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Monday, June 18, 2012

Khan v. Fatima, --- F.3d ----, 2012 WL 1560398 (C.A.7 (Ill.)) [Canada] [Federal & State Judicial Remedies -Rule 52 -Duty to Make Findings of Fact]

 In Khan v. Fatima, --- F.3d ----, 2012 WL 1560398 (C.A.7 (Ill.)) the petitioner was the father, and the respondent, his wife, was the mother. She removed the child from their joint custody and is thus the "abductor." The child is a girl not yet 4 years old, who was referred to as ZFK. The father, an optometrist in Edmonton, Alberta (Canada), wanted to take the child back to Edmonton. He filed for divorce in Canada on the ground of the mother's "physical or mental cruelty" to him, and sought sole custody of the children. The mother, a U.S. citizen living in Illinois, wanted to keep the children with her in the United States. The district court ordered ZFK returned to Canada with her father, and the mother appealed.

The Court observed that Article 13(b) of the Convention provides a defense to the return of the " abducted" child 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 respondent (the abductor) must prove this defense by clear and convincing evidence, 42 U.S.C. s 11603(e)(2)(A), and Hague Convention proceedings must be conducted with dispatch. Art. 11; March v. Levine, 249 F.3d
462, 474 (6th Cir.2001).

The parties became husband and wife in an arranged marriage two years before the birth of ZFK, their first child. During the family's visit to India the wife complained to the Indian police of domestic abuse. The police investigated, charged the husband, and took away his passport in April of last year. While he was in India the wife (pregnant at the time with a second child), flew to the United States with ZFK. Eventually the husband's passport was returned and he flew back to Canada and some months later, in February of this year, filed the petition for the return of the child. That child was born in the United States after the mother had brought ZFK here and was therefore a U.S. citizen. The father did not argue that the mother abducted that child, who continued to live with her mother.

On March 7 the father obtained an ex parte order from the district court requiring the mother to yield custody of ZFK to him pending resolution of his petition, and on the thirteenth the judge scheduled an evidentiary hearing for March 22. It was held that day and he issued a final order of return the next day and also ordered the wife to hand over ZFK's passport to her husband so that he could take the child back to Canada. But the judge conditioned the orders on the husband's agreeing to pay a retainer (though not necessarily any additional fees) for an attorney who would be hired by the wife to handle the divorce and custody proceeding that her husband has begun in Canada.

On the wife's motion the Circuit Court of Appeals stayed both the order of return, and the order that she turn over the child's passport to her husband, pending the decision of her appeal. And on May 1, after hearing oral argument in the appeal the day before, it ordered the child returned to the mother pending its decision, but that both the mother's passport and the child's passport be held by the U.S. Marshals Service until further notice.

The Court observed that the wife's testimony, if believed, revealed that her husband had a violent, ungovernable temper, had physically abused her on many occasions, some in the presence of ZFK (and in front of the child he had told his wife he would take out her eyeballs, had been rough on occasion with the child, terrified the child, and that the child's mood had brightened greatly when she was living apart from her father. But if the husband's testimony is believed, he was, if not a model husband, not an abuser of his wife or the child.

The Court pointed out that Rule 52(a)(1) of the civil rules requires the judge to "find the facts specially and state [his] conclusions of law separately" when he is the trier of fact. He is not excused from this duty in a proceeding under the Hague Convention. And the duty is not waived when, as in this case, plaintiff and defendant testify inconsistently and it is impossible to demonstrate by objective evidence which one is telling the truth, or more of the truth. The trier of fact must decide whom to believe (and how much to believe) on the basis of the coherence and plausibility of the contestants' testimony, corroboration or contradiction by other witnesses, and other clues to falsity and veracity. The process of factfinding in such a situation is inexact and the findings that result are doubtless often mistaken. But the judge can't just throw up his hands, as happened in this case, because he can't figure out what is true and what is false in the testimony. There is no uncertainty exception to the duty imposed by Rule 52. And if there were such an exception, it would not be available when the evidentiary hearing had lasted only a day, as in this case. The judge could have
adjourned the hearing for a few days to enable additional evidence to be obtained and presented; in particular he could have had ZFK examined by a child psychologist. The wife's lawyer, his initial proposal of an expert witness having been turned down because the witness hadn't had time to examine the child (the hearing was held only two weeks after the respondent learned about the suit), offered to submit an evaluation based on an examination of the child by the end of the week. The judge refused. His final order, issued the day after the hearing, was two pages long and contained no findings of fact relating to the Article 13(b) defense, just a conclusion that the wife had failed to meet her burden of proof. That was not a finding of fact, but a conclusion of law. Rule 52(a)(1) requires both: that the facts be found "specially" and the conclusions of law stated separately. There is no rule exempting the judge from the duty of finding the facts in cases in which the plaintiff has a higher burden of proof than the usual civil burden of the preponderance of the evidence.

