NSW. By October 2018, the parties began seeking marriage counseling. At the end of October, Heath told Nancy that he “[couldn’t] handle this” and stayed at a motel for the night.. Around the same time, he told Nancy to “get the F out” of the apartment. He then ran after her and she returned, telling him that she wanted a divorce. However, the couple did not divorce at that time. Nancy and Heath’s son, J.D., was born in Australia on November 4, 2018. Nancy’s mother flew to Australia for J.D.’s birth. On the morning of November 7, 2018, Heath and Nancy got into an argument. When Heath returned home from work, he told Nancy to “get out” of the apartment... Heath and Nancy had not lived together since November 7, 2018. On November 21, 2018, Nancy sent an e-mail to Heath stating: The marriage is over. I would like to return to America with [J.D.] Will you agree to this and sign his [Australian-passport application]? There can still be ways to see and spend time with [J.D.] .... This email confirms that we have officially separated as of today, 21/11/18. After separating from Heath, Nancy applied for child support. On December 3, 2018, a law firm representing Nancy wrote a letter to Heath informing him that Nancy “wishes to return to Michigan ... to live with her parents ... and seeks to also relocate [J.D.’s] residence to the United States.” On December 7, 2018, Heath sent Nancy an e-mail stating, “I understand that you really do not want me in your life anymore, and this really hurts.” On December 9, 2018, Heath wrote Nancy another e-mail stating, “you obviously aren’t coming back to me.”. Sometime between December 2018 and January 2019, Heath left the parties’ Merewether apartment and moved over three hours away, back to Curlewis. On December 13, 2018, Heath commenced a custody proceeding in federal circuit court in Australia. On December 15, 2018, Nancy wrote a letter to Heath: please sign [J.D.’s Australian-passport application] so I can go somewhere where I have support and people I know and a free place to stay. I need the space. If you want, I can show you my return ticket. if you really love me, you’ll let me go. As it turns out, Nancy had not purchased a return ticket to Australia, and Heath did not ask to see a return ticket. On December 24, 2018, Heath responded: OK nancy, Merry Christmas. Please take care of our little man.. On the back of his letter, Heath wrote: No conditions. No expectations. I will provide, love heath xo. Heath signed J.D.’s Australian-passport application. Also on December 24, 2018, Heath dismissed the custody proceeding he initiated earlier that month. In January 2019, Heath paid a child-support assessment. On January 11, 2019, Heath wrote a letter to Nancy stating: You are free to go home now. I am sorry for not getting these through to you earlier, but maybe the timing is just right? I don’t know. I want the best for you and [J.D.] and if that is back in America with your folks, then you have my blessing! Thanks for your patience with me as I learnt what it is to be a good Dad and friend. I have never had to sacrifice so much! Be blessed nancy! On January 30, 2019, Heath signed a letter authorizing J.D. to travel with Nancy to the United States. The next month, Nancy unilaterally withdrew her Permanent-Partner-Visa application.
On February 13, 2019, Nancy and J.D. flew to the United States. Nancy ended Heath’s child-support assessments. Since their arrival, Nancy and J.D. lived with Nancy’s parents in Michigan. Nancy filed for divorce in September 2019 and served Heath with divorce papers in Australia on October 3, 2019. Heath filed this petition for return of J.D. on May 14, 2020. Following discovery on the issue of J.D.’s habitual residence, Nancy filed a motion for summary judgment, arguing that there was no genuine dispute that J.D.’s habitual residence was the United States. The district court granted Nancy’s motion, concluding that immediately before the alleged wrongful retention, J.D.’s “habitual residence” was Michigan, not Australia. Heath appealed.
The Sixth Circuit affirmed. It reviewed de novo a grant of summary judgment, viewing all evidence in the light most favorable to the nonmoving party and drawing all reasonable inferences in the nonmoving party’s favor. The Court observed that child’s habitual residence depends on the totality of the circumstances specific to the case.” Monasky, 140 S. Ct. at 723. “A person can have only one habitual residence.” Simcox v. Simcox, 511 F.3d 594, 602 (6th Cir. 2007). In Monasky, the Supreme Court articulated several principles for determining habitual residence. The term “habitual” “suggest[s] a fact-sensitive inquiry, not a categorical one.” Monasky, 140 S. Ct. at 726. Habitual residence does not turn on the existence of an actual agreement or on any other categorical requirement. “The place where a child is at home, at the time of removal or retention, ranks as the child’s habitual residence.” A child’s residence in a particular country can only be considered “habitual” when “her residence there is more than transitory.” Id. “What makes a child’s residence ‘habitual’ is ... ‘some degree of integration by the child in a social and family environment.’ ” Moreover, [b]ecause locating a child’s home is a fact-driven inquiry, courts must be “sensitive to the unique circumstances of the case and informed by common sense.” For older children capable of acclimating to their surroundings, courts have long recognized, facts indicating acclimatization will be highly relevant. Because children, especially those too young or otherwise unable to acclimate, depend on their parents as caregivers, the intentions and circumstances of caregiving parents are relevant considerations. No single fact, however, is dispositive across all cases. Common sense suggests that some cases will be straightforward: Where a child has lived in one place with her family indefinitely, that place is likely to be her habitual residence. But suppose, for instance, that an infant lived in a country only because a caregiving parent had been coerced into remaining there. Those circumstances should figure in the calculus. And “[a]n infant’s ‘mere physical presence’ ... is not a dispositive indicator of an infant’s habitual residence[,] ... [b]ut a wide range of facts[,] ... including facts indicating that the parents have made their home in a particular place, can enable a trier to determine whether an infant’s residence in that place has the quality of being ‘habitual.’ ”
Heath’s complaint alleged that Nancy’s retention of J.D. became wrongful on October 3, 2019. Heath did not challenge the wrongful-retention date on appeal. The Court noted that one factor informing a young child’s habitual residence is the caregiving parents’ “intentions and circumstances.” Monasky, 140 S. Ct. at 727. Some evidence suggests that before J.D. was born, the parties may have intended to raise him in Australia: Nancy obtained a debit card linked to Heath’s National Australian Bank account; the parties signed a twelve-month lease for an apartment in Merewether; Nancy obtained an NSW driver’s license; the parties contemplated a ten-year plan to live in Australia; and Nancy applied for a Permanent Partner Visa. Other evidence, however, more strongly indicated that by the wrongful-retention date, the parties intended for J.D. to live in the United States. In October 2018, the parties got into an argument in which Heath told Nancy to “get the F out” of their apartment and Nancy told Heath that she wanted a divorce. Three days after J.D. was born, Heath exiled Nancy from the apartment again. The parties lived separately after that point. On December 3, 2018, a law firm representing Nancy informed Heath that Nancy wished to return to Michigan and relocate J.D.’s residence there. Heath’s e-mails from December 7 and 9, 2018 stated, “I understand that you really do not want me in your life anymore” and “you obviously aren’t coming back to me.” On December 24, 2018, in response to Nancy’s request for Heath to sign J.D.’s passport application, Heath replied, “OK nancy, ... Please take care of our little man.” On the back of the letter, Heath wrote, “No conditions / No expectations.” On the same day, Heath signed J.D.’s passport application and dismissed the custody proceeding he had initiated eleven days earlier. On January 11, 2019, Heath sent a letter to Nancy stating, “You are free to go home now. ... I want the best for you and [J.D.] and if that is back in America with your folks, then you have my blessing!” In a letter dated January 30, 2019, Heath authorized J.D. to travel with Nancy to the United States.
Heath argued that he wrote “No conditions / No expectations” “after Nancy’s promise to return,” and that this context creates an issue of fact as to the parties’ intent. Appellant’s Br. at 32–33. Heath testified that “No conditions / No expectations” meant he “didn’t want to put any expectation or conditions on her travel if she needed to go anywhere to see friends [or] family,” he “[did not] want to be a controlling husband[,] and [he did not] want to hold her back if she need[ed] to go anywhere.” R. 35-2, PID 274. Because we must draw all reasonable inferences in Heath’s favor, we take this testimony as true. See Fisher, 951 F.3d at 416. But even accepting this interpretation of the December 24th correspondence, other evidence in the record, including Heath’s January letters and the parties’ conduct, establish that by the wrongful-retention date, the parties intended for J.D. to live in the United States.
Another relevant consideration is the “degree of integration by the child in a social and family environment.” Monasky, 140 S. Ct. at 726 (quotation omitted). When Heath directed Nancy to leave their apartment, J.D. was three days old. For three months afterward, Nancy, her mother, and J.D. moved between rentals and other temporary housing. Heath moved over three hours away from the Merewether apartment. J.D. was not meaningfully integrated in any social or family environment in Australia; his residence there was merely transitory. In contrast, J.D. had lived in Michigan with his mother and maternal grandparents for over seven months by the wrongful-retention date. Thus, as of October 3, 2019, J.D. was “at home” in Michigan, not Australia.
September 16, 2021
[France][Habitual Residence] [Grave risk of harm] [Undertakings] In re ICJ--- F.4th ----, 2021 WL 4187853 (9th Cir.,2021)
In re ICJ--- F.4th ----, 2021 WL 4187853 (9th Cir.,2021) Kerry Jones, a British citizen, and his wife Cassandra Fairfield, a citizen of the United States, married and lived in France. In 2018, they had a daughter, ICJ, who resided with them, or one of them, in France until October, 2020. Then, after marital problems arose and Jones filed for divorce in France, Fairfield took ICJ to the United States, without the assent of Jones. Jones initiated this litigation under the Hague Convention. The Ninth Circuit held that the district court erred in denying Jones’s petition for ICJ’s return to France. It vacated the district court’s decision and remanded for further proceedings.
