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Thursday, September 14, 2017

Pinto v Barone, 2017 WL 2779700 (S.D. California, 2017)[Brazil] [Grave Risk of Harm] [Petition granted]

          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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