At the end of the evidentiary hearing the judge had had a discussion with the lawyers, and from that the Court pieced together his thinking and extracted a single, solitary factfinding. The judge began by saying, directly after the parties' witnesses had testified (there were no closing arguments), that "neither-none of the parties to the suit are residents of Illinois."Not true; the wife is currently a resident of Illinois. The judge said that "if I send it [the issue of custody of the child] back to
Canada, the Canadian courts presumably will look and take evidence and so forth and hear essentially the same evidence, I guess, I'm hearing today and make a decision to award custody to the mother or to the father.... [Under the Hague Convention] the child is to be returned except where there's grave risk of harm to the child. And, now, there's-presumably, there's always some risk. All I know is
what I heard here today. And I'm-there's been a he said/she said hearing today. nd it's very difficult for me to say categorically one side is telling the truth and one side is not telling the truth." The judge mentioned a bruise that the mother had received on her arm in India and that had been photographed at the police station and was a basis for her complaint to the police. The judge said that if the father had inflicted the bruise-which he declined to decide one way or the other-that was a bad thing to have done but it hadn't created a "grave risk," a key term in Article 13(b). The Court noted that the issue was not creating a grave risk to the mother, but a grave risk (of psychological harm) to the child. If the mother's testimony about the father's ungovernable temper and brutal treatment of her was
believed, it would support an inference of a grave risk of psychological harm to the child if she continued living with him.

Very little of the wife's testimony was mentioned by the judge, even though the wife had testified that she'd been beaten, knocked down by him in front of ZFK, hit in the chest by a heavy wallet that he had hurled at her, choked by him twice (and she said she thought she would die) when she was pregnant with her second child, threatened with having her eyeballs yanked out, and dragged bodily from the backyard into a room in the house.

The mother's testimony was corroborated by her sister and her sister's husband.

The judge did not mention the testimony of those witnesses, the testimony of a supervisor from Supervised Visitation Services (who testified about the child's having said she "hurt"), or any testimony of the mother except about the bruise on her arm and he made no finding about whether the father had inflicted it, instead dismissing it as not evidence of a "grave risk" to the mother. His focus on the bruise to the exclusion of any mention of the mother's testimony that her husband had choked her hard enough to make her afraid she would die, or indeed of any of her other testimony, was perplexing. Much of that abuse occurred in the child's presence; and repeated physical and psychological abuse of a child's mother by the child's father, in the presence of the child (especially a very young child, as in this case), was likely to create a risk of psychological harm to the child. Whether it was a grave risk, and thus triggered the Article 13(b) defense, was a separate question, but one that cannot be addressed, let alone answered, without recognizing the potential for such a risk in the father's behavior toward the mother in the child's presence. All this the judge ignored.

Throwing up his hands at what he may have thought an incomprehensible quarrel between foreigners, the judge remarked that even if the child wouldn't be safe living with her father, "Why can't Canada any more than Illinois protect-offer her protection?"The mother's lawyer pointed out that other witnesses besides the mother had testified and that there was testimony of "multiple instances" of abuse, to which the judge replied: "Then she ultimately should prevail.... Canada should make the decision on who gets custody of the child because the child is a Canadian citizen and domiciled in Canada."The lawyer asked for a few days to obtain a psychologist's evaluation of the child and the judge refused.

The Court stated that unless a trier of fact determines that the mother is a thorough liar, it was concerned that continuing the child in her father's custody may inflict inflict psychological harm on her. The Court held that the evidentiary hearing was inadequate. Rule 52(a) was violated; there were no findings of fact on the key issues. Decisions are frequently reversed for such omissions. The failure to allow psychological evidence was another error. The errors were not harmless. The district court's order was vacated and the case remanded for a proper hearing.

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