In an effort to expedite these proceedings in the district court, the parties agreed during a video hearing to present this case through documentary evidence rather than by calling witnesses. The documentary evidence included declarations by the parties which contradicted each other in numerous and material ways. The district court did not expressly resolve those material factual disputes.
Jones and Fairfield met online in 2013. At that time, Jones was fifty years old, a British citizen living in France; Fairfield was an eighteen-year-old high school student in the United States. Fairfield visited Jones several times in France. The couple eventually married in 2017. Their daughter ICJ was born in France in August 2018. In January 2020, Jones and Fairfield began talking about separating. The couple’s marital discord intensified when, in March 2020, Jones began working full time from their home due to the COVID-19 pandemic. According to Fairfield: Soon after Jones began working from home, she discovered him viewing child pornography. On another occasion, she caught Jones watching child pornography while ICJ was in the room. Fairfield further discovered that Jones had downloaded hundreds of files of child pornography. Jones denied all of this. He did, however, acknowledge his prior Texas conviction for possessing child pornography. Based on that conviction, the United States removed Jones, a British citizen, and has precluded him from returning. Fairfield asserted Jones never told her about this conviction and she only discovered it sometime after the couple separated. Jones contended Fairfield has known all along about his prior conviction. According to Fairfield, after she confronted Jones about his child pornography addiction, he “became aggressive” toward her throwing a glass at her that shattered near Fairfield and their child, tossing the child’s stroller out a window, flipping a table over, holding Fairfield down and screaming that she made him crazy and violent, and on one occasion raping her. Jones acknowledges throwing the glass, but denied that it shattered near either Fairfield or ICJ. He denied Fairfield’s other accusations of abuse and rape. Between April 24 and May 1, 2020, while the family was still living together, Jones numerous times threatened suicide if Fairfield left him. On May 1, 2020, after Fairfield asked Jones to move to another of their houses, Jones hung himself from a tree outside their home. He survived after Fairfield and several neighbors cut him down. While Jones spent two days recovering in the hospital, Fairfield and ICJ moved to another of the family’s properties. After Jones recovered from the suicide attempt, he “often” visited Fairfield and ICJ. With Jones’s permission, Fairfield took ICJ to visit Fairfield’s family in the United States in June 2020. When Fairfield and ICJ returned to France, in mid-July, they lived in a hotel and then at an Airbnb rental. During this time, Jones visited ICJ frequently and, with Fairfield’s consent, Jones kept ICJ overnight on several occasions. In late July 2020, Jones showed Fairfield a letter he threatened to send to her former employer in Washington, as well as the Spokane newspaper and the Washington State Patrol, accusing Fairfield of being a pedophile and mentally ill. Jones contended this was an attempt to convince Fairfield to be reasonable about the divorce proceedings. According to Fairfield, when she met Jones at a park on July 30 so Jones could play with ICJ, Jones threatened to blackmail Fairfield in order to take custody of ICJ.
Jones then filed for divorce in France and Fairfield took ICJ to northern France, about five hours away. Both Jones and Fairfield hired divorce lawyers; the French courts set a hearing in the divorce proceeding for November 17, 2020. According to Fairfield, in mid-August, Jones cut off all financial support for her and ICJ by draining the couple’s joint bank account. After that, Fairfield contended that she was forced to live with ICJ in homeless shelters. While Jones did not dispute that Fairfield and ICJ lived for a period of time in homeless shelters, he denied that he ever cut off Fairfield and ICJ financially and further asserts that Fairfield and ICJ could have lived at one of the couple’s properties. In mid-October, at her attorney’s urging, Fairfield revealed her and ICJ’s location. While negotiations for visitation were ongoing and less than three weeks before the first hearing scheduled in the French divorce proceedings, Fairfield left France with ICJ on October 29, 2020. At that time, it had been three months since Jones had seen ICJ, and two and one-half months since, according to Fairfield, Jones had cut off any financial support. Fairfield filed for divorce in Washington State on November 17, 2020. Jones initiated this litigation in the Federal District Court for the Eastern District of Washington under the Hague Convention on December 29, 2020, seeking ICJ’s return to France so French courts could determine custody of ICJ..
The Ninth Circuit held that there were three legal errors in the district court’s rulings that required it to vacate the district court’s decision and remand: (1) Assuming Jones cut off financial support for ICJ, the district court erred as a matter of law in determining that was sufficient to establish that Jones was not actually exercising his custody rights to ICJ because he cut off financial support for the child, and clearly and unequivocally abandoned the child, the showing required for deeming a parent not to be exercising custody rights. (2) The district court erred in declining to return ICJ to France based on a “grave risk” defense, without first considering whether there are alternative remedies available to protect the child and permit her return to France for the period of time necessary for French courts to make the custody determination. (3) The district court erred in relying in part on the pandemic to deny Jones’s petition because the record did not include any evidence addressing what specific pandemic related risk returning ICJ to France would present.
The Ninth Circuit held that the district court correctly determined that ICJ’s country of habitual residence was France, French law provided both Jones and Fairfield with the right to custody of ICJ, and Fairfield’s leaving France with ICJ breached Jones’s custody rights. Nevertheless, the district court ruled that Fairfield’s removing ICJ from France was not “wrongful” because at the time of removal Jones was not actually exercising his custody rights, in light of his failure to support ICJ financially. That was error. Federal circuit courts in the United States have consistently required a showing that a parent has clearly and unequivocally abandoned a child before ruling that that parent is not actually exercising his custody rights. The parties here agreed that this is the relevant legal standard. In applying this standard, courts “liberally find ‘exercise’ whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child.” Friedrich, 78 F.3d at 1065 (6th Cir.). Once [a court] determines that the parent exercised custody rights in any manner, the court should stop—completely avoiding the question whether the parent exercised the custody rights well or badly. These matters go to the merits of the custody dispute and are, therefore, beyond the subject matter jurisdiction of the federal courts. Jones, as the petitioning parent, had the initial burden of proving by a preponderance of the evidence that he was actually exercising his custody rights to ICJ at the time Fairfield removed the child from France. See22 U.S.C. § 9003(e)(1). Jones’s burden, however, was “minimal,” Asvesta, 580 F.3d at 1018, and he clearly met it here. The record indicated that, after Jones and Fairfield separated in May 2020, Jones saw ICJ often, both before and after Fairfield took ICJ to visit Fairfield’s family in the United States. Jones kept ICJ overnight on several occasions, with Fairfield’s consent. Jones did not see ICJ after July 30, but it is undisputed that was because Fairfield took ICJ to northern France and did not reveal their whereabouts to Jones. Jones presented evidence, including text messages and emails, indicating that he frequently asked Fairfield to let him see ICJ, to no avail. When Fairfield revealed her location, in mid-October 2020, Jones attorney directed him not to try to see the child, while the divorce attorneys negotiated visitation. Because Jones made the required minimal showing that he was exercising his custody rights, the burden shifted to Fairfield, as the party opposing returning ICJ to France, to prove by a preponderance of the evidence that Jones was not actually exercising his custodial rights. Even accepting Fairfield’s disputed assertion that Jones cut off financial support to Fairfield and ICJ for two and one-half months, Fairfield had not shown that Jones clearly and unequivocally abandoned ICJ. The test Fairfield had to meet to show that Jones had clearly and unequivocally abandoned ICJ is “stringent.” Baxter, 423 F.3d at 370 (3d Cir.) (citing Friedrich, 78 F.3d at 1065–66 (6th Cir.)). Even assuming that Jones cut off Fairfield and ICJ financially for two and one-half months after Fairfield took ICJ to northern France, that was insufficient by itself to establish that Jones clearly and unequivocally abandoned ICJ, in light of Jones’s continuous efforts to see the child. Because that was the only reason advanced by the district court to support its abandonment ruling, the district court erred in concluding Jones was not exercising his custody rights at the end of October 2020, when Fairfield took ICJ to the United States. Contrary to the district court’s decision, then, Fairfield wrongfully removed ICJ from France.
In its alternative ruling, the district court held that Fairfield had established that one of those narrow exceptions—when return presents “a grave risk” of placing the child “in an intolerable situation,” H.C., Art. 13(b)—precludes returning ICJ to France. That ruling was inadequate because the district court never considered whether there are “alternative remedies” available that could permit returning ICJ to France while at the same time protecting her from harm. Radu, ––– F.4th at –––– – ––––, & –––– n.2, 2021 WL 3883013, at *3–4 & *3 n.2. ). Further, “because the Hague Convention provides only a provisional, short-term remedy in order to permit long-term custody proceedings to take place in the home jurisdiction, the grave-risk inquiry should be concerned only with the degree of harm that could occur in the immediate future.” The question, then, “is not whether the child would face a risk of grave harm should she permanently reside in [France], but rather whether she would face such a risk while courts in [France] make a custody determination.” The Court remanded so the district court can consider the possibility that alternative remedies exist and could permit returning ICJ to France for a custody determination. This court addressed in detail the relevant considerations that may affect that determination and what information might be needed, and we identified resources available to aid the district court, including the United States State Department’s Office of Children’s Issues. See Radu, ––– F.4th at –––– – ––––, 2021 WL 3883013, at *4–6. Importantly, part of the analysis on remand should include consideration of whether any suggested conditions for ameliorating a grave risk to ICJ would be enforceable or present “sufficient guarantees of performance” in France. Walsh v. Walsh, 221 F.3d 204, 219 (1st Cir. 2000)
In refusing to return ICJ to France, the district court noted that “[t]he COVID-19 pandemic provides an additional layer of concern for the child to travel back to France.” It appeared from this brief statement that the district court implicitly decided that sending ICJ back to France during the pandemic presented a “grave risk” of “expos[ing] the child to physical ... harm,” H.C., 13(b). That was error because there was simply no evidence in the record addressing whether COVID-19 would present a “grave risk” to ICJ’s health if she returned to France.
