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Saturday, January 5, 2013

Souratgar v Fair, 2012 WL 6700214 (S.D. N.Y., 2012) [Singapore] [Grave Risk of Harm]

In Souratgar v Fair, 2012 WL 6700214 (S.D. N.Y., 2012) the district court granted the Petition of Abdollah Naghash Souratgar, an Iranian citizen, for the return of his son, Shayan, to Singapore. Shayan. The child was born in Singapore and had Malaysian citizenship. Shayan’s mother, respondent Lee Jen Fair, a Malaysian citizen, left Singapore with Shayan on May 20, 2012 without petitioner’s knowledge or consent and in violation of a Singapore court order prohibiting either parent from taking the child out of Singapore and traveled to the United States. On October 18, 2012, shortly after the father learned that the child and respondent were living in Dutchess County, New York, he filed a petition with this Court. After hearing the testimony from the petitioner and his investigators, the Court granted an ex parte application for an order directing the U.S. Marshal to take "all necessary and lawful steps" to "remove Shayan" from his mother’s custody and deliver him "into the custody of [p]etitioner." Petitioner was ordered to surrender his passport and post a $10,000 bond. On November 7, 2012, both parties appeared with counsel, and the Court scheduled an evidentiary hearing. The Court appointed a guardian ad litem for Shayan. After a hearing the Court granted the petition.

Since 2000, petitioner was an employment-pass holder in Singapore, where he worked. He first traveled to Singapore in 1985 and set up his company there in 1989. The head office of the business he owns was located in Singapore and had twelve employees. He also owned a business in Iran. Respondent had permanent resident status in Singapore.

In 2007, the couple married, and on January 16, 2008, they registered their marriage in Singapore. Shayan was born on January 29, 2009. The child had Malaysian citizenship and had resided in Singapore from birth until the respondent removed the child to the United States. There was considerable strife in the marriage, and on April 29, 2011, while the couple still resided together, respondent filed an application for sole custody, care, and control of the child in the High Court of the Republic of Singapore. On May 16, 2011, she obtained an ex parte order from the Subordinate Courts of the Republic of Singapore prohibiting petitioner from removing the child from the jurisdiction of Singapore without respondent’s consent or the court’s approval. Respondent left the marital home with the child on May 25, 2011 and moved into her sister’s Singapore apartment. Shortly thereafter, petitioner was served with a copy of the May 16, 2011 order. Petitioner filed a cross-application for sole custody on June 28, 2011. At a mediation session held on July 14, 2011, the Subordinate Court issued an order prohibiting both parties from removing the child from Singapore. The Order also granted petitioner supervised visitation every Saturday between 3 p.m. to 5 p.m. at the Centre for Family Harmony, the costs of which were to be borne equally.


The district court observed that persons of the Muslim faith are a small minority in Singapore. By statute, divorce actions between individuals of the Muslim faith must be brought in the Singapore Sharia Courts. Administration of Muslim Law Act, Part III, § 35(2) ("AMLA"). Sometime around the end of 2011, respondent brought an action for divorce in the Singapore Sharia Courts. Respondent attended a mandatory counseling session within the Sharia Court. Petitioner testified that he did not participate in the action. Petitioner’s Singapore counsel testified that the divorce action did not proceed. The Singapore Subordinate Court continued to function on issues relating to temporary custody of the child and visitation and on February 16, 2012, after a mediation session presided over by a judge of the Singapore Subordinate Court, the court ordered that "[t]he child shall continue to be in the care of the mother pending the determination of custody, care, and control of the child by the Syariah Courts" and that "[t]he father shall have access to the child two times a week at the Centre for Family Harmony pending the outcome of the hearing of the Syariah Courts."4 The order stated in boldfaced capital letters that it was entered "BY CONSENT."


On May 20, 2012, the respondent left Singapore in breach of the July 14, 2011 order. Petitioner obtained a court order requiring the respondent to deliver the child to the Duty Judge of the Subordinate Courts Family and Juvenile Division within seven days and surrender the child’s personal documents. This order specified that "[t]he child be placed in the interim sole care and control of" the petitioner "pending the determination of the action or until further Orders." The same order further directed that respondent be restrained from removing the child from the jurisdiction without the consent of petitioner or the court. Respondent, who was no longer in the country and likely did not receive notice of the June 5, 2012 order, did not comply and was held in contempt on June 25, 2012.


