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Friday, December 8, 2017

Orellana v Cartagena, 2017 WL 5586374 (E.D. Tennessee, 2017) [Honduras][Grave risk of harm] [Fundamental Principals][Petition granted]

In Orellana v Cartagena, 2017 WL 5586374 (E.D. Tennessee, 2017) the district court granted the father’s petition for return of his child to Honduras.

  The Petitioner was the father of the Child, Respondent was the mother of the Child. The Child was born in Honduras on November 14, 2013, and that the Child resided solely in Honduras prior to her removal on or about September 11, 2015. The parties agreed that Respondent did not discuss the Child’s removal from Honduras with Petitioner before the Child was removed, nor did Respondent receive a custody order from any Honduras court granting Respondent full custody of the Child. Respondent alleged, however, that returning the Child to Honduras would pose a grave risk and that doing so would expose the Child to physical or psychological harm or otherwise place the Child in an intolerable situation. In addition, Respondent argues that returning the Child would not be permitted by the fundamental principles relating to the protection of human rights and fundamental freedom. 

Based upon the parties’ stipulations the evidence the Court found that petitioner established a prima facie case for return.

The district court noted that the grave risk defense provides that Respondent must demonstrate by clear and convincing evidence that returning the Child “would expose the child to physical or physiological harm or otherwise place the child in an intolerable situation.” Hague Convention, art. 13(b). The Sixth Circuit has elaborated as follows: 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. Friedrich, 78 F.3d at 1069.

  The Court found that Respondent had not shown by clear and convincing evidence that there was a grave risk of harm in returning the Child to Honduras. It observed that in cases of domestic assault, the Sixth Circuit has delineated three broad categories of abuse situations: “First, there are cases in which the abuse is relatively minor. In such cases, it is unlikely that the risk of harm caused by return of the child will rise to the level of a ‘grave risk’ or otherwise place the child in an ‘intolerable situation’ under Article 13b.” Simcox, 511 F.3d at 608. The second type of cases are those at the other end of the spectrum, “in which the risk of harm is clearly grave, such as where there is credible evidence of sexual abuse, other similarly grave physical or psychological abuse, death threats, or serious neglect.” Id. at 607-08. The third type of cases “fall somewhere in the middle, where the abuse is substantially more than minor, but is less obviously intolerable.” Id. at 608. The Sixth Circuit continued, “Whether, in these cases, the return of the child would subject it to a ‘grave risk’ of harm or otherwise place it in an ‘intolerable situation’ is a fact-intensive inquiry that depends on careful consideration of several factors, including the nature and frequency of the abuse, the likelihood of its recurrence, and whether there are any enforceable undertakings that would sufficiently ameliorate the risk of harm to the child caused by its return.” In reviewing the evidence, the Court found that the alleged abuse in this case insufficient to establish that there was a grave risk that returning the Child would expose her to physical or psychological harm or otherwise place her in an intolerable situation. While the testimony differed regarding Petitioner’s abuse toward Respondent, what was consistent throughout the testimonies was that Petitioner did not physically abuse the Child.  Nor was there any evidence that Petitioner verbally abused the Child. While the parties’ arguments occurred in front of the Child, the Court found that Respondent failed to demonstrate by the clear and convincing standard that the Child would be subjected to a grave risk of physical or psychological harm if she returned to Honduras.

The court indicated that pursuant to Article 20 of the Hague Convention, the return of a child may be refused if it would not be permitted by fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms. Respondent stated that it would violate the Due Process of Equal Protection Clauses of the United States Constitution to require the return of the Child where the mother faces legally sanctioned discrimination upon return and that it would cause the Child to be placed in an intolerable situation since custody would be determined based on discrimination. In support of her argument, Respondent stated that Honduran law provides that children will generally be left in the custody of the father. The Court found that Petitioner has not shown by clear and convincing evidence that the return of the Child violates the fundamental principles of the United States. The Honduran law does not shock the conscience and that “merely offending principles espoused” in the United States is insufficient to invoke the Article 20 exception.” Habrzyk v. Habrzyk, 759 F. Supp. 2d 1014, 1027 (N.D. Ill. 2011) (stating that the “Convention requires that the fundamental principles of the State not permit the return of the child; merely offending principles espoused in Illinois laws is insufficient”); see also March v. Levine, 136 F. Supp. 2d 831, 855 (M.D. Tenn. 2000), aff’d, 249 F.3d 462 (6th Cir. 2001) (explaining that “it should be emphasized that this exception, like the others, was intended to be restrictively interpreted and applied, and is not to be used, for example, as a vehicle for litigating custody on the merits or for passing judgment on the political system of the country from which the child was removed”) (quoting 51 Fed. Reg. at 10510); Walker v. Kitt, 900 F. Supp. 2d 849, 864 (N.D. Ill. 2012) (“To invoke Article 20 to refuse to return a child for anything less than gross violations of human rights would seriously cripple the purpose and effectivity of the Convention.”). Here, there was simply no evidence that the Child’s human rights and fundamental freedoms would be in jeopardy if returned to Honduras.

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