Application of Stead v Menduno, Not Reported in F.Supp.3d, 2014 WL 6819547 (D.Colo.) [ New Zealand] [Federal & State Judicial Remedies] {Expert Testimony]

In Application of Stead v Menduno, Not Reported in F.Supp.3d, 2014 WL 6819547 (D.Colo.)   Petitioner Anthony Stead, a citizen of New Zealand, seeks the return of A.C.S., the son of petitioner and respondent.   Respondent raised the affirmative defense that returning A.C.S. to New Zealand would result in grave risk of either physical or psychological harm or would otherwise place A.C.S. in an intolerable situation.  Petitioner filed his motion before respondent had designated an expert witness for the evidentiary hearing.   He did so based on respondent's stated intention,  to introduce expert testimony.   On November 24, 2014, respondent filed a witness list identifying Dr. Andrew Loizeaux,  presumably to provide expert testimony as to the psychological effects of returning A.C.S. to New Zealand. 

The District Court observed that Rule 702 of the Federal Rules of Evidence provides that:  A witness who is qualified as an expert by knowledge, skill, experience,  training, or education may testify in the form of an opinion or otherwise if:  (a) the expert's scientific, technical, or other specialized knowledge will help  the trier of fact to  understand the evidence or to determine a fact in issue;  (b) the testimony is based on sufficient facts or data;  (c) the testimony is  the product of  reliable principles and methods;  and (d) the expert has reliably  applied the principles and methods to the facts of the case. Petitioner did not contest the reliability of a potential expert opinion, only its relevance.   Relevance in the Rule 702 context is determined by Rule 401, which defines relevant evidence as evidence that "has any tendency to make a fact more or less probable than it would be without the evidence" and "the fact is of consequence in determining the action."   The analysis of relevance under Rule 401 requires a court to undertake two inquiries.   The first is a procedural question which derives from Rule 401's identification of "evidence having any tendency to make the existence of any fact ... more probable or less probable than it would be without the evidence."  This inquiry focuses on "whether the evidence is probative or factually relevant  to the proposition asserted."   Sims v. Great Am. Life Ins. Co., 469 F.3d 870,  881 (10th Cir. 2006).   The second inquiry, whether the evidence is "of consequence to the determination of the action," asks the substantive question of whether the proposition for which the evidence is offered is properly provable in the case.   To assess the relevance of proffered expert testimony, the Court must "look at the logical  relationship between the evidence proffered and the material issue that evidence is supposed  to support to determine if it advances the purpose of aiding the trier of fact."   Bitler, 400 F.3d at 1234.

The Court pointed out that Petitioner's motion sought to prohibit respondent "from unnecessarily increasing the expense and burden of this litigation by introducing irrelevant expert reports and testimony.  The Sixth Circuit has indicated that a grave risk of harm can only exist in two situations.   See Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996).   "First, there is a grave risk of harm when return of the child puts the child in imminent danger prior to the resolution of the custody dispute-e.g., returning the child to a zone of war, famine, or disease.   Second, there is a grave risk of harm  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.   Psychological evidence ... is only relevant if it helps prove the existence of one or these two situations."  While the Tenth Circuit has not explicitly adopted the standard outlined in Friedrich, it has noted that the grave risk exception imposes a  "strict demand" on the party claiming it and that " '[g]rave risk' means the 'potential harm to  the child must be severe, and the level of risk
and danger very high.' "   West v. Dobrev, 735 F.3d 921, 931 (10th Cir.  2013)
(citing  Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir. 2013)).  

Respondent argued that expert testimony on the impact of relocation to New Zealand is  necessary for the Court to evaluate her argument that the relocation presents an "aggregation of adjustment issues" that will result in grave psychological harm to A.C.S.   These issues include:  "(1)  a fundamental poverty commensurate with moving to another country without a home or job prospects or any likelihood of financial support for A.C.S.;  (2) an absentee father who has no  ability or intention to participate in raising A.C.S.;  (3) a situation where the Parties will be  unable to meet A.C.S.'s basic needs;  and (4) familial circumstances that are harmful to A.C.S."     Petitioner responds that none of the issues that respondent identifies are relevant to or even permissibly considered in the Court's analysis of the grave risk exception. 