The district court found that petitioner established each and every element of a prima facie case under the Hague Convention. The district court observed that Article 13(b) of the Hague Convention provides that the signatory state "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). Although the respondent bears the burden of establishing by clear and convincing evidence that the exception applies, 42 U.S.C. § 11603(e) (2)(A), subsidiary facts may be proven by a preponderance of the evidence. It noted that the Second Circuit considered the "grave risk" exception at length in Blondin II and Blondin v. Dubois, 238 F.3d 153 (2d Cir.2001) ("Blondin IV" ). The court explained that mere showings of "inconvenience or hardship" do not amount to a "grave risk" of harm. Rather a "grave risk" of harm exists where "the child faces a real risk of being hurt, physically or psychologically, as a result of repatriation." The court cited withapproval the Sixth Circuit’s observation that a "grave risk" to the child presents itself 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.’ (quoting Friedrich, 78 F.3d at 1069) In the years since the Second Circuit’s consideration of the Blondin case, several federal courts have found "a child’s observation of spousal abuse is relevant to the grave-risk inquiry." E.g., Elyashiv v. Elyashiv, 353 F.Supp.2d 394, 408 (E.D.N.Y.2005). "Children are at increased risk of physical and psychological injury themselves when they are in contact with a spousal abuser." (citing Tsarbopoulos v. Tsarbopoulos, 176 F.Supp.2d 1045, 1058(E.D.Wash.2001). Accordingly, evidence of "[p]rior spousal abuse, though not directed at the child, can support the grave risk of harm defense." Rial v. Rijo, 10 Civ. 1578(RJH), 2010 WL 1643995, at *2 (S.D.N.Y. Apr. 23, 2010) (citing Walsh v. Walsh, 221 F.3d 204 (1st Cir.2000)). Still, the court need not "refuse to send a child back to [his] home country in any case involving allegations of abuse, on the theory that a return to the home country poses a grave risk of psychological harm." Blondin IV, 238 F.3d at 163 n. 12. Rather, that determination must be based on the "specific facts presented in [the] case."  When making a grave risk determination, the court must also consider whether the child can be protected from the risk of harm "while still honoring the important treaty commitment to allow custodial determinations to be made—if at all possible—by the court of the child’s home country." Blondin II, 189 F.3d at 248. In its deliberation of whether there is a grave risk of harm, the Court takes into account "any ameliorative measures (by the parents and by the authorities of the state having jurisdiction over the question of custody) that can reduce whatever risk might otherwise be associated with a child’s repatriation." "In cases of serious abuse, before a [district] court may deny repatriation on the ground that a grave risk of harm exists under Article 13(b), it must examine the full range of options that might make possible the safe return of a child to the home country." Blondin IV, 238 F.3d at 163 n. 11. For instance, in Blondin v. Dubois, 19 F.Supp.2d 123, 129 (S.D.N.Y.1998) ( "Blondin I" ), the district court concluded that there would be a grave risk of harm should the children in that case be returned to France, the country of their habitual residence. The Second Circuit, in Blondin II, remanded the case to the district court for "further consideration of the range of remedies that might allow both the return of the children to their home country and their protection from harm, pending a custody award in due course ...." 189 F.3d at 249. On remand, the district court engaged in further analysis but reached the same conclusion, in part because "any return" of the children would " ‘almost certainly’ trigger a recurrence of their traumatic stress disorder." Blondin v. Dubois, 78 F.Supp.2d 283, 295 (S.D.N.Y.2000) ("Blondin III" ). On appeal, the Second Circuit affirmed the district court’s determination that there was a grave risk of harm to the children because repatriation to the country of habitual residence created a real risk of triggering further psychological trauma, regardless of any potential mitigating arrangements. Blondin IV, 238 F.3d at 161. In applying the standard set out in the Blondin cases, district courts inthis Circuit have denied petitions to return the child where there has been evidence supporting a finding of a real risk of psychological or physical harm to the child. Elyashiv, 353 F.Supp.2d at 408–09 (evidence petitioner physically abused respondent and the children and expert testimony that the children would suffer PTSD symptoms upon their return to Israel, regardless of contact with petitioner); Reyes Olguin v. Cruz Santana, No. 03 Civ. 6299, 2005 WL 67094, at *2–*4, *11–*12 (E.D.N.Y. Jan. 13, 2005) (evidence petitioner frequently beat respondent in front of the children, children told psychiatrist that petitioner hit them, and expert testimony that return of the children would exacerbate the PTSD of one child). This Court held in M.M. v. F.R., No. 11 Civ. 2355(PKC) (S.D.N.Y. June 30, 2011), that respondent had established that repatriating the child would expose him to a grave risk of physical or psychological harm, because, among other things, the petitioner had sexually abused the child’s half-sister. But, credible evidence of some level of abuse by the petitioner does not necessarily equate to establishment of the grave risk to the child in repatriation. See, e.g., Rial, 2010 WL 1643995, at *2–*3 (evidence of verbal and physical abuse toward respondent, at times in front of child); Laguna v. Avila, No. 07 Civ. 5136, 2008 WL 1986253, at *8–*9 (E.D.N.Y. May 7, 2008) (evidence of violence toward respondent, but no evidence that petitioner physically abused the child). The focus of the inquiry is not on the relationship between the two parents or the desirability of one parent having custody. Rather, the focus should be on whether returning the child to the country from which he was removed will present a real risk of harm to the child, because, for example, it will trigger trauma to the child or the country of habitual residence lacks the means to afford reasonable protection to the child from physical or psychological harm at the hands of a parent or third-party.