September 2, 2021
Radu v Shon, --- F.4th ----, 2021 WL 3883013 (9th Cir.,2021) [Germany] [Grave risk of harm] [Petition granted] [Undertakings][Alternative remedy]
In Radu v Shon, --- F.4th ----, 2021 WL 3883013 (9th Cir.,2021) Persephone Johnson Shon left her husband in Germany and removed her two minor children to Arizona, where they resided for the last two years. The district court found the repatriation of the minor children to Germany posed a grave risk of psychological harm if in the father’s custody. To alleviate that risk, the district court ordered that the children be transferred back to Germany in Shon’s custody until a German court made a custody determination. The Ninth Circuit vacated and remanded for the district court to reasonably ensure compliance with its alternative remedy in Germany.
Bodgan Radu, a dual citizen of Romania and the United States, married Shon, a United States citizen, in 2011 in California. The couple has two children, O.S.R. born in 2013 in the United States and M.S.R. born in 2016 in Germany. The couple initially lived and worked in the United States. In December 2015, Radu traveled to Germany for a contractor job with the U.S. State Department. In March 2016, Shon moved to Germany along with O.S.R. and M.S.R. Shon, Radu, O.S.R., and M.S.R. lived together in Germany in an apartment leased from Inge Frick-Wilden. Shon was a “full-time mom” while living with Radu in Germany. Shon alleged that Radu abused her and the children after they moved to Germany. According to Shon, Radu constantly yelled and screamed at her about the messy apartment, put her down, and called her profanities. Shon did not trust Radu’s parenting because “when he would rage and get angry and mean ... [h]e couldn’t control himself.” Shon provided examples of Radu’s rage and anger. In June 2016, Shon unknowingly gave O.S.R. sour milk to drink. In response, Radu allegedly slammed his hand on the table, threatened Shon, and accused her of trying to poison their son. Janet Johnson, Shon’s mother, witnessed the sour-milk incident and testified that Radu “exploded all over [Shon] about being a terrible mother.” In October 2017, Shon tripped on a stool and spilled broccoli across the floor. Radu allegedly screamed, yelled, and called O.S.R. “bad names, calling him stupid for leaving the stool out” while O.S.R. was “cowering.” In March 2018, while Shon was handling bath time for the children, Radu allegedly flung the bathroom door open and slapped O.S.R. across the face. Finally, during a potty-training incident, while Shon was teaching M.S.R., Radu allegedly was “slamming against the door” and yelling for Shon to get M.S.R. to stop crying. Throughout these events, Shon never contacted law enforcement or sought a protective order or other legal remedy while living with Radu. However, she testified that she “was terrified of [Radu]” and “feared retaliation”—that is, he would hurt her or the children. In March 2019, after Radu allegedly sexually assaulted Shon, she decided that she was not going to stay with Radu. On June 10, 2019, Shon flew one way to Arizona with both O.S.R. and M.S.R. Since Shon’s departure, she and the children resided in Arizona where she enrolled the children in school. Shon later filed for a divorce in Arizona. Shon obtained counseling from a licensed psychotherapist, approximately forty times. According to her, Shon exhibited symptoms of posttraumatic stress disorder.
On June 8, 2020, Radu filed a Verified Petition for Return of Children to Germany. The district court granted Radu’s Petition, ordering Shon to return O.S.R. and M.S.R. to Germany.. The district court carefully considered what type of remedy would safely allow the children to return to Germany. To “mitigate th[e] risk of psychological harm” to the children, the district court ordered an alternative remedy that “Shon shall retain temporary custody and care of the children until a custody determination can be made by a German court of competent jurisdiction.” The district court made several findings. First, the district court found and Shon conceded that “Shon’s removal of the children to the United States, and retention of them therein, was wrongful within the meaning of Article 3 of the Convention.” Second, the district court found that Article 12— “if less than one year has elapsed from the date of the wrongful removal or retention and the commencement of the proceedings” the children shall be returned—applied absent an exception. However, the district court found an Article 13(b) exception applied because “the children would be at grave risk of psychological harm if returned to Germany in the custody of Radu.” The district court found the “evidence presented at the evidentiary hearing supported a finding that Radu behaved in ways that could be characterized as psychologically or emotionally abusive.” At the hearing, Radu testified: “Probably in the heat of the passion, I may have called them [names] a couple of times .... So, I do regret it, looking in perspective right now. Maybe I should have used a different tone [of] voice or a different type of -- better approach in managing my children.” The district court found the “evidence insufficient to show that O.S.R. and M.S.R. would be at grave risk of physical harm if returned to Germany” and there was “no evidence of any sexual abuse of the children. Shon appealed and the district court stayed its order pending resolution of the appeal.
The Court pointed out that Article 13(b) gives courts discretion not to return the children if “there is a grave risk that [the child’s] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” The Convention and ICARA “dictate that custody must be determined by the home jurisdiction”—in this case, Germany—“unless the existence of a ‘grave risk’ truly renders that impossible.” If a court decides that the record supports an Article 13(b) defense, it “must proceed to consider whether that risk can be minimized or eliminated through some alternative remedy.”
The Court observed that its ,controlling precedent on alternative remedies is set forth in Gaudin. 415 F.3d 1028. “[B]efore denying the return of a child because of a grave risk of harm, a court must consider alternative remedies that would allow both the return of the children to their home country and their protection from harm.” The “question is simply whether any reasonable remedy can be forged that will permit the children to be returned to their home jurisdiction for a custody determination while avoiding the ‘grave risk of psychological harm’ that would result from living with” the petitioning parent. It noted a few guidelines for determining whether a grave risk of harm may be mitigated through an alternative remedy: (1) the district court must consider the “effect of any possible remedies in light of circumstances as they exist in the present” meaning “whether a grave risk of harm now exists, and if so, whether that risk can be minimized through an alternative remedy” and (2) the district court must not be influenced by or accord weight to any existing custody proceedings. If a district court makes an Article 13(b) grave-risk-of-harm finding—as the district court did below—the alternative remedy must significantly reduce, if not eliminate, the grave risk of harm to the children. See Saada v. Golan, 930 F.3d 533, 541 (2d Cir. 2019) To that end, district courts need to determine whether and how the alternative remedy is likely to be performed. An alternative remedy evaluation in the context of an Article 13(b) finding must consider whether the return remedy is more likely than not to reduce the short-term risk of harm accompanying repatriation, thus protecting the child’s psychological safety. A district court’s evidence-gathering cannot weigh matters or apply measures treading on the ultimate custody determination--e.g., whether the children are better off with one parent or another. Nor should the alternative remedy incorporate any long-term considerations or conditions that conflict with the Convention and ICARA.
The Court held that the children’s interests, not the parents’ preference or inconvenience, are paramount to evaluating whether an alternative remedy mitigates the grave risk of harm. Appropriate considerations include the enforceability of the alternative remedy in the foreign jurisdiction based on the availability of legal measures to mitigate the child’s risk of harm, reliability of testimony indicating compliance with any court orders or legal measures, as well as history of the parent’s relationship, cooperation, and interpersonal communications. See Saada, 930 F.3d at 541–42. Any supportive reinforcements that may be necessary should reflect these considerations. Accordingly, the district court may solicit any promises, commitments, or other assurances to facilitate repatriation, which may involve directing parents to arrange for legal measures in the foreign jurisdiction—the children’s habitual residence. The district court may need to review foreign law to evaluate the reach of that foreign court’s authority in issuing legal measures or other relief in support of the alternative remedy.
Radu discussed German Code of Civil Procedure § 328 for its standards on enforcing foreign judgments. The Court of Appeals found that an analysis of Germany’s pertinent civil laws, and other aspects of its legal apparatus (processes, procedures, and so forth) may inform whether the district court should direct the parties to obtain protective measures abroad or confirm whether domestic orders suffice. But given its limited authority abroad and potential comity concerns, the district court should not make the order of return with an alternative remedy contingent on the entry of an order by the children’s country of habitual residence. The district court may also solicit supplementary evidence, and in particular testimony, from the parents on these or related issues to determine the nature of supportive reinforcements. In rare circumstances, oral commitments from one parent to obey court orders may be enough. Voluntary commitments or agreements—those without third-party intervention—are acceptable depending on the parties’ pattern of behavior and the severity of risk of harm to the children (which must be low).
The Court of Appeals held that the district court should also, if needed, contact the United States Department of State Office of Children’s Issues to coordinate legal safeguards or otherwise procure assistance from the foreign jurisdiction to address or resolve any issues animating the Article 13(b) grave risk of harm finding. Citing Convention Art. 7 (listing measures available through Central Authorities). Logistical arrangements such as financing the return of the children or securing housing or temporary placement should not undermine the alternative remedy. The options are extensive, but this framework provides the guideposts for navigating the provisions of the Convention and ICARA and creating a reasonable remedy for a short-term period. The district court may also consider activity in the children’s habitual residence, including criminal proceedings, if it could significantly interfere with implementing the supportive reinforcements and otherwise reduce the likelihood of performance. Supportive reinforcements generally should be limited in scope and thus not extremely burdensome to either party to avoid litigation over the merits of custody issues. Resolving the parameters of safe repatriation of the children is paramount.
