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Thursday, August 15, 2013

Aly v. Aden, 2013 WL 593420 (D. Mn) [Canada] [Habitual Residence] [Grave Risk of Harm] [Attorneys Fees & Costs Clearly Inappropriate] [Petition Granted]

[Canada] [Habitual Residence] [Grave Risk of Harm] [Attorneys Fees & Costs Clearly Inappropriate] [Petition Granted]

In Aly v. Aden, 2013 WL 593420 (D. Mn) petitioner Mohamed Aly Saad Aly filed a petition against respondent Amal Aden alleging that Aden wrongfully removed their child from Canada to the United States. Petitioner Aly was born and raised in Cairo, Egypt. Aly had been a permanent resident of Ontario, Canada since 2007, where he was pursuing a PhD in engineering at the University of Waterloo. Aly applied for Canadian citizenship, and his application was being processed. Aly supported himself financially with a stipend he received from serving as a research/teaching assistant at the University of Waterloo, a temporary position that would end when Aly completed his PhD. Respondent Aden was a United States citizen who was born in Somalia and immigrated to Minnesota in 1999. Aden received a Bachelor's Degree in nursing in 2007 and worked part-time at the Hennepin County Medical Center.

Aly and Aden were religiously married in an Islamic ceremony in April 2010. On June 7, 2011, the couple was civilly married in Canada. In May 2010, Aden moved from Minnesota to Ontario and began living with Aly in his apartment. Aden purchased a townhome in Minnesota in 2007, which she continued to rent to a tenant after moving to Canada. Her immigration status in Canada was one of a visiting American. Upon moving to Canada, Aden retained her Minnesota driver's license, and when it expired obtained a New York driver's license. In November 2010, Aly added Aden to the lease agreement for his apartment. In November 2010, Aden became pregnant with P.H.A.S.A. In December 2010, Aden began working as a nurse at Millard Fillmore Gates Hospital in Buffalo, New York. In January 2011, Aden alleged that she told Aly she wanted to separate. On February 27, 2011, Aly and Aden were involved in a violent incident. An argument began when Aly became upset that Aden did not make him lunch, and instead suggested that he prepare his own lunch. Aden alleged that the argument escalated verbally, and she began to pack her bags, planning to end the relationship with Aly and move out of the apartment. At this point, Aden alleged that Aly threw her onto the bed, punched her in the head several times, and lay on top of her. When Aden got off the bed, she alleged that Aly grabbed her by the shoulders to prevent her leaving the room and kneed her forcibly in the stomach.. Aly testified that as the verbal argument over the preparation of lunch escalated, Aden threatened him with a kitchen knife and also threatened to kill herself or stab her belly. Aly further alleged that he, not Aden, sought refuge in the bathroom. The Court found neither Aly's nor Aden's version of the events of February 27, 2011 to be entirely credible.

Aden testified that in July 2011 she and Aly were involved in another physical altercation, which arose out of a woman claiming to have married Aly in March 2011 contacting Aden. Aden packed her belongings, intending to leave, and Aly allegedly hit her in the head several times. Aden also alleged that Aly deleted instant messages in which he admitted that he hit her in the head in July 2011. Aly and Aden's daughter, P.H.A.S.A., was born on August 27, 2011, in Canada. Because Aden did not have health insurance in Canada, she was ultimately billed $13,000 for her delivery at the Canadian hospital. P.H.A.S.A. was a Canadian and an American citizen. And also had a United States passport and social security card. Aden returned to her nursing job at Millard in October 2011 and began working weekends. On weekends Aly would care for P.H.A.S.A. Aly and P.H .A.S.A. would accompany Aden to the Canadian border near Buffalo and stay at a bed and breakfast while Aden worked. Aden alleged that she "fear[ed] for [P.H.A.S.A.]'s safety" and "was terrified" when she went back to work and left P.H.A.S.A. in Aly's custody. The Court found this testimony to be not credible. Aden consistently left P.H.A.S.A. in the sole care of Aly. These actions were inconsistent with Aden's alleged terror. This was particularly true in light of Aden's history of a willingness and ability to leave Aly. Aden made no allegations that P.H.A.S.A. was harmed physically, psychologically, or emotionally while in the sole custody of Aly. Prior to April 26, 2012, P.H.A.S.A. attended all of her medical appointments in Canada, including specialist appointments for a possible genetic disease. In February 2012, Aden entered into another rental agreement with the tenant for her Minnesota townhome. The agreement granted the tenant a lease through April 30, 2013.