The district court found that both parties had deep love for Shayan and cared greatly about his well being. Respondent testified that she never saw petitioner physically abuse the child. Moreover, she never reported to the police any incident where petitioner abused the child. She never claimed in the Singapore courts that petitioner abused the child. Petitioner and respondent both alleged instances of domestic abuse and inappropriate conduct aimed at one another. The Court found that Respondent had exaggerated her claims, and did not establish her grave risk of harm defense. For example, Respondent testified that petitioner forced her to engage in certain sexual acts, including anal and oral intercourse, which often occurred in the marital bedroom where the child slept. The Court did not credit respondent’s testimony because respondent’s SMS text messages to petitioner contradicted her account and indicated that she was a willing participant.

A Dr. B.J. Cling, retained by respondent, testified as an expert on domestic violence matters. Dr. Cling opined that respondent suffered from symptoms of post-traumatic stress disorder and depression. Dr. Cling testified about a specific type of domestic violence termed "coercive control" or "intimate terrorism," which "has as its main focus the domination and control of the victim." This type of violence is severe, frequent, and very harmful to children. Moreover, when the victim and perpetrator separate, the characteristics of "coercive control" often escalate. The Court found that the evidence did not support this conclusion and that the Respondent failed to prove her grave risk of harm defense.

The district court also rejected respondents Article 20 defense. It permits the requested State to refuse the return of the child when it "would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms." Hague Convention, art. 20.13 The Article 20 defense must be restrictively interpreted and applied on the rare occasion that return of a child would utterly shock the conscience of the court or offend all notions of due process." The parties did not cite and the Court could not find any published federal case law in which the Article 20 exception was found to have been established. See Uzoh v. Uzoh, No. 11 Civ. 9124, 2012 WL 1565345, at *7 (N.D.Ill. May 2, 2012) (noting the same).

Respondent argued that returning the child was not permitted by the fundamental principles of the United States because the custody determination in Singapore will be made in a Sharia Court. AMLA grants the Sharia Courts in Singapore considerable discretion in considering evidence from non-Muslims. See AMLA § 42(3). Respondents expert, Ms. Hassan, testified that a woman’s testimony is worth less than a man’s in the Sharia Courts. Moreover, she testified that Sharia Law applies presumptions favoring fathers and disfavoring non-Muslim parents in custody determinations. These rules, respondent urged, ought shock the conscience and offend notions of due process. The Court concluded, that it need not reach the issue of whether the procedural and substantive rules in Sharia Courts "shock the conscience" or "offend all notions of due process" because the Court found that respondent failed to prove that it was more likely than not that the Sharia Court would make a final custody determination in this case.


Respondent also argued that there were insufficient protections against domestic violence in Singapore, and thus, Article 20 bared the child’s repatriation. The Court found that Singapore had reasonable procedures to ensure the safety of the child during the pendency of the custody proceedings including supervised visitation.

  The Court concluded that it would be an improvident exercise of discretion to stay the Order pending appeal because there was a significant risk that Respondent would flee with the child and avoid detection. The treaty between the United States and Singapore contemplates the "prompt" return of the child to the country of habitual residence. See Hague Convention, art. 1. The Court granted a brief stay of return to permit a stay application to be made to the United States Court of Appeals for the Second Circuit and otherwise denied a stay pending appeal.