In Pinto v
Barone, 2017 WL 2779700 (S.D. California, 2017) Brazilian citizens Luciana and
Andre Barone entered a divorce agreement that provided for joint custody and
allowed Luciana to travel to Boston with their two children, ages 5 and 11, for
a temporary four month visit. The agreement specified that after four months,
Andre would travel to Boston, which he did, and return to Brazil with the
children. The agreement also provided that
the stay in Boston is “non-extendable,” that the children “shall be delivered”
to Andre on January 13, 2017, and that Andre “shall return with them to Brazil”
where “they shall be delivered to the mother, for the beginning of the school
year in Sao Paulo.” Instead of turning the children over to Andre on January
13, 2017, Luciana fled to San Diego with the children. Applying the Hague
Convention to these facts, the court concluded that Luciana breached Andre’s
rights of custody as provided in the Brazilian divorce agreement. Since Luciana wrongfully retained the children
in the United States and no grave risk of harm was presented to the children by
returning them to Brazil, the Court granted Andre’s petition.
At the
hearing, Luciana suggested that the United States was the children’s habitual
residence since they had been present here since September 2016 and two state
courts (Massachusetts and California) issued TROs. However, it was undisputed
that “immediately before” Luciana retained the children in Boston, and then in
San Diego, the children were habitually resident in Brazil. The terms of the
divorce agreement made clear that “the settled intention of the parents” was
for the children to return to school in Sao Paulo and retain their Brazilian
domicile. Mozes v. Mozes, 239 F.3d 1067, 1078 (9th Cir. 2001). Moreover, the argument
that the children had acclimated to the United States lacked merit. Luciana was
temporarily permitted to be in the United States on a student visa, did not
have a job, and did not have a place for the children to stay. She was
dependent on financial support from Andre pursuant to the Brazilian divorce agreement.
During the course of several months, Luciana moved the children from Brazil, to
Boston, and then to San Diego, where the children were staying in a hotel until
funds were exhausted. At the time the
TRO issued, Luciana had vacated the hotel and her plans for food and shelter
were uncertain The Court stated that it “can say with confidence” that the
children’s attachments to the United States have not “changed to the point
where requiring return to the original forum would now be tantamount to taking
the child out of the family and social environment in which its life has
developed.”
The district court indicated that the only
colorable exception to return was whether a “grave risk” of harm exists if the
Court orders the children returned to Brazil. Luciana obtained a domestic
violence restraining order from a state court in Boston and another one in San
Diego. In the restraining order request. Luciana alleged that Andre called her
on January 29, 2017, and threatened to kill her and the kids. To overcome the
Convention’s imperative that courts return wrongfully retained children under
the grave risk exception, “[t]he potential harm to the child must be severe,
and the level of risk and danger required to trigger this exception has
consistently been held to be very high.” Souratgar v. Lee 720 F.3d 96, 103 (2d
Cir. 2013. Some courts, however, have found that a threat to kill the children
or a history of domestic violence qualifies as a grave risk. See Van De Sande
v. Van De Sande, 431 F 3d 567, 570 (7th Cir. 2005); Ermini v. Vittori, 758 F.3d
153, 164 (2d Cir. 2014). To determine if a grave risk of harm exists, the Court
heard testimony from Andre and Luciana. Luciana testified that in twenty years
of marriage, Andre never behaved violently except for a fight the day they
divorced—she says Andre hit her. Luciana claimed that after she obtained a TRO
in Boston, Andre threatened to kill her and the kids. Andre categorically
denied both allegations. He also offered a third-party declaration from Carmen
Gomide, Luciana’s good Samaritan host for a few weeks in San Diego, who opined
Luciana was unstable and said she feared Luciana would kill the kids.
The Court
concludes Luciana has failed to show by clear and convincing evidence a
“probability” that Andre will harm the children. The testimony revealed that both parents
deeply loved their children and were highly protective of them. There was no
credible evidence that Andre presents a grave risk of harm to the children. Notably,
after Andre was alleged to have threatened Luciana in Brazil, Luciana agreed to
shared custody of the children. No reports of violence were ever filed. And the
Brazilian divorce agreement was thereafter entered, in which joint custody was
awarded. In addition, when Luciana refused to comply with the divorce agreement
and called the police in Boston, Andre did not react with violence. He returned
to Brazil and pursued lawful options through the courts; he filed suit in
Brazil to enforce the divorce agreement, contacted the Central Authority (State
Department), and retained legal counsel in the United States and filed this
petition. Andre’s past actions confirmed that he would l comply with the Court’s
order to safely return the children to Brazil and abide by any custody decision
in the Brazilian courts, where that determination is properly made.
The court
granted the petition and directed that Andre return to Brazil with Pedro and
Luiz Felipe so the important matter of child custody can be determined by the
Brazilian courts. Andre was directed to pay all reasonable travel expenses for
the children and Luciana to return to Brazil.
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