    The Court found that the parties' finances and familial circumstances-the first, third, and fourth  issues raised by respondent-are irrelevant to the Court's determination of whether relocation poses a grave risk of harm to A.C.S., and that expert testimony as to the psychological effects of those circumstances is therefore irrelevant.   As petitioner points out, the State Department's analysis of the grave risk exception specifically forecloses consideration of the parties' financial situation upon relocation.   Public Notice 957, 51 Fed.Reg. 10494, 10510 (Mar. 26, 1986);  see also Krefter v. Wills, 623 F.Supp.2d 125, 136-37 (D.Mass.2009) ("a mere shortage of money is not, on its own, sufficient to establish an 'intolerable situation ' ");   Cook v. Scott,
2008 WL 2947692 at *5 (E.D.Mich. July 31, 2008) ("an 'intolerable situation' does not 
encompass return to a home where money is in short supply").

    As to respondent's claim that "familial circumstances that are harmful to A.C.S." are relevant  to the grave risk exception, the Court found that any evaluation of "familial circumstances"  would concern A.C.S.'s best interests, not respondent's affirmative defense.   While the Court has no doubt that poverty and lack of familial support place developmental stresses on children, and that an expert may testify that those  stresses have psychological effects, the Court's role in a petition filed under the Convention is not to determine the best situation for the child.  The Convention does not invite or empower the Court to discriminate against petitioners on the basis of wealth or familial ties. For the Court to hold that a petitioning parent's poverty or relative lack of family support rises  to the level of an intolerable situation would expand the grave risk exception beyond its intended narrow scope of protecting children from
a high risk of grave harm.   See 51 Fed.Reg. at 10510 (noting that the risk to  the
child must be "grave, not merely serious" for the exception to apply). The financial and familial issues respondent identified went  to the merits of the underlying custody dispute and did not rise to the level of a high risk of grave psychological harm.

  Respondent also argued that the Court should consider all of the factors that may present a  risk of psychological harm or otherwise create an intolerable
situation in the aggregate.  In support of this  approach, respondent cites Didur v. Viger, 392 F.Supp.2d 1268, 1273 (D.Kan.2005), rev'd and remanded on other grounds, 197 Fed.Appx. 749, 753 (10th Cir. 2006).  Didur, however, concerned  substantially different facts than this case and does not support respondent's argument that  expert testimony into the totality of circumstances of A.C.S.'s return to New Zealand is relevant.  Didur considered the aggregated effect of independent characteristics of the petitioning parent that contributed to an overall atmosphere of abuse and neglect, including depression, alcoholism, sexual abuse, and "inability to adjust."    The  Didur court found that while no individual issue identified would satisfy the grave risk exception, "in conjunction with all the other factors, they become legally significant."    In Didur, each issue  considered was independently relevant to determine the petitioner's "repeated neglect of [the child] and her emotional instability as a parent,", and aggregation simply assisted the court in determining whether that abuse and neglect rose to the level of a grave risk of harm.   Here, by contrast, respondent sought to use aggregation to bootstrap areas of inquiry that would not otherwise be relevant to the Court's analysis. Accepting respondent's approach would expand the scope of the grave risk exception in a  manner not contemplated by Didur.

    Because financial and familial circumstances were not relevant to application of the grave risk  exception, the Court  granted plaintiff's motion to exclude expert testimony on the  psychological effects of those circumstances.

The Court turned to the final issue that respondent  claimed required expert testimony:  petitioner's involvement in A.C.S.'s life.   Respondent characterizes petitioner as "an absentee father who has no ability or intention to participate in raising A.C.S.,"  and said that  petitioner has not had "any role in A.C.S.'s life since at least May 2013."  Petitioner noted that May 2013 was shortly after  respondent and A.C.S. traveled to the United States from New Zealand, and that giving any weight to criticism of petitioner's involvement with A.C.S. after respondent brought A.C.S. to the United  States against petitioner's will would be rewarding respondent for the unlawful retention.  The Court found that respondent had not met her burden of showing that expert testimony was  relevant to the Court's determination of whether the grave risk exception applies in this case.   In support of the proposed expert testimony, respondent offered only that petitioner had been an absentee parent since the time respondent brought A.C.S. to the United States.   Respondent provided no details as to why petitioner's relative lack of involvement in A.C.S.'s life from afar reflected an inability or unwillingness to care for A.C.S. in New Zealand.   Nor had respondent identified any circumstances that could lead the Court to conclude that  petitioner's lack of involvement in A.C.S.'s life since May 2013 created a risk of "serious abuse or  neglect" upon return to New Zealand or that the courts of New Zealand were "incapable or  unwilling to give the child adequate protection."   Moreover, respondent gave no indication of what her proposed expert would say as to the psychological risk to A.C.S. of relocation to New  Zealand beyond vague references to the parties' respective financial and family situations.   Given the absence of detail about the proposed testimony, the Court was unable to determine what, if any, weight to give it, and granted the motion.