On appeal, Radu did not properly challenge the district court’s finding that his children would face a grave risk of psychological harm if returned to Germany. The focus of the inquiry here was the alternative remedy based on the district court’s findings. The Ninth Circuit vacated and remanded the alternative remedy order since the record did not adequately support whether the order of the children’s return in Shon’s custody had a high likelihood of performance through supportive reinforcements.
Shon argued that the alternative remedy “is overbroad and exceeds the scope of the lower court’s authority” because it required her to move to Germany, “orders the children to remain” in her custody, and “implicitly requires [her] to file a custody case in Germany and the German court to act on it.” The Court held that the Convention presumes relocation of the children to facilitate repatriation. If relocation of the abducting parent (or a responsible family member) can help alleviate any grave risk of harm from repatriation of the kids, the district court retains that discretion. The Court held that because Shon wrongfully removed the children, as she conceded, the district court in no way exceeded its authority to mandate the children’s return to Germany accompanied by Shon. But in the context of an Article 13(b) finding, the district court needed a fuller record to have sufficient guarantees that the alternative remedy will be enforced in Germany. There are multiple resources the district court may engage, including assistance via the U.S. Department of State, to fulfill the Convention’s presumptive goal of the speedy return of the children. That Germany is a treaty partner with the United States already informs baseline expectations. It must respect that another treaty partner—a contracting State to the Convention—is well-equipped with the proper legal mechanisms and internal processes and procedures to support alternative remedies and otherwise fulfill treaty obligations. An Article 13(b) grave risk of psychological harm finding does not automatically terminate further investigation into a reasonable alternative remedy.
Wednesday August 11, 2021
[Spain] [Petition granted] [Necessary Costs & Expenses] [Award reduced by 85% due to inability to pay]
In Grano v Martin, 2021 WL 3500164 (S.D. New York, 2021) the parties filed objections to the Report and Recommendation (“R&R”) of Magistrate Judge Davison recommending that Petitioner’s motion for attorney’s fees and costs incurred in connection with prosecuting this case be granted in part and denied in part. Petitioner requested a total of $467,944.46 ($359,799.05 in fees and $108,145.41 in costs). The District Court adopted the R&R in part and awarded Petitioner fees and costs in the amount of $34,296.19.
The successful Petitioner filed a motion for attorney’s fees and costs. Respondent argued that an award would be inappropriate, and that the motion should be denied, because of the abuse she suffered from Petitioner and her indigent financial condition. In the alternative, Respondent argued that Petitioner’s requested amount should be reduced because Petitioner’s counsel’s hours were not necessary or reasonable, and the records were insufficient to evaluate the necessity of the work performed.
The court noted that the reasonable hourly rate is the “prevailing market rate, i.e., the rate prevailing in the relevant community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Farbotko v. Clinton County, 433 F.3d 204, 208 (2d Cir. 2005) (cleaned up). Mr. Abbott billed at a rate of $675 when representing Petitioner. Mr. Morley billed at a rate of $600 when representing Petitioner. Mr. Saltzman billed at a rate of $400 when representing Petitioner. The Court found a rate of $425 to be reasonable for Mr. Morley. Because Mr. Abbott was not as well-credentialed as Mr. Morley in Hague Convention matters it found a rate of $400 is reasonable and appropriate for him. The court found a rate of $375, consistent with Mr. Saltzman’s rate of $375, was reasonable for two other attorneys. As to the paralegals, $129 was reasonable.
The Court found that “retaining multiple counsel in a case as complex as this one was ... entirely reasonable.” The Court agreed with Judge Davison’s recommendation that the Court disallow compensation for fees associated with collateral state proceedings and reduce all unclear or comingled time entries by 50%, arguing that those hours were necessarily incurred to secure the return of the child. It found Petitioner’s necessary fees and costs are as follows: $183,686.42 (fees) + $6,692.11 (costs paid by counsel) + $38,262.72 (costs paid by Petitioner)) = $228,641.25 in fees and costs.
The Court noted that Second Circuit has held that an award of fees and costs is clearly inappropriate when the successful petitioner bears responsibility for “the circumstances giving rise to the petition.” Souratgar, 818 F.3d at 79-80. The Souratgar petitioner bore such responsibility because (1) he committed acts of physical violence against the respondent that did not stop after the respondent had left the family home, (2) the respondent’s departure from the country was related to the petitioner’s violence, and (3) there were no countervailing factors that favored the petitioner. Likewise, in both Guaragno and Silverman, the court found that the petitioner’s physical and mental abuse of respondent was an appropriate consideration in determining if the fee award was inappropriate. See Guaragno, 2011 WL 108946, at *3; Silverman, 2004 WL 2066778, at *4. In Radu, the abuse was almost entirely psychological, as it was here, but the abuse was only one of several reasons for concluding that a fee award was clearly inappropriate. See2021 WL 1056393, at *3-4 (no fee awarded because petitioner prevailed only in part, award would prevent respondent from caring for children, petitioner provided no support for children and petitioner was psychologically abusive). The “unclean hands” exception to a fee award is almost always applied to acts of physical violence, sometimes coupled with acts of emotional abuse, and Respondent had not provided authority for the proposition that an award can be clearly inappropriate based on emotional abuse alone. See Hart v. Anderson, No. 19-CV-2601, 2021 WL 2826774, at *6 (D. Md. July 7, 2021) (finding petitioner’s “repeated pattern of alcohol abuse and violence” rendered a fee award inappropriate); see also Jimenéz Blancarte v. Ponce Santamaria, No. 19-13189, 2020 WL 428357, at *2 (E.D. Mich. Jan. 28, 2020) (finding an award for fees and costs inappropriate where petitioner had physically abused respondent and their child); Asumadu v. Baffoe, No. 18-CV-1418, 2019 WL 1531793, at *1 (D. Ariz. Apr. 9, 2019) (finding same when petitioner physically abused the respondent more than once). Souratgar referred repeatedly to the petitioner’s “violence,” as opposed to “abuse,” which suggests the Court meant physical, not mental, abuse. See818 F.3d at 79-82. The court found that this case, which was almost entirely about psychological as opposed to physical abuse, and in which both sides were less than candid, did not rise to the level of those cases justifying complete denial of an award. Further, an award of at least some fees serves the statutory purpose of deterring future child abductions. In re JR, No. 16-CV-3863, 2017 WL 74739, at *4 (S.D.N.Y. Jan. 5, 2017). Although the coercive control Respondent experienced was no doubt serious domestic abuse, the court agreed with Judge Davison that Respondent had not met her burden to show that a fee award to Petitioner would be clearly inappropriate.
Here, Judge Davison reduced the award by 85% in light of Respondent’s demonstrated financial hardships. Respondent demonstrated that she was under financial strain: she had not been able to secure employment in Spain as she was not a legal resident there, and she owed her attorneys over $170,000. She represented that she had no savings, assets, or property. Her most recent bank statement provided to the Court represented that she had a savings account with a balance of $395.10, and a checking account with a balance of $3,255.36. Her net income in 2019 was approximately $27,551. As such, Respondent had sufficiently demonstrated that a substantial fee award for Petitioner would greatly strain her finances, and Respondent clearly would not be able to pay an unreduced award of fees and expenses totaling $228,641.25. While a complete reduction in fees and costs was not necessary –she had a graduate degree from a Spanish university and should at some point be able to get permission to work, the court agreed with Judge Davison’s reduction of the award by 85%.
The revised lodestar amount was as follows: ($183,686.42 (fees) + $6,692.11 (costs paid by Petitioner’s counsel) + $38,262.72 (costs paid by Petitioner)) = $228,641.25, reduced by 85% = $34,296.19.
Friday August 6, 2021
[Portugal] [Habitual Residence] [Rights of Custody][Petition denied]
In Aluker v Yan, --- Fed.Appx. ----, 2021 WL 3417968 (4th Cir. 2021) the Fourth Circuit affirmed the holding of the district court which concluded that Serge Aluker, the father of two minor children, did not have custody rights recognized by the Hague Convention and, therefore, failed to prove that the children’s mother, Simin Yan, wrongfully removed the children from Portugal to the United States.
Aluker was a United States citizen, a Russian citizen, and a legal resident of Portugal. Yan was a United States citizen who presently resided in Virginia. In 2006, Aluker and Yan were married in China, and they moved to the United States in 2008. While living in the United States, Aluker and Yan had two children. The family moved to Spain in 2015, and to Portugal in 2017. Shortly after their move to Portugal, Aluker and Yan separated. Initially, they shared parental responsibilities. However, in November 2018, Aluker and Yan executed a Separation and Property Settlement Agreement (PSA), which stated in relevant part: The parties … agree as follows: ... [Yan] shall have sole legal and primary physical custody of [the two children]. [Aluker] shall be entitled liberal and reasonable visitation with the children. ... The parties acknowledge that this Agreement is a full and final settlement that contains the entire understanding of the parties, and there are no representations, warranties, covenants, or undertakings other than those expressly set forth herein.... This Agreement shall be construed in accordance with the law of the Commonwealth of Virginia. Aluker also agreed in the PSA that Yan would have sole ownership of their house in Falls Church, Virginia. The parties further stipulated therein that each had “the right to reside at any place ... without the consent of the other party.” The PSA was not incorporated into any court order. Several months after the PSA was executed, Aluker initiated proceedings in May 2019 in a Portuguese court seeking an adjudication of child custody rights. The Portuguese court had not taken any action when, on October 3, 2019, Yan sent Aluker an e-mail stating that she was taking the children to the United States to live. Yan and the children traveled to the United States on the same day. Almost a year later, in September 2020, Aluker filed a petition in the district court under the Hague Convention. In his “verified petition of return of children to Portugal,” Aluker contended that the children were wrongfully removed from Portugal. On the day of a scheduled bench trial, Yan requested a judgment on partial findings under Federal Rule of Civil Procedure 52(c). The court conducted a brief evidentiary hearing, allowed Aluker to file a response memorandum, and later granted Yan’s motion. The court concluded that the PSA was a valid agreement, which established that Yan had legal custody of the children at the time she removed the children from Portugal. The court held that Yan’s status as legal custodian of the children defeated Aluker’s claim of wrongful removal.