On April 25, 2012, Aly and Aden had an argument during which Aden told Aly she wanted to separate. Aden alleged that while she was holding P.H.A.S.A. Aly slapped Aden in the face. Aden alleged that this was the seventh time Aly had physically assaulted her. Aden testified that Aly then grabbed P.H.A.S.A. from Aden's arms and threw P.H.A.S.A. into the corner of the room .P.H.A.S.A. landed on the floor and began crying hysterically according to Aden's account of the evening. Aly denied all of the allegations of the April 25, 2011 event, and specifically denied that he threw P.H.A.S.A. across the room. The next day, April 26, 2011, Aden took P.H.A.S.A. to a doctor's appointment in Hamilton City, Ontario, that had previously been scheduled. Aden brought the bags she had packed the previous night. The Court again found neither party's testimony regarding the events of April 25 to be entirely credible. It found Aden's testimony credible to the extent that it believed a verbal argument erupted between the parties and that Aly did become physically violent toward Aden. The Court, however, found Aden's testimony that Aly grabbed P.H.A.S.A. from Aden's arms and threw her across the room to be not credible because Aden, a trained nurse, did not seek medical attention for her eight-month-old child after the child was allegedly thrown across the room. Additionally, the Court believed that if the allegations were true Aden would have mentioned the incident at P.H.A.S.A's doctor's appointment the next day, since Aden's conduct on February 27, 2011, showed that she was not afraid to report incidents of domestic abuse. Finally, the Court found the testimony not credible to the extent that an eight-month-old child grabbed forcibly from someone's arms and thrown across a room, landing on the floor, would likely have sustained some injuries visible to a doctor at an appointment that occurred the day after the incident.

After P.H.A.S.A.'s doctor's appointment, Aden drove with the child to Buffalo, New York. Aden withdrew her final paycheck from Millard and began driving to Minnesota. Aden and P.H.A.S.A. arrived in Minnesota on April 27, 2012. Aden sent Aly an instant message informing him that she and P.H.A.S.A. had arrived safely in Minnesota. Aden's townhome tenant made other living arrangements, and Aden and P.H.A.S.A. eventually moved into this home.

Aden alleged that Aly approved of the practice of female genital mutilation Aden also alleged that Aly asked Aden to take P.H.A.S.A. to Aden's mother, who lived in Kenya, to have the child undergo FGM. Aden testified that Aly then stated that if Aden's mother would not do the procedure, Aly would take P.H.A.S.A. to his mother in Egypt to have the procedure done. Aly denied that he approved of FGM or that he would subject P .H.A.S.A. to FGM and instead alleged that Aden's mother and Aden herself had been advocates of subjecting P.H.A.S.A. to the procedure.(Aden presented expert testimony from Elizabeth Boyle about the practice of FGM. Aly presented expert testimony from Mr. Abed Awad, an expert on Islamic law, about the practice of FGM. FGM is associated with physical and psychological harm. FGM can cause, among other things, hemorrhaging, infection, and complications with childbirth, as well as anxiety disorders, depression, and post-traumatic stress disorder. FGM is not a practice mandated by Islam. And the mainstream Islamic organizations' position is that the practice is unIslamic. FGM is not an accepted or prevalent practice in North America and is illegal in both Canada and the United States. Dr. Jeffrey Edelson holds a PhD in social work, and provided expert testimony regarding the likelihood of future domestic violence based on a perpetrator's history. He opined that "there is a grave risk of physical harm and psychological harm to the infant [P.H.A.S.A.] involved in this case ... [s]hould she be returned" to Canada.

