De Souza v Negri, 2014 WL 7330770 (D. Mass) [Brazil] [Grave Risk of Harm] [Petition Granted]

In De Souza v Negri, 2014 WL 7330770 (D. Mass) on October 7, 2014, de Souza filed an emergency petition for the return of his five-year-old son, G.N.S., to Brazil. G.N.S. was the son of de Souza and Negri. They never married, but lived together and were in a relationship when G.N.S. was born in Brazil on January 20, 2009. According to de Souza, de Souza and Negri separated when G.N.S. was nine months old.  Negri testified that de Souza struck her when she was three months pregnant with G.N.S. and, from that point forward during their relationship, he was abusive toward her. Negri also claimed that when G.N.S. was around three years old, she left the child in de Souza’s care while she went to the pharmacy and that when she returned she noticed bumps and bruises on G.N.S.’s legs. When she inquired about what happened, Negri claimed that de Souza told her that it was her responsibility to take care of the child, not his, because he had no patience. Negri also claimed that de Souza became more aggressive toward her and that she called the police on one occasion. According to her account, after the police returned de Souza to his house, a short time later he returned and assaulted her.. Negri also claimed that the child, G.N.S., observed de Souza assaulting her. Although she never filed for a protective order from de Souza in Brazil, in October 2014 she sought asylum here, on the basis of this abuse. De Souza still lived in Águia Branca.  Negri lived in the same city. Both parents played a role in his care and upbringing. While at de Souza’s, G.N.S. lived with his father, his father’s parents and two sisters. While de Souza was working, de Souza’s mother would take care of him and G.N.S. would be in the care of de Souza’s aunt after school.. De Souza denied hitting G.N.S. or ever physically disciplining the child. De Souza’s aunt, who helped care for G.N .S., never observed any abuse or violence by de Souza. 

         The district court found that De Souza never gave Negri permission to remove G.N.S. from Brazil,. On or about December 11, 2013, Negri took G.N.S. after school one day and first went to another part of Brazil, Curitiba. Negri’s return was expected on January 24, 2014, but she did not return, and instead traveled to the United States. De Souza never gave Negri permission to travel with G.N.S. to the United States or, once here, to remain here. Once in the United States, de Souza had limited contact with G.N.S., having spoken to him only two or three times since his arrival here. 

The district court found that G.N.S.’s place of habitual residence was Brazil. The child was born in Brazil and both his parents, who had custody of him, lived there in separate districts in Águia Branca until Negri brought him to this country. Moreover, G.N.S.’s removal from his habitual residence, without the consent of his father, de Souza, was in violation of de Souza’s custody rights. There was no serious dispute that both parents, Negri and de Souza had custodial rights over G.N.S. The Court found that de Souza was exercising his custodial rights at the time that Negri removed their child from Brazil. The Court credited the testimony that de Souza gave no consent to G.N.S.’s removal and that de Souza was exercising his custodial rights as evidenced by his regular care of the child in Brazil The Court also credited de Souza’s testimony that he did not give consent to Negri to remove G.N.S. from Brazil to the United States. This lack of consent was corroborated by the nature of Negri’s removal of the child, without advance notice to de Souza, and also by the fact that Negri traveled to the U.S. with G.N.S. under a passport that was not in his name. The court concluded that de Souza had shown, by a preponderance of the evidence, that Negri’s removal of G.N.S. from Brazil was wrongful.

The Court found that Respondents had not satisfied their burden of proving, by clear and convincing evidence, either an Article 13 or 20 defense. Addressing the issue of grave risk of harm, the Court concluded that the Respondents had failed to show credible evidence that G.N.S. was in grave risk of harm if he is returned to Brazil. The only proffered evidence offered regarding any risk of harm to G.N.S. was the testimony of Negri, his mother and one of the Respondents. She alleged that G.N.S. observed de Souza’s abuse of her and that, on one occasion, when he was a few months old, she returned to find G.N.S. with bruises and bumps and that de Souza had expressed frustration with caring for the child in her absence. She had no corroboration of this allegation. Her husband, Sinoura, testified that he had observed bruises on G.N.S., but did not provide a time frame for these observations and noted that he did not know how these bruises got there.  There was credible and unrebutted evidence suggesting that G.N.S. has shown no signs of abuse. Whatever the state of de Souza and Negri’s relationship may have become, Respondents did not show that G.N.S., who spent a fair amount of time in the custody of de Souza and de Souza’s relatives before his removal from Brazil, was in grave risk of harm.

Similarly, the Respondents  failed to meet their burden of proving an Article 20 defense that returning G.N.S. to Brazil would violate fundamental principles relating to the protection of human rights and fundamental freedoms. This defense requires a similarly high burden, which is appropriate  where the Article 20 proffer arises out of the same nucleus of facts (i.e., that it would be inhumane to return G.N.S. where he has been subject to abuse by de Souza and witness to abuse of his mother by de Souza).  Moreover, although Negri filed for asylum here on largely the same basis, (i.e., alleged abuse by de Souza), she did so, not when she first arrived in the United States with G.N.S. in January 2014, but soon after de Souza initiated this Hague Convention case. Accordingly, the petition for return was granted.