The Fourth Circuit pointed out that in cases involving claims brought under the Hague Convention, it review sa district court’s findings of fact for clear error and its conclusions of law de novo. Bader v. Kramer, 484 F.3d 666, 669 (4th Cir. 2007). It noted that Article 3 of the Hague Convention provides: The removal or the retention of a child is to be considered wrongful where ... it is in breach of rights of custody attributed to a person ... under the law of the State in which the child was habitually resident immediately before the removal or retention ... The rights of custody mentioned ... above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State. Hague Convention, art. 3. To establish a claim of wrongful removal under the Hague Convention, a petitioner must show that: (1) the children habitually resided in “the petitioner’s country of residence at the time of removal;” (2) the removal breached “the petitioner’s custody rights under the law of his home state;” and (3) the petitioner was actually exercising his custody rights at the time of removal. Bader, 484 F.3d at 668; see also Hague Convention, art. 3.
The Fourth Circuit held that irrespective whether the children were habitual residents of Portugal at the time of their removal, Aluker’s wrongful removal claim failed because he did not establish the other two requirements for proving his claim, namely, that when the children were taken to the United States, he had custody rights under Portuguese law and he was actually exercising those rights. See Bader, 484 F.3d at 668; Hague Convention, art. 3. At the time the children were removed from Portugal, no court had awarded custody rights to Aluker, and the parties had not entered into any written agreement providing Aluker with such rights. When the children were removed from Portugal, Yan had sole legal custody of the children, as agreed by the parties in the PSA.
Portuguese choice of law rules required that it apply United States law in this case. Article 57 of the Portuguese Civil Code directs that “[r]elationships between parents and children are regulated by the common national law of the parents, and in the lack thereof, by the law of their common habitual residence; if the parents habitually reside in different countries, the law of the child’s country of origin shall apply.” In applying Portugal’s choice of law provision to this case, the “common national law of the parents” is the United States, because both Aluker and Yan are United States citizens. Accordingly, United States law, here, the law of Virginia, applies to resolve this matter. It found that Aluker has failed to prove under Virginia law that he had any custody rights at the time the children were removed from Portugal. The PSA unambiguously provided that Yan “shall have sole legal and primary physical custody” of the two children. Although Virginia courts have the power to modify any private custody agreement that parents execute, parents still may enter into such custody agreements and courts may rely on them in making custody determinations. See Shoup v. Shoup, 556 S.E.2d 783, 787-89 (Va. Ct. App. 2001); Va. Code Ann. § 20-109.1 At the time the children were removed from Portugal, no court had altered the terms of the PSA or had adjudicated the issue of the children’s custody.
The terms of the Hague Convention also supported the district court’s conclusion that the PSA was a valid agreement addressing custody rights. Under the Hague Convention, custody rights can be determined by “an agreement having legal effect under the law of the [state of the child’s habitual residence].” Hague Convention, art. 3. An agreement having “legal effect” under the Hague Convention can include “simple private transactions between the parties concerning the custody of their children.” Elisa Pérez-Vera, Explanatory Report on the 1980 HCCH Child Abduction Convention, in 3 Actes et Documents de la Quatorziéme Session – Child Abduction, at 426, 447, ¶ 70 (1980). It concluded that the district court did not err in holding that the PSA had “legal effect” within the meaning of the Hague Convention, and that Aluker failed to prove his claim of wrongful removal.
Monday, July 26, 2021
[Israel] [Consent] [Grave Risk of Harm] [Mature Child Defense][Petition granted]
In Velozny v Velozny, 2021 WL 3115870 (S.D. New York, 2021) Petitioner Nir Velozny, an Israeli citizen, petitioned the United States District Court for the return of his children, R.V., N.V., and E.V., ages 15, 12, and 4, respectively, to Israel. Petitioner moved for summary judgment, arguing that the children were wrongfully removed and were being wrongfully retained in the United States by their mother, Respondent Tal Velozny, who currently resided in New York. Hon. George B. Daniels granted Petitioner’s motion for summary judgment and his petition for the repatriation of the children to Israel.
Petitioner, Nir Velozny, was an Israeli citizen who currently resided in Israel. Respondent, Tal Velozny, a U.S. citizen, was Petitioner’s wife and currently lived in New York. The couple first met in 2001, were married in 2002 (in both the United States and Israel), and moved to Israel in 2005. The couple has three minor children: R.V., N.V., and E.V, all of whom were born in Israel. Petitioner and Respondent shared a home in Tel Aviv with their children until approximately July 2019. Around that time, Petitioner moved out of the family home and informed Respondent that he wanted a divorce. In August 2019, Petitioner filed a petition with the State of Israel Rabbinical Courts to initiate a divorce proceeding. An initial divorce proceeding before Israel’s Rabbinical Court was scheduled for October 2, 2019. The parties, through counsel, began negotiating a divorce and custody agreement and counsel held two meetings in August. After one meeting, Petitioner’s Israeli counsel instructed Respondent’s Israeli counsel that the children were not to leave Israel without Petitioner’s consent. The parties never executed the divorce and custody agreement. On September 28, 2019, just days before they were to appear before the Rabbinical Court, Respondent booked a round-trip ticket for her and the children from Tel Aviv to the United States. Respondent left in secret, never informing Petitioner that she was moving the children to New York. Nor did she tell the children that they were going to stay in the United States. Petitioner discovered that Respondent and the children had left Israel when he went to the family home on September 28th to check in with the children before the start of Rosh Hashana and found it dark. Petitioner went to Respondent’s parent’s home where he was told by the doorman that Petitioner had left for the airport. Petitioner next went to the police station, where the police confirmed that Respondent and the children had left Israel. Respondent and the children have remained in New York (and not returned to Israel) since September 2019.
The undisputed facts demonstrated that Petitioner established each element of a prima facie case under the Hague Convention. The United States and Israel are both signatories to the Convention. The three children are all under the age of 16, were each born in Israel, went to school exclusively in Israel, and carried Israeli and American passports. The children were habitual residents of Israel. There was no dispute that Petitioner had custody rights under Israeli law and was exercising those rights at the time the children were removed from Israel. Petitioner lived with Respondent and the children until approximately July 2019. After moving out of their shared home, Petitioner continued to make attempts to visit and contact the children until they were removed from Israel. Respondent did not dispute Petitioner’s custody rights or that those rights were being exercised. Petitioner satisfied his burden under the Hague Convention and ICARA and established that the surreptitious removal of the children by Respondent to New York was wrongful.
The district court found that respondent failed to show that there were any disputed material facts that supported her affirmative defenses. “[O]nce a [petitioner] establishes that removal was wrongful, the child must be returned unless the defendant can establish one of four defenses.” Blondin v. Dubois, 189 F.3d 240, 245 (2d Cir. 1999) (“Blondin II”)
Respondent argued that Petitioner consented to the children’s relocation to New York during the parties’ divorce negotiations, and that the parties disagreed only on “how much money Petitioner would extract from Respondent’s family to pay his extraordinary debts.” This argument was belied by the undisputed evidence. First, it is undisputed that on August 27, 2019, Petitioner’s Israeli counsel informed Ms. Bash that the children were not to leave Israel without the Petitioner’s consent. This undisputed fact, admitted to by Respondent, undermined the statements in Ms. Bash’s declaration and the argument that Petitioner consented to the removal of the children to the United States. Second, it was undisputed that the agreements laying out the terms of the parties’ divorce and their child custody arrangement were in draft form and unexecuted. Also unavailing was Respondent’s contention that Petitioner’s communications in the years prior to her removal of the children to New York evidence consent.
A showing of acquiescence requires a higher degree of formality; either a formal statement by petitioner or a consistent attitude of acquiescence over a significant period of time.” Laguna, 2008 WL 1986253, at *7. An acquiescence defense “requires either: an act or statement with the requisite formality, such as testimony in a judicial proceeding; a convincing written renunciation of rights; or a consistent attitude of acquiescence over a significant period of time.” Friedrich, 78 F.3d at 1070. Where, as here, “a petition for the return of the children is filed prior to the end of the statutory period, courts will find acquiescence in only a limited set of scenarios.” Pesin v. Osorio Rodriguez, 77 F. Supp. 2d 1277, 1290 (S.D. Fla. 1999). Accordingly, “[e]ach of the words and actions of a parent during the separation are not to be scrutinized for a possible waiver of custody rights.” Friedrich, 78 F.3d at 1070. Respondent’s assertion that Petitioner subsequently acquiesced to the children’s removal, based on a text message from Petitioner telling her to “stay there” the day after she arrived in New York, did not meet the level of formality required for this defense. Petitioner has actively pursued his rights under the Hague Convention by seeking counsel and filing a timely petition after learning from the Israeli police that Respondent and the children had left Israel. Baxter, 423 F.3d at 372; In re Interest of Zarate, No. 96 C 50394, 1996 WL 734613, at *3 (N.D. Ill. Dec. 23, 1996) Thus, the acquiescence defense was inapplicable.
