Asumadu v Baffoe, 2018 WL 3957696 (D. Arizona, 2018)[Canada] [Habitual residence] [Petition granted in part and denied in part]

          In Asumadu v Baffoe, 2018 WL 3957696 (D. Arizona, 2018) the district court granted in part and denied in part Asumadu’s Petition for Return of Children to Canada. Based on the Court’s finding that A.K.A.’s habitual residence was the United States, Asumadu did not make the showing required under the Hague Convention for a mandatory return of A.K.A. to Canada.  However, based on the Court’s finding that K.A.A.’s habitual residence was Canada and that Baffoe had not established by the requisite levels of proof that any of the narrow exceptions apply, Asumadu made the showing required for a mandatory return of K.A.A. to Canada.

          Asumadu and Baffoe were both born in Ghana. Asumadu immigrated to Canada in 1995 and was a Canadian citizen. Baffoe immigrated to the United States in 2004 and was a United States citizen. In 2005, the couple began a long-distance relationship. Although the couple lived apart for the majority of their relationship, Baffoe periodically traveled to Canada to visit Asumadu and visa-versa. In September 2016, Baffoe relocated to Canada, where she lived with Asumadu until returning to the United States in January 2018. Asumadu and Baffoe had two children together. Their son, K.A.A., was born on February 6, 2008, and their daughter, A.K.A., was born on July 20, 2011. Both children were born in the United States.

          K.A.A. lived in the United States with Baffoe until January 2010, when he moved to Canada to live with Asumadu.  K.A.A. lived there since January 2010. Baffoe contended that between 2010 and 2015 she made three unsuccessful trips to Canada to retrieve K.A.A. and return him to the United States. Baffoe testified that her efforts were thwarted by her fears of violent and physical retribution by Asumadu. Baffoe failed to take any legal action to have K.A.A. returned, testifying that doing so would be contrary to Ghanan custom and cultural norms. According to Baffoe, consistent with these cultural norms, she sought assistance from Asumadu’s parents and the elders of their village in Ghana. She was instructed to be patient.

          A.K.A., always lived in the United States with Baffoe. In 2016, Baffoe was in contact with Asumadu’s father, who advised her that Asumadu had changed and promised that if she joined Asumadu in Canada he would not mistreat her. In September 2016, Baffoe and A.K.A. made the trip to Canada. According to Baffoe, her plan was to give Asumadu a chance to prove that he would not be abusive. If he behaved, Baffoe intended to stay; if not, she intended to return to the United States with both children. Baffoe claimed that, upon her arrival in Canada, she immediately discovered that K.A.A. had suffered an untreated serious head injury. In support, she offered a picture K.A.A.’s head showing a small scarred area.

          Baffoe, Asumadu, and their two children resided together in Canada from September 2016 until January 2018. During that period, Baffoe testified that there were three serious incidents of domestic disturbance arising out of seemingly minor disagreements. In January 2018, while Asumadu was at work, Baffoe left Canada for the United States with both children. She did not tell Asumadu she was leaving or where she was going. After Asumadu located Baffoe in Arizona, he filed a petition for return of his two minor children, K.A.A. and A.K.A., to Canada.

          The district court found that Asumadu had not proven by a preponderance of the evidence that the parties had a shared intent for A.K.A. to habitually reside in Canada. After A.K.A. was born in July 2011, Baffoe and A.K.A. lived together in the United States until November 2015, when they visited Petitioner for ten to eleven weeks. Baffoe and A.K.A. made the 2015 visit and returned without abandoning their residence in the United States. The two made another lengthy trip to Canada in September 2016 on a trial basis. The Court credited Baffoe’s testimony that it was not her intent to make Canada her and A.K.A.’s permanent home unless and until she was convinced that Asumadu no longer would be abusive. Shortly after living with Asumadu during this trip, Baffoe concluded that he had not changed and began planning her return to the United States. Although she lived in Canada for more than a year, there was never a shared intent for A.K.A. to live anywhere other than with Baffoe. As such, A.K.A.’s habitual residence remained the United States. Because Asumadu had not proven by a preponderance of the evidence that A.K.A.’s habitual residence was Canada, his petition was denied as to this child. See Papakosmas v. Papakosmas, 483 F.3d 617, 621 (9th Cir. 2007).

          On the other had the court found that Asumadu had proven, that the parties had a shared intent for K.A.A. to habitually reside in Canada. For example, in January 2010, Asumadu travelled to the United States and moved K.A.A. to Canada. K.A.A. lived in Canada with Asumadu for eight years until he was removed by Baffoe in 2018. Although Baffoe contended Asumadu moved K.A.A. to Canada without her consent, the evidence did not support her contention. For instance, Baffoe signed an authorization for Asumadu to receive the Canadian tax benefit because K.A.A. lived with him in Canada. Baffoe also visited Canada multiple times after K.A.A. moved there, but until 2018 always returned to the United States without him. Nor did she inform law enforcement or file a petition under the Hague Convention seeking return of K.A.A. to the United States. Moreno v. Zank, 895 F.3d 917, 924-925 (6th Cir. 2018) (“[I]f Convention procedures are not fully pursued when a child is first abducted, it makes little sense to categorically permit later self-help abduction in the other direction, after the child has been acclimatized in the second country.”). Instead, Baffoe first raised her alleged lack of consent in the context of this proceeding, eight years after K.A.A. moved to Canada. The Court therefore found that the parties agreed in 2010 for K.A.A. to live in Canada with Asumadu and that his habitual residence is Canada.

          Baffoe raised the grave risk exception, which provides that the Court “is not bound to order the return of the child if ... there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Id. at 13(b), 19 I.L.M. at 1502. The party raising this exception must prove by clear and convincing evidence that returning the child to his habitual residence would expose him to physical or psychological harm or otherwise place him in an intolerable situation. Gonzalez, 194 F. Supp. 3d at 901. Baffoe claimed that Asumadu’s threats and acts of violence toward her committed in the presence of the children demonstrate that the children would be exposed to a grave risk of physical or psychological harm.  Despite the lack of corroborative evidence, the Court found he description of events provided by Baffoe was consistent with her having been the victim of some form of domestic violence. It was difficult to determine the full nature of the violence, but the Court found Asumadu likely struck Baffoe on more than one occasion. The Court, did not find the allegation that Asumadu put a knife to Baffoe’s throat credible. Nevertheless, physical abuse or threats towards a spouse are not the same as physical abuse or threats towards a child. See Nunez Escudero v. Tice-Menley, 58 F.3d 374, 375-78 (8th Cir. 1995); Tabacchi v. Harrison, No. 99-C-4130, 2000 WL 190576, at *12-16 (N.D. Ill. Feb. 10, 2000) (“Although [Petitioner’s abusive] behavior toward his wife is unacceptable, to qualify as a grave risk of harm under the convention, the risk must be to the child.”). Given the narrowness of this exception, the Court could not conclude that Asumadu’s acts of violence against Baffoe satisfied the grave risk requirement under the Convention. It held that      Baffoe had not proven by clear and convincing evidence that there was a grave risk that the return of K.A.A. would expose him to physical or psychological harm or otherwise place him in an intolerable situation.

          Baffoe argued that the consent or acquiescence exception applies. The Court found that the parties’ actions surrounding the removal were not consistent with a consensual removal of the children. Based on this evidence, Baffoe had not shown by a preponderance of the evidence that Asumadu consented to K.A.A.’s removal to the United States from Canada.