The parties did not dispute that in April 2012 Aly was exercising a right of custody over P.H.A.S.A. Ontario law provides that "the father and the mother of a child are equally entitled to custody of the child." Children's Law Reform Act, R. S.O.1990, c. C.12, s. 20(1). The court pointed out that a child's habitual residence is "the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a ‘degree of settled purpose’ from the child's perspective." Feder v. Evans–Feder, 63 F.3d 217, 224 (3d Cir.1995). "[S]ettled purpose need not be to stay in a ... location forever, but the family must have a' sufficient degree of continuity to be properly described as settled. " Silverman, 338 F.3d at 898 (quoting Feder, 63 F.3d at 223).7 In determining whether a particular place satisfies the standard for habitual residence, "[t]he child's perspective should be paramount," and "[p]arental intent is not dispositive." Stern, 639 F.3d at 452. Finally, habitual residence is determined by examining "past experience, not future intentions." Nunez–Escudero v. Tice–Menley, 58 F.3d 374, 379 (8th Cir.1995). This case involved a different question than the typical Convention case. Rather than determining whether there was a change in habitual residence, the Court had to determine whether eight-month-old P.H.A.S.A. ever established a habitual residence in Canada before being removed to the United States. In cases where the parents lack a settled intent to reside together at the time of the child's birth, the infant may not acquire a habitual residence in the country in which she is born. However, "where a matrimonial home exists, i.e., where both parents share a settled intent to reside, determining the habitual residence of an infant presents no particular problem, it simply calls for application of the analysis under the Convention with which courts have become familiar." Under these circumstances, even very young infants can acquire a habitual residence. The Court found that P.H.A.S.A. was a habitual resident of Canada prior to her removal. Aly and Aden were married in Canada before P.H.A. S.A.'s birth. At the time of their daughter's birth Aly and Aden had lived together in a Canadian apartment for over fifteen months. Both Aly and Aden were obligated on the lease, which extended through May 31, 2012. P.H .A.S.A. was born in Canada, acquired Canadian citizenship, and lived in Canada for eight months before being removed to the United States. Prior to her removal, P.H.A.S.A. had never been to the United States. All of these facts indicated that Aly and Aden shared a settled intent to reside with P.H.A.S.A. in their matrimonial home in Canada.That Aden retained numerous ties with the United States did not alter the Court's conclusion that P.H.A.S.A. was a habitual resident of Canada. Although P .H.A.S.A. was only eight months old when she was removed from Canada, unlike cases involving very young infants, there was evidence suggesting some degree of acclimatization. In eight months, P.H.A.S .A. had never been outside of Canada. P.H.A.S.A. had begun to form important contacts in Canada. P.H.A.S.A. was a Canadian citizen and was the recipient of Canadian child benefits. Moreover, P.H.A.S.A. attended all of her doctor's appointments in Canada, including several visits to specialists related to a possible genetic disorder.

Aden argued that returning P.H.A.S.A. to Canada would put the child at a grave risk of physical and psychological harm because of Aly's history of abuse and desire to subject P.H.A.S.A. to FGM. "[S]erious abuse or neglect" can qualify as a grave risk of harm under Article 13(b)." Silverman v. Silverman, 338 F.3d 886, 900 (8th Cir.2003) (en banc) The grave risk inquiry is narrow in scope, and "there must be evidence of a grave risk of harm to [the] child, not solely to a parent or some other third party." Acosta v. Acosta, Civ. No. 12–342, 2012 WL 2178982, at *7 (D. Minn. June 14, 2012). "[B]ecause 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." Gaudin v. Remis, 415 F.3d 1028, 1037 (9th Cir.2005).The petitioner cannot rely on generalized evidence but must produce "specific evidence of potential harm." Rydder, 49 F.3d at 373.

With respect to physical and psychological abuse, where the child herself has been subjected directly to serious physical and psychological abuse, the grave risk defense is typically met. See Blondin v. Dubois, 238 F.3d 153, 161–62 (2d Cir.2001) (explaining that where "the child faces a real risk of being hurt, physically or psychologically" the grave risk of harm exception is met).Typically, however, "general evidence concerning abuse of the mother is not sufficient to establish the Article 13(b) exception that return will expose the child to a grave risk of harm." . A petitioner must demonstrate a connection between the harm to her in returning to the home country and a risk to the child. See Abbott, 130 S.Ct. at 1997. The Court concluded that Aden has failed to demonstrate that P.H.A.S.A. would face a grave risk of harm if she was returned to Canada. The Court found Aden's allegations that P.H.A.S.A. would face a grave risk of physical or psychological harm at the hands of Aly were either not credible or fail to meet the standard of clear and convincing evidence required by the grave risk exception.