Article 13(b) of the Hague Convention provides that a court “is not bound to order the return of the child” if “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Hague Convention, art. 13(b). A respondent must establish this defense by “clear and convincing evidence.” In re Lozano, 809 F. Supp. 2d 197, 220 (S.D.N.Y. 2011). “[A] grave risk of harm from repatriation arises in two situations: ‘(1) where returning the child means sending him to a zone of war, famine, or disease; or (2) in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.’ ” Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir. 2013).“The potential harm to the child must be severe, and the level of risk and danger required to trigger this exception has consistently been held to be very high.” “The grave risk involves not only the magnitude of the potential harm but also the probability that the harm will materialize.” The Second Circuit has described the grave risk determination as falling on a spectrum: “at one end of the spectrum are those situations where repatriation might cause inconvenience or hardship, eliminate certain educational or economic opportunities, or not comport with the child’s preferences; at the other end of the spectrum are those situations in which the child faces a real risk of being hurt, physically or psychologically, as a result of repatriation. The former do not constitute a grave risk of harm under Article 13(b); the latter do.” Blondin IV, 238 F.3d at 162. As with the entirety of the Hauge Convention analysis, the focus of the grave risk inquiry is “not the relationship between the two parents or the desirability of one party having custody.” Souratgar v. Fair, 2012 WL 6700214 at *7 (S.D.N.Y. 2012). Rather the focus is on whether the return of the children to the country they were removed from will create a true risk of harm to the children.
The grave risk defense has been found to be satisfied where respondents show “a sustained pattern of physical abuse and/or a propensity for violent abuse that presented an intolerably grave risk to the child.” Souratgar, 720 F.3d at 104. Additionally, spousal abuse can establish a grave risk of harm “when it occurs in the presence of the child.” Ermini v. Vittori, 758 F.3d 153, 164 (2d Cir. 2014); see also Souratgar, 720 F. 3d at 103-104. Importantly, “[s]poradic or isolated incidents of physical discipline directed at the child, or some limited incidents aimed at persons other than the child, even if witnessed by the child, have not been found to constitute a grave risk.” Souratgar, 720 F. 3d at 104. “The Article 13(b) inquiry is not whether repatriation would place the respondent parent’s safety at grave risk, but whether so doing would subject the child to a grave risk of physical or psychological harm.”
It was undisputed that in July 2019 Petitioner and Respondent had an argument while in Petitioner’s car. After parking the car in front of the family home he forcibly removed Respondent from the car by grabbing her arm, resulting in a bruise on Respondent’s arm. Petitioner also admitted that, three- or four-times during arguments, when Respondent would “come to [his] face” he would “push her back.” (Respondent’s testimony confirmed these events, but noticeably absent wass any evidence that these events took place in front of the children. There was no evidence in the record to support a finding that Petitioner’s conduct towards Respondent was observed by the children or puts the children at a grave risk of harm.
Respondent never claimed that Petitioner ever physically abused any of the children. Respondent testified that Petitioner would “belittle” N.V. It is alleged, that Petitioner would shout at N.V. and tell him that he needed to “succeed,” “do better,” “leave [his] phone alone,” not be “stupid,” and not be “stupid like [Petitioner]” because he didn’t finish high school. These allegations, while perhaps not the most pedagogically advanced, do not amount to a grave risk of physical or emotional abuse from Petitioner. The allegations here regarding treatment of the children can be characterized as disciplinary in nature. Souratgar, 720 F.3d at 105.
Respondent alleged that Petitioner abused drugs, left drugs lying around the home, and was “totally consumed” by drugs to the point that he was “unable to function as a parent.” Petitioner admitted to using drugs “recreationally” about once every month or two when he would go to an event or party. “Drug use, under certain circumstances, ... may qualify as grave-risk conduct.” Mlynarski v. Pawezka, 931 F. Supp. 2d 277, 284 (D. Mass. 2013), aff’d, 2013 WL 7899192 (1st Cir. May 8, 2013). Courts use a two-step approach to determine whether allegations of drug use qualify as a grave risk. “[T]he court must first determine whether the alleged ... drug use in fact occurred. Beyond that, the court must consider as part of the grave risk analysis how such conduct, if confirmed, would affect the child were he to be returned to his habitual residence.” Respondent admitted that she never witnessed Petitioner use drugs in front of the children. It was clear that the drug use at issue here did not rise to the level that put the children at a grave risk of harm. Respondent failed to meet her burden to establish by clear and convincing evidence that the children’s return to Israel would expose them to a “grave risk of physical or psychological harm or otherwise place [them] in an intolerable situation.” Convention, Art. 13(b).
Respondent’s third and final defense relied on an unnumbered provision in Article 13 of the Hague Convention, which provides that a court may “refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.” Hague Convention, art. 13. There is no “minimum age at which a child is old enough and mature enough to [object and] trigger this provision.” Blondin IV, 238 F.3d at 166. However, the exception must be “construed narrowly so [its] application does not ‘undermine the express purposes of the Convention.’ ” Yang v. Tsui, 499 F.3d 259, 278 (3d Cir. 2007)). Notably, proving that the defense applies is not dispositive; courts ultimately retain discretion to order repatriation despite that showing. Blondin II, 189 F.3d at 246 n.4; see also Haimdas v. Haimdas, 720 F. Supp. 2d 183, 204 (E.D.N.Y. 2010). Generally, “[a] child’s expression of a preference to remain in the United States rather than a particularized objection to repatriation may provide a basis for a court to find the mature child exception inapplicable.” Haimdas, 720 F. Supp at 206; see also Yang, 499 F.3d at 280.
Having reviewed expert report submissions reflecting a combined 5 hours and 50 minutes of clinical interviews with R.V. and N.V, the Court concluded that Respondent’s child objection defense was unavailing and declined to apply the exception. Neither one of the expert reports suggested that N.V. held an unequivocal, bona fide objection to repatriation. In his interview with Dr. Favaro, N.V., who is twelve years old, stated that returning to Israel would make him “anxious and upset” because “[h]e likes the school here [in New York], ... has made good friends [in New York], and loves living with his maternal grandparents and would miss his family life if he were forced to return [to Israel].” N.V.’s wishes did not rise to the level of an unequivocal objection to return to Israel. While N.V. expressed that he would be “anxious and upset” to return, his stated reasons for feeling that way revolve around his enjoyment of his new school and new friends, and that he likes living with his maternal grandparents. These reasons did not indicate a substantial basis for his objection to a return to Israel, so much as it reflected his enjoyment of his current lifestyle in New York. The case for declining to apply the mature child exception was even stronger after examining R.V.’s alleged objections. According to Petitioner’s expert, R.V., who recently turned fifteen, “reported that life in Israel ‘was not bad.’ ” Respondent’s expert, meanwhile, reported that R.V. “expressed a preference to stay in the United States and that the quality of his life would not be satisfying if he returned to Israel.” Again, there was no unequivocal objection here—neither a mere preference nor expected quality of life are relevant considerations under the Hague Convention. R.V. “at no point ... express[ed] a clear objection to his return to Israel.” Respondent did not meet her burden of showing that R.V. unequivocally objects to repatriation to Israel. Accordingly, this Court declined to apply the discretionary mature child exception.
