In Mauvais v Herissee, 2014 WL 1454452 (D.Mass.)) the district court granted the petition of Manel Mauvais for the return of his two minor children to Canada. The petitioner, and the respondent, Nathalie Herisse, were both citizens of Haiti. They had two children together: MM and RM. They lived together in Haiti until September 2009, when Herisse moved to her aunt's home in Mattapan, Massachusetts, so that the baby she was expecting would be born in the United States. Mauvais and MM remained in Haiti. RM was born in Boston in November 2009. After MM was born in France in 2005, Herisse returned to Haiti. A catastrophic earthquake devastated Haiti in January 2010. Mauvais and MM moved to Quebec, Canada in February 2010. Herisse was still living in Massachusetts with her aunt and new infant. She asked Mauvais to bring MM to Massachusetts, but he refused. In turn, he urged Herisse to join him in Canada. She testified he threatened to harm MM if she did not. In March 2010, Herisse reluctantly took RM to Canada. Mauvais, Herisse, their two daughters, and two of Mauvais's children from a prior relationship lived for a while in Montreal with Mauvais's sister and her family. In July 2010, Mauvais and Herisse moved into their own apartment with their two daughters and Mauvais's twin children. They lived together there until January 2011, when Herisse moved out, taking the children with her. The three first stayed with relatives, but in September 2011 they moved to a separate apartment in Montreal. In February or March 2012, Mauvais convinced her to allow him and his other children to move into her apartment. The children lived with their mother in an apartment in Montreal for about two years prior to the events that gave rise to the present petition. MM was enrolled in and attended a primary school beginning with the 2011-2012 school year, and was enrolled for the 2013-2014 school year when she was taken by the respondent to the United States. RM was enrolled in a full time day care program between the end of April 2013 and late August 2013. Both children visited regularly with relatives, apparently on both their mother's and their father's sides. With some of the father's relatives, they regularly attended church and Sunday school. According to an aunt, they developed a "Quebecois" accent when speaking French. In late August 2013, Mauvais consented to RM traveling to the United States for a month to live with Herisse's aunt in Mattapan, and the aunt traveled to Canada to take RM to Massachusetts.
In the fall of 2012, RM began to have some health problems, including frequent nosebleeds and weight loss. Herisse took her to various clinics but was not satisfied with the care RM received. Herisse decided that it would be best for RM, a U.S. citizen, to return to the U.S. to receive medical care. For that purpose, the parties agreed that Herisse's aunt could bring RM to the U.S. in late August 2013. Medical records from the Boston Medical Center in evidence indicate no major health issues. In the fall of 2013, RM was examined and treated for eczema, a tendency to experience nosebleeds, and mild anemia. For the latter, she was prescribed an iron supplement.
The parties' written agreement provided that RM would be returned to Canada around September 20, 2013. She was not returned as agreed. On September 13, 2013, the respondent left Canada with MM and traveled to her aunt's home in Massachusetts, where she and her two children remained.
The district court found that prior to the children's removal and retention in September 2013, that the parties both were content to have their children live in their existing setting in Canada. For approximately two years, the children lived in a settled, "acclimatized" way in Canada. The fact that one or both of the parties may have harbored some desire eventually to move to the United States did not undercut these conclusions. After Herisse had stopped living with Mauvais, she established her own household with the children in Montreal. The children attended school and participated in various social activities. Herisse's actions showed that even when she was not under Mauvais's control or influence, she chose to remain in Canada. That she subsequently had a change of heart and decided that the children would be better off living elsewhere was of no moment, as any such intent was not a shared one with Mauvais. It was noteworthy RM had spent almost her entire life, and MM about half her life, in Canada, and the evidence presented at trial showed that both she and MM had had sufficient time for acclimatization. The court found that Mauvais had proven that Canada was the habitual residence of the children at the time of their retention and removal and, consequently, that MM and RM were wrongfully removed or retained within the meaning of the Convention.
The respondent testified that the petitioner frequently acted toward her in a sexually abusive manner. She further testified that he insisted on sexual activity at times and under circumstances when the children were or could have been exposed to it. The testimony was general and vague, however, and it was difficult to draw any reliable conclusions about how frequently such conduct occurred or how significant any impact on the children might have been. She also testified that Mauvais's son, BM, who was a few years older than MM, was sexually assaultive toward her. One such incident occurred while the family was still living in Haiti. According to the respondent, when she reported the incident to the petitioner, he disciplined BM by beating him with a belt. The respondent's aunt testified about a similar incident a couple of years later in Canada. There was no evidence as to what, if any, discipline was meted out to BM for that occasion. The evidence in the nature of an opinion that RM and/or MM might suffer psychological harm if returned to Canada was unconvincing because it did not appear to be based on an indepth investigation, but rather on some office interviews and a review of hospital records that themselves did not disclose any grave medical or emotional issue. The evidence fell well short of supporting a finding of a grave risk of psychological harm. Herisse contended that MM and RM faced a grave risk of physical and psychological harm if they return to Canada. At trial, Herisse testified that Mauvais has sexually abused her for many years, that BM had acted in sexually inappropriate ways toward MM on numerous occasions, and that Mauvais has been violent toward BM. Herisse also argued that RM's medical issues might not be as adequately addressed in Canada as in the United States. Herisse relied heavily on the First Circuit's decision in Walsh, but in that case the court relied on "ample evidence" that the petitioner "has been and can be extremely violent and ... cannot control his temper," and that the petitioner had a history of violence toward others, including threats to kill a neighbor and a physical confrontation with his adult son. Walsh, 221 F.3d at 219-20. The petitioner in Walsh was also a fugitive who had demonstrated a "chronic disobedience of court orders."
The facts of this case were neither as dire nor as clear. Herisse admited that Mauvais had never harmed or attempted to harm MM or RM. Even after moving out in January 2011, Herisse took no steps to prevent Mauvais from having contact with their children. A general likelihood that serial spousal abusers may also eventually abuse
their children is insufficient to establish, by the requisite degree of proof, grave risk of physical or psychological harm to MM and RM. Further, as to RM's medical care, there was insufficient evidence that there is a grave risk that RM's medical condition could not be appropriately addressed in Canadian medical facilities.
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