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Wednesday, May 16, 2018

LM v JF, 2018 WL 2171080 (Sup. Ct., 2018)[Dominican Republic] [Habitual Residence][Grave risk of harm]

In LM v JF, 2018 WL 2171080 (Sup. Ct., 2018) the Court granted the mothers Hague Convention Petition for an order directing the return of the parties son to the Dominican Republic.

The parties were never married. The Mother was a citizen of the Dominican Republic and the Father was a citizen of the United States. The parties met in 2010 in the Dominican Republic where both were enrolled in medical school. The Child was born in the Dominican Republic, was raised in the Dominican Republic and spent time each year visiting the Father’s family whom resided in Levittown, New York. Prior to the Child’s first visit to the United States the parties obtained a United States passport and United States citizenship for the Child. During a stay in New York in or about April, 2013, the parties obtained a social security card on behalf of the Child listing the Levittown, New York, address as the Child’s residence.

The Mother graduated from medical school in 2011. In August, 2014, the Mother left for Rochester, New York to begin studies for a Masters Degree while the Father remained in the Dominican Republic with the Child. The Mother visited the Child and communicated with the Child via “Skype” while in Rochester.   In August of 2015, the Father learned that the Mother had become romantically involved with another man while in Rochester, New York. The Mother completed her Master’s Degree and returned to the Dominican Republic in February, 2016. Upon her return, the Mother stated that the Father did not allow her to see the Child until four days later. She  sought the assistance of the Dominican Republic courts and the parties agreed to an “informal arrangement” where the Mother would be permitted to spend time with the Child. In March, 2016, the Mother filed documents with the authorities in the Dominican Republic to prevent the Father from leaving the Country with the Child without her consent. On March 15, 2016, there was an altercation between the parties wherein the Father alleged the Mother had pushed her way inside his home and physically lunged at him. The parties returned to court and obtained a reciprocal “order of protection.”

On October 19, 2016, both parties, while represented by counsel, appeared in court and agreed to an order wherein they would equally share time with the Child. On November 30, 2016, the Father, the Child and the Paternal Grandmother, traveled to the Father’s parent’s home in Levittown, New York, with no intention of returning. On December 5, 2016, the Father filed a custody petition in Family Court which granted the Father’s application for sole legal and residential custody of the Child upon the default of the Mother. The Mother commenced this proceeding on August 23, 2017 by Order to Show Cause seeking an Order directing the Child’s return to the Dominican Republic.

Supreme Court found that the Dominican Republic was the child’s habitual residence under the analysis established by Gitter v. Gitter, 396 F.3d 124, 133 (2d Cir. 2005) as follows: “First, the court should inquire into the shared intent of those entitled to fix the child’s residence (usually the parents) at the latest time that their intent was shared. In making this determination the court should look, as always in determining intent, at actions as well as declarations. Normally the shared intent of the parents should control the habitual residence of the child. Second, the court should inquire whether the evidence unequivocally points to the conclusion that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents’ latest shared intent.”

Based upon the testimony the court concluded that, the Dominican Republic was the Child’s habitual residence. Although the Child enjoyed frequent visits to New York where he stayed in the home of the Father’s parents, the majority of his life was spent in the Dominican Republic. It was where his home was, where he attended preschool, where he attended church and where his medical doctors were. There is a distinction to be made between a child who goes somewhere for a temporary duration and a child permanently moving to a new location. A Child who goes somewhere for a temporary duration, such as summer camp, is not considered to have acquired a new habitual residence because “he already has an established habitual residence elsewhere and his absence from it—even from an entire summer—is not indication that he means to abandon it.” Gitter v. Gitter, 396 F.3d 124 (2d Cir. 2005) (quoting Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001). There was no evidence that the Child unequivocally acclimated to a location other than the Dominican Republic so as to allow the Court to disregard the intent of the parties. The fact that Child may have acclimated to the United States from the time he was removed on November 30, 2016 until now is not the acclimation intended under this habitual resident analysis: The change in geography must occur before the questionable removal; here, the removal precipitated the change in geography. If we were to determine that by removing Thomas from his habitual residence without Mr. Friedrich’s knowledge or consent Ms. Friedrich ‘altered’ Thomas’s habitual residence, we would render the Convention meaningless.” (Friedrich v. Friedrich, 983 F.2d 1396 (6th Cir. 1993) Supreme Court also found that the Mother had rights of custody at the time the Father and Child left the country and she was exercising her custody rights when the Child was removed. It found that the Mother had met her burden and established by a preponderance of the evidence that the Child was wrongfully removed from his place of habitual residence.

Supreme Court noted that with regard to the grave risk of harm defense the parent opposing the Child’s return must show that the risk to the child is grave, not just serious, and the harm must be more than a potential harm. There must be a direct threat to the Child upon his return to the Dominican Republic in order for this exception to apply. The Court considered the testimony of the Father and the Paternal Grandmother regarding allegations that the Mother abused or neglected the Child and that the Dominican Republic authorities did not satisfactorily address these allegations.
The Father presented photographs of the Child depicting unclean fingernails, an ear infection, mosquito bites, scabbing, cuts, burns and rashes. The Father testified that was the condition the Child was in when he returned from the Mother’s care in 2016. The Father testified that he went to court representatives with the Child, to the police and to child protective services but that no assistance was provided to him. The Father did not provide any records of said reports. On cross examination, the Father testified that the child is considered to be hypersensitive to mosquito bites and that the scars on his body were caused by scratching scabies. He testified that the Child had only one ear infection and although he did  not know with certainty what caused it, he concluded it was the Mother’s fault. The Child’s medical records were reviewed and the Father testified that the pediatrician’s records stated that the Child was regularly brought to his office as a healthy child who was at times afflicted by allergies to insect bites. There was no mention of any burns or any child abuse. The Father testified that since November, 2017, the Child cried, screamed and begged the Father to not make him see the Mother before the Mother’s parenting time. He testified that the Child returned from visits with the Mother angry and sad. The Father also testified that he did not believe the court in the Dominican Republic did or would do anything about his concerns. However, the Father offered no credible evidence that the courts failed to act on a legitimate threat to safety of the Child. He offered no basis for this Court to conclude that the Dominican Republic authorities had not and will not act in the best interests of the Child.

The Father offered the testimony of an expert in the field of forensic evaluations and children’s mental health who never interviewed or observed the Mother. She concluded that the Child was suffering trauma due to the relationship with the Mother but testified that the cause of that trauma could not be clinically ascertained. On cross examination, the witness testified that the trauma could be because the Child was used to being with both of his parents, or it could be because he did not see the Mother, or it could be some other reason. The Court was not convinced that the Child’s reaction to the mention of the Mother was because of abuse or neglect at the hands of the Mother. The expert agreed on cross examination that while she believed the Child’s trauma related to the Mother, it could be because of the trauma of the removal or some other reason. 

The Court  found that the Child’s comfort in his current environment was not a basis for the Child to remain in the United States. Whatever re-adjustment period the Child may have to undergo in the Dominican Republic is not considered a “grave harm” under the Convention. It is well established that the “harm” set forth in the grave harm exception must be “greater than would normally be expected on taking a child away from one parent and passing him to another.” Madrigal v. Tellez, 848 F.3d 669 (5th Cir. 2017); Nunez–Escudero, 58 F.3d 374 (8th Cir. 1995).

The Court held that the Father had not established, by clear and convincing evidence, that the Child will be subjected to a grave risk of harm if he returned to the Dominican Republic or any other affirmative defense.