Monday, June 21, 2021 Recent Hague Convention District Court Cases Berenguela- Alvarado v Castanos, 2020 WL 10055693 ( S.D. Florida, 2020). [Chile][On remand from Court of Appeals for the Eleventh Circuit. vacating District Court Order Denying Petition for Return and remanding for further proceedings to reassess Respondent’s consent defense under the proper legal framework articulated by the Eleventh Circuit] [Petition granted] . Saturday, June 12, 2021 Recent Hague Convention District Court Cases Nowlan v Nowlan, 2021 WL 2379815 ( W.D. Virginia, 2021) [Canada] [Habitual residence ] [Petition granted] [Grave risk of harm]. Saturday, June 5, 2021 Recent Hague Convention District Court Cases Kenny v. Davis, 2021 WL 2275983 (D. Alaska, 2021) [Republic of Ireland] [Habitual Residence] [ Petition Denied] Wednesday, May 26, 2021 Alvarez Romero v Gajardo Bahamonde, --- Fed.Appx. ----, 2021 WL 2104855 ( Eleventh Circuit, 2021)[Chile] [Petition denied][Mature Child][Well-Settled][Grave Risk of Harm] In Alvarez Romero v Gajardo Bahamonde, --- Fed.Appx. ----, 2021 WL 2104855 ( Eleventh Circuit, 2021) Rodrigo Andres Alvarez Romero appealed the district court’s denial of his petition for return of his minor children to Chile. The Eleventh Circuit affirmed. ABB and PDCB were Alvarez Romero and Maria Eugenia Gajardo Bahamonde’s minor daughters. ABB was born in 2006 and PDCB was born in 2013. Alvarez Romero and Gajardo Bahamonde were citizens of Chile and had never been married. Their children were born in Chile. Gajardo Bahamonde, ABB, and Mauricio Loyola (Gajardo Bahamonde’s son from a prior relationship) testified that Alvarez Romero frequently abused Gajardo Bahamonde emotionally and physically, including beating her so severely she had a miscarriage. Because ABB and PDCB witnessed the abuse, the Chilean Family Court ordered them to undergo mental health treatment. In the treatment program, both children were diagnosed with “mild psycho-affective damage” due to the abuse they saw their father inflict on their mother. This abuse included an incident when Alvarez Romero broke her nose and another when he knocked her unconscious while the children were lying beside her in bed. Loyola testified that Alvarez Romero was often verbally and physically abusive to Gajardo Bahamonde in front of the children. He said that Alvarez Romero would hit his mother, call her “a whore,” and say she was worth less than him because “he was an engineer and she was nothing.” Loyola witnessed one occasion when Alvarez Romero beat Gajardo Bahamonde so severely that he broke her ribs. Loyola recounted at least one incident where ABB witnessed Alvarez Romero severely beat their mother. And both daughters often heard their father verbally abuse their mother. Alvarez Romero would beat Loyola as well, including by hitting him with a belt. ABB witnessed several other incidents, including one when Alvarez Romero almost ran into ABB while trying to hit her mother. ABB also described Alvarez Romero’s disturbing behavior toward ABB and PDCB. For example, he forced ABB to stay up for hours past her bedtime as punishment for doing poorly on a school assignment; he locked PDCB in the car while shopping when she wouldn’t stop crying that she wanted her mother; and he took the children with him to buy drugs (which he used in their presence) and drove with the children while under the influence.Alvarez Romero denied all allegations of abuse. The district court found Alvarez Romero’s claims that he never abused the mother of his children and that she falsified the allegations of abuse not to be credible. Following the separation, Gajardo Bahamonde lived with the children in abject poverty. In December 2017, Alvarez Romero told Gajardo Bahamonde he wanted to take the children to visit his mother in the United States, during which time they would also have the opportunity to visit Disney World. Gajardo Bahamonde consented to the trip, based on her belief that the children would be under the care of their grandmother. She signed a travel authorization form allowing the children to travel to the United States from December 2017 to March 2018. Gajardo Bahamonde testified that in January 2018, Alvarez Romero told her he would not be returning the children to Chile and that if she ever wanted to see them again, she would have to come join them in the United States. Alvarez Romero denied ever saying this. But that month, he got a full-time job in the United States, bought a car, and enrolled ABB in school and PDCB in daycare. After she learned that Alvarez Romero enrolled the daughters in school and daycare in the United States, Gajardo Bahamonde left her job in Chile and sold possessions in order to pay for a ticket to travel to Alvarez Romero’s mother’s home in Florida in February 2018 to be with the children. Two months later, Gajardo Bahamonde moved out and took PDCB with her because, she said, Alvarez Romero began sexually harassing her and verbally and physically abusing her in front of the children. ABB testified that she saw Alvarez Romero abuse Gajardo Bahamonde while she was living with them in Florida. Gajardo Bahamonde also described an incident when Alvarez Romero pushed her while she was at work, prompting a co-worker to call the police. Gajardo Bahamonde’s testimony about that incident is supported by a police report. Gajardo Bahamonde filed for a domestic violence protection order in Florida after that incident. Initially, ABB stayed with her grandmother and father. But after her grandmother went back to Chile, ABB’s living situation worsened. ABB testified that she started missing a lot of school, there was almost no furniture in the home they stayed in, she was alone in the home for most of the day, and was left without food or a phone. Her mother came and took ABB to live with her after ABB called upset that she was stuck alone in the house with no food while Alvarez Romero was at work. The Florida court scheduled two hearings about Gajardo Bahamonde’s petition for a protective order. Alvarez Romero did not appear and instead returned to Chile. After Alvarez Romero failed to appear at the first hearing and returned to Chile, Gajardo Bahamonde moved to Georgia. The petition was dismissed for failure to appear. Gajardo Bahamonde did not further pursue the protective order after Alvarez Romero left the United States because she knew he could not return. When Alvarez Romero returned to Chile, he took the children’s passports with him. Initially, he remained in contact with ABB. They spoke about planning a trip for the children to return to Chile. Gajardo Bahamonde repeatedly asked Alvarez Romero to return the passports but he never did. Gajardo Bahamonde and the children moved to Georgia in November 2018. Since then, the children had lived in one home and attended the appropriate schools. In June 2020, Alvarez Romero filed an ICARA petition, claiming that, as of November 2018, Gajardo Bahamonde wrongfully retained the couple’s two minor children, ABB and PDCB, in the United States, at the time 14 and 7 years old, respectively. Because Gajardo Bahamonde sought to rely on the mature child exception as to ABB, the district court interviewed ABB in chambers. The district court first spoke to ABB alone and provided a summary to the parties. Next, the district court asked ABB questions the parties submitted in advance. The parties could not directly cross-examine ABB, but they listened to the district court interview her over the phone and were permitted to submit follow-up questions. Neither party submitted any follow-up questions. During that hearing, ABB objected to returning to Chile. At the time of the hearing, ABB was 14 years old. She was doing well at school and the record does not indicate that she had any kind of difficulties adjusting to life in the United States. She stated that she wanted to stay in the United States because her life in Chile was unstable. In Chile, she lived in poverty, frequently moved, and was constantly in fear that Alvarez Romero would find them and hurt her mother. Without prompting, ABB described a number of instances where she saw her father beat her mother, including some incidents her mother did not know ABB witnessed. For example, she described an incident when her father threw boiling water on her mother while she was cooking, at which point ABB called the police. ABB, her mother, her sister, and her half-brother then had to live in a hotel to stay safe from her father. She recalled watching her father purchase and consume drugs in her presence. She also recalled several interactions with the police in Chile when they responded to Alvarez Romero’s violent outbursts. ABB also testified that she witnessed her father hit her half-brother, giving him a black eye. The Eleventh Circuit rejected Alvarez Romero argument that ABB could only testify about her objections to returning to Chile because “the Hague Convention does not authorize the Court to interview a child or any other witness in chambers, without the opportunity for cross-examination, on substantive issues in the case.” Instead, he said a court may only interview a child to determine whether the mature child exception applies. The court held that contrary to Alvarez Romero’s contentions, courts regularly rely on the child’s testimony in Hague Convention cases for issues besides the mature child exception The Eleventh Circuit rejected the argument that the district court improperly applied the mature child exception to ABB. Courts have relied primarily on three considerations in determining when this exception applies: (1) whether the child is sufficiently mature; (2) whether the child has a particularized objection to being repatriated; and (3) whether the objection is the product of undue influence. See Colon v. Mejia Montufar, 470 F. Supp. 3d 1280, 1295 (S.D. Fla. 2020) (citing Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259, 279 (3d Cir. 2007)).As to the first factor, courts have looked to the child’s age, ability to express mixed feelings, and to plan past obstacles as indications of maturity. Alvarez Romero said the district court relied solely on ABB’s age in finding that she was sufficiently mature, but that assertion wass not supported by the record. The district court considered ABB’s age (she was fourteen years old at the time), the fact that she was able to express some positive feelings about life in Chile, her ability to provide detailed answers demonstrating an understanding of her situation, and the testimony of her teacher in finding that she was sufficiently mature. In determining whether a child has particular objections to repatriation, courts consider whether the child is expressing merely a preference against return or is “affirmatively objecting to returning to one country—when living in that country would be unacceptable.” Rodriguez v. Yanez, 817 F.3d 466, 477 (5th Cir. 2016). Alvarez Romero claimed that ABB expressed a mere preference to stay in the United States, but he did not support this claim with references to the record. An actual review of the record showed that ABB provided lengthy and detailed particularized objections to being repatriated to Chile based on her father’s constant verbal and physical abuse of her mother. Alvarez Romero also insisted that ABB’s testimony could only be the product of Gajardo Bahamonde’s undue influence. When considering whether a child’s objection is the product of undue influence, courts place great weight on whether the objection is based on the child’s firsthand experiences. Colon, 470 F. Supp. 3d at 1298 (collecting cases). Unquestionably, ABB’s objections were based on her firsthand experiences. She described witnessing numerous incidents of Alvarez Romero physically and verbally abusing her mother, going hungry and homeless when Alvarez Romero cut off her mother financially, observing Alvarez Romero take drugs, and being subject to his harsh discipline. The district court did not err in applying the mature child exception to ABB. When a Hague Convention petition is filed more than a year after a child is retained, the retaining parent can assert the well-settled defense. Hague Convention Art. 12 (noting that the child must still be returned if the petition is filed after one year “unless it is demonstrated that the child is now settled in its new environment.”) The retaining parent must establish that the child is well-settled by a preponderance of the evidence. 