The Court fouond that Aly had not directly abused P.H.A.S.A. as it found Aden's testimony alleging that Aly threw P.H.A.S.A. across the room and kneed Aden in the stomach while she was pregnant to be insufficiently credible to satisfy the heightened standard for establishing the grave risk exception. It found that Aly physically abused Aden on at least four occasions—in the fall of 2010, on February 27, 2011, in July 2011, and on April 25, 2012. However, the Court found Aden's testimony regarding the severity of the February and April violent episodes to be exaggerated. The incidents in the fall of 2010 and July 2011 involved some pushing and slapping. These isolated instances of abuse aimed at the mother did not rise to the level of severity required to meet the grave risk exception, which focuses on a grave risk of harm to the child that would occur prior to the resolution of a custody dispute and must be established by clear and convincing evidence. Additionally, Aly's abuse was not characterized by prolonged violent outbursts. Aly's outbursts of rage were short-lived, and after becoming physically violent he would immediately become calm and resume normal life activities. Finally, and most importantly, the Court found that these incidents of violence had not directly impacted P.H.A.S.A. This violence was not perpetrated against P.H.A.S.A., and only one incident allegedly occurred in P.H.A.S.A.'s presence. Additionally, the Court found the allegations that Aly would subject P.H.A.S.A. to FGM to be too speculative to demonstrate a grave risk of physical and psychological harm by clear and convincing evidence. Although subjecting P.H.A.S.A. to FGM would clearly constitute a grave harm, the grave risk inquiry focuses on "immediate" risks. At most, the record contained allegations that Aly believed in the practice and has expressed a desire to subject his daughter to the procedure, potentially by taking her to Egypt. None of the female members of Aly's family had undergone the procedure, suggesting that immediate family pressure was not an issue. The record did not reflect that Aly would be able to obtain this procedure in the United State or Canada, which the Court found mitigated any immediate risk to P.H.A.S.A. Aly was not currently in possession of P .H.A.S.A.'s passport. Should Aly's alleged desire to subject P. H.A. S.A. to FGM manifest itself into actual plans to carry out the procedure, the Court believed that the Canadian court was equipped to prevent this occurrence. Further, the Court found that the generalized evidence presented by Aden about Aly's controlling behavior and disrespect toward women was insufficient to establish that P.H.A.S.A. would be subjected to a grave risk of psychological harm if she was returned to Canada for purposes of resolving Aly and Aden's custody dispute. Although Aly's apparent devaluation of women was troubling, the Court did not find that these views would subject P.H.A.S.A. to grave psychological harm in the period of time that custody proceedings are pending in Canada. Moreover, courts in the abducted-from country, Canada, were as ready and able as we are to protect children.

Aly requested that the Court award all legal costs, fees, and travel expenses incurred in securing the return of P.H.A.S.A pursuant to the Article 26 of the Convention, and pursuant to ICARA, which provides that any court ordering the return of a child pursuant to an action brought under section 11603 of this title shall order the respondent to pay necessary expenses and costs unless the respondent establishes that such order would be clearly inappropriate." 42 U.S.C. § 11607(b)(3).

Although Aden was employed on a part-time basis, she demonstrated that due to her monthly income and expenditures, paying Aly's attorneys' fees and costs would present a financial hardship. Additionally, Aden's financial situation was affected by the $13,000 hospital bill for P.H.A. S.A.'s delivery that was still outstanding, an expense that Aden incurred on behalf of both herself and Aly. Moreover, the Court found that at least some of Aden's current financial hardship was due to the control that Aly exerted over her funds while Aden was living in Canada, including Aly naming himself as the recipient of P.H.A. S.A.'s Canadian Child Benefits. That Aly contributed to Aden's straitened financial circumstances made an award of fees to Aly inappropriate. Finally, the Court found that Aly "bears at least some responsibility for the acrimony between the parties." The Court determined that Aly did not provide truthful testimony, and was physically and verbally abusive toward respondent. These factors were appropriately considered in determining whether a fee award would be appropriate. In light of Aden's financial circumstances, an award of fees could compromise Aden's ability to care for P.H.A.S.A. The Court therefore found that an award of attorneys' fees and costs was clearly inappropriate.

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