22 U.S.C. § 9003(e)(2)(B). Alvarez Romero filed thepetition more than one year after Gajardo Bahamonde and the children remained in the United States. But Alvarez Romero complained that the district court should not have considered the well-settled defense because he says Gajardo Bahamonde concealed the children’s location from him. Alvarez Romero’s argument failed on both the facts and the law. As a factual matter, the district court determined that Gajardo Bahamonde did not conceal the children’s whereabouts from Alvarez Romero.And even if the record indicated that Gajardo Bahamonde had concealed the location of her children, that alone would not prevent her from asserting the well-settled defense. As the Supreme Court held in Lozano v. Montoya Alvarez, 572 U.S. 1, 134 S. Ct. 1224 (2014), concealment does not equitably toll the one-year deadline for a parent to file a petition and preclude the retaining parent from asserting the well-settled defense. Id. at 4, 134 S. Ct. at 1228. Therefore, the district court properly considered the well-settled defense here. The Eleventh Circuit rejected the argument that the district court’s factual findings did not support its ruling that the children were well-settled in the United States. In this circuit, a child is well settled for purposes of the Hague Convention “when a preponderance of the evidence shows that the child has significant connections to their new home that indicate that the child has developed a stable, permanent, and nontransitory life in their new country to such a degree that return would be to the child’s detriment.” Fernandez v. Bailey, 909 F.3d 353, 361 (11th Cir. 2018). The district court’s application of the well-settled defense is reviewed for abuse of discretion. Courts look to how frequently children move around within their new country, whether they attend extracurricular and community activities, and whether they regularly attend school when determining whether they are well-settled. Lozano, 572 U.S. at 17, 134 S. Ct. at 1236 (collecting cases). The children had been living in the United States since December 2017, when Alvarez Romero brought them here. They had been enrolled in school in the United States since January 2018, when he first enrolled them. They changed school districts only once—when they moved to Georgia in November 2018. Both children were doing well in school. Before the onset of the Covid-19 pandemic, both children were involved in numerous extracurricular activities, including music lessons, skating, swimming, and soccer. They had close friendships at school and in their neighborhood. The children get along with each other. They were also close with their half-brother, who visited from Alabama every few weeks. Gajardo Bahamonde and the children’s visas were expired. An immigration attorney, who presented expert testimony as to immigration law matters, advised that Gajardo Bahamonde was not under any threat of removal and that she had three options for regularizing her status. The Court found that record clearly established that ABB and PDCB would face a grave risk of harm if returned to Chile. For years, Alvarez Romero physically and verbally abused Gajardo Bahamonde, including beating her so severely that she miscarried and breaking her ribs and nose. The children witnessed numerous incidents of abuse, to the extent that they underwent court-mandated mental health treatment. And when Gajardo Bahamonde was finally able to leave this abusive relationship, Alvarez Romero left her and their children homeless and hungry. Alvarez Romero abused drugs while caring for his children, including in their presence. Alvarez Romero challenged the district court’s factual findings. He argues that the district court should have credited his and his mother’s testimony denying abuse instead of crediting Gajardo Bahamonde, ABB, and Loyola’s testimony describing his abuse and other disturbing behavior. But Alvarez Romero again fails to show that the district court’s credibility determinations were clearly erroneous. The Court saw no basis for displacing the district court’s findings that the testimony that Alvarez Romero abused Gajardo Bahamonde for years was credible and his denials were not credible. Monday, May 17, 2021 Jacquety v Baptista, 2021 WL 1885263 (S.D. N.Y., 2021)[Morocco][Grave Risk of Harm][Ameliorative measures][Petition denied] In Jacquety v Baptista, 2021 WL 1885263 (S.D. N.Y., 2021) the district court denied the Petition of Guillaume Jacquety against Respondent Geraldine Helena Tena Baptista (“Geraldine”) seeking return of their daughter E.J. to Guillaume’s custody in Morocco. The parties wereformerly husband and wife under French law. They had a young daughter, referred to as “E.J.” In early November 2018, Geraldine traveled with E.J. from the family’s home in Morocco to Geraldine’s mother’s home in Switzerland and then a few days later to Portugal, where they were joined by Respondent Dr. Yousseff Zaim Wadghiri (“Wadghiri”). From there, Geraldine, E.J., and Wadghiri traveled to New York City, where they have since lived in Wadghiri’s home. The trial of this matter took place by remote means over twelve days between January 25, 2021 and February 9, 2021. The parties stipulated to Petitioner’s prima facie case. The issues for trial were whether E.J. faced a grave risk of physical or psychological harm if she were repatriated to Morocco and, if so, whether arrangements could be implemented in Morocco that would adequately protect E.J. from that grave risk of harm. The district court observed that “The grave-risk exception is found in Article 13 of the Hague Convention, which states that: the judicial ... authority of the requested State is not bound to order the return of the child if the person ... which opposes its return establishes that ... there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. Convention, art. 13(b). The Second Circuit has explained the high bar required to meet the exception: [A] grave risk of harm from repatriation arises ... in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection. The potential harm to the child must be severe, and the ... level of risk and danger required to trigger this exception has consistently been held to be very high. The grave risk involves not only the magnitude of the potential harm but also the probability that the harm will materialize. Souratgar, 720 F.3d at 103 (internal quotation marks, citations, and emphasis omitted); see also Norden-Powers v. Beveridge, 125 F. Supp.2d 634, 640 (E.D.N.Y. 2000) (collecting cases). The exception is to be interpreted narrowly, “lest it swallow the rule.” Souratgar, 720 F.3d at 103; see also 22 U.S.C. § 9001(a)(4) (referring to the Convention’s “narrow exceptions”). The grave-risk inquiry is “not whether repatriation would place the respondent parent’s safety at grave risk, but whether so doing would subject the child to a grave risk of physical or psychological harm.” Souratgar, 720 F.3d at 104. “Sporadic or isolated incidents of physical discipline directed at the child, or some limited incidents aimed at persons other than the child, even if witnessed by the child, have not been found to constitute a grave risk.” Id. (collecting cases). In contrast, “[t]he exception to repatriation has been found where the petitioner showed a sustained pattern of physical abuse and / or a propensity for violent abuse that presented an intolerably grave risk to the child.”. As the Second Circuit has explained: [A]t one end of the spectrum are those situations where repatriation might cause inconvenience or hardship, eliminate certain educational or economic opportunities, or not comport with the child’s preferences; at the other end of the spectrum are those situations in which the child faces a real risk of being hurt, physically or psychologically, as a result of repatriation. The former do not constitute a grave risk of harm under Article 13(b); the latter do.Blondin v. Dubois, 238 F.3d 153, 162 (2d Cir. 2001) (“Blondin IV”) “Evidence of prior spousal abuse, though not directed at the child, can support the grave risk of harm defense, as could a showing of the child’s exposure to such abuse,” though “[e]vidence of this kind ... is not dispositive in these fact-intensive cases.” Souratgar, 720 F.3d at 104 (internal quotation marks, brackets, and citations omitted); see also Davies v. Davies, 717 F. App’x 43, 49 (2d Cir. 2017) (summary order) (finding no error in district court’s grave risk finding “premised on overwhelming evidence of Mr. Davies’s extreme violence and uncontrollable anger, as well as his psychological abuse of Ms. Davies over many years, much of which was witnessed by [the child]”); Ermini, 758 F.3d at 164 (“Spousal violence ... can also establish a grave risk of harm to the child, particularly when it occurs in the presence of the child”); Mohácsi v. Rippa, 346 F. Supp.3d 295, 320, 322 (E.D.N.Y. 2018) (“witnessing the abuse of [one’s] mother is enough to establish the applicability of the defense”), aff’d sub. nom. In re NIR, 797 F. App’x 23 (2d Cir. 2019) (summary order affirming denial of petition). Even if the requirements of the grave risk of harm exception are met, principles of comity require the court to “determine whether there exist alternative ameliorative measures that are either enforceable by the District Court or, if not directly enforceable, are supported by other sufficient guarantees of performance.” Saada v. Golan, 930 F.3d 533, 541-42 (2d Cir. 2019). The Court may consider, among other things, “whether [the other country’s] courts will enforce key conditions” to protect the child. Id. at 541. The Convention’s grave-risk exception is an affirmative defense that the respondent must prove “by clear and convincing evidence,” although “subsidiary facts need only be proven by a preponderance of the evidence.” Elyashiv v. Elyashiv, 353 F. Supp.2d 394, 404 & n.10 (E.D.N.Y. 2005); see 22 U.S.C. § 9003(e)(2)(A). The court found that Respondent has proven by clear and convincing evidence that E.J. faces a grave risk of harm if she is repatriated to Morocco. Petitioners expert, Dr. Goslin determined that there was “clear and compelling evidence” that E.J. suffers from PTSD resulting from domestic violence by Guillaume toward Geraldine, and that E.J. was at serious risk of an increase in her PTSD symptoms and negative impact on her development if she were to return to Morocco. Dr. Goslin predicted “with a great deal of certainty” that if returned to Morocco, E.J.’s PTSD symptoms would increase and her developmental functioning would regress. In short, E.J. would not be able to recover from her PTSD if returned to Morocco. E.J.’s plight had been made even more precarious as a result of the recent Moroccan Judgment awarding physical and residential custody of E.J. to Guillaume based on a one-sided record. Dr. Goslin testified that if left in an unsupervised setting with her father, E.J.’s PTSD symptoms would intensify and she therefore would neither feel safe nor be safe. Making matters worse, the Moroccan Judgment imposed extreme restrictions on Geraldine’s visitation rights, limiting her to only day time visits on the weekends. As a result, E.J. would be deprived of her primary caregiver, further exacerbating her PTSD. Dr. Goslin was the only expert who evaluated E.J. Petitioner provided no expert testimony. Courts have denied petitions under the Convention in such circumstances. For instance, in Blondin IV, the Second Circuit affirmed the denial of a petition to return two children to France. The district court found that petitioner had beaten his wife, the respondent, often in the child’s presence and that he had also beaten one of the children. The district court also accepted the expert testimony of an expert child psychiatrist, Dr. Solnit. Like Dr. Goslin here, Dr. Solnit opined that the children were recovering from PTSD and that “if the children were returned to France with or without their mother and even if they could avoid being in the same domicile as the father ... they would almost certainly suffer a recurrence of their [PTSD] that would impair their physical, emotional, intellectual and social development.” 238 F.3d at 160. The petitioner in Blondin IV did not provide any contrary expert testimony to rebut Dr. Solnit’s opinions. Sixteen years later, the Second Circuit in Davies reached a similar conclusion in affirming the district court’s denial of a petition to return a child to French St. Martin. Davies v. Davies, No. 16-CV-6542, 2017 WL 361556, at *17 (S.D.N.Y. Jan. 25, 2017).See also Elyashiv, 353 F. Supp.2d at 408-09 (denying repatriation%2