In Farr v Kendrick, 2019 WL 2568843
(D. Arizona, 2019) the district court denied the fathers petition for return.
At the outset the court noted that
ICARA proceedings must be conducted on an expedited basis and should, at least
as an aspirational matter, be completed within six weeks of when the petition
was filed. See, e.g., Lops v.
Lops, 140 F.3d 927, 944
(11th Cir. 1998). In recognition of these
challenges, the Ninth Circuit has stated that district courts should “‘use the speediest
procedures’” available when adjudicating ICARA claims. Holder, 392 F.3d at 1023 . Given this backdrop, the Court concluded it was
not required to strictly comply with the Federal Rules of Civil Procedure or
the Federal Rules of Evidence when conducting the proceedings in this case. The
Court utilized procedures that were, in its view, best suited to achieve a
fair, expeditious, and just outcome.
In 2007, Father and Mother met in Texas. At
the time, Mother had a five-year-old child (Z.A.K.) from a previous
relationship. In 2009, Mother became pregnant with Father’s child. However, by
the time the child (a boy named K.M.K.F.) was born in December 2009, the couple
had separated, with Father living in Mexico and Mother living in the United
States. In 2011, Father was hospitalized in Texas due to drug-induced “psychosis,” which was caused, at least in part, by Father’s recurrent
use of illegal hallucinogenic drugs. Following this incident, Father became more
religious. Father’s increasing religious devotion resulted in tension between
Father and certain members of his family all of whom came to view Father’s
methods for disciplining the Children (which were e rooted, in part, in
Father’s religious beliefs) as abusive and inappropriate. At some point in
2012, Mother and Father began living together in Texas with K.M.K.F. In May
2014, Father and Mother got married in Texas. In February 2015, the Children
were born in Texas. In August 2015, Mother, Father, Z.A.K., K.M.K.F, and the
Children moved to Mexico so Father could pursue a job opportunity with a
company owned by his sister. In October 2016, Mother took a trip to Texas to
visit family members. During this trip, Father had a second “psychosis”
episode that required medical care. In
January 2017, Mother and Father separated and began living in different
residences in Mexico. Following the separation, Mother and Father shared joint
custody of the Children. In July 2017, Father filed for divorce from Mother in
Mexico. In April 2018, Mother filed a criminal complaint (Exhibit 94) against
Father with Mexican law enforcement authorities, which resulted in the entry of
a protective order against Father. Among other things, Mother asserted in this
complaint that “violence physical, emotional and economic [had been] exerted on
me by” Father. In June 2018, the protective order was dissolved and Father was
allowed to continue exercising custody of K.M.K.F. On August 11, 2018, Mother left Mexico with
the Children and began living with the Children in Lake Havasu City, Arizona.
K.M.K.F remained in Mexico living with Father. In September 2018, a Mexican
court entered a divorce decree that dissolved Father’s and Mother’s marriage. In
October 2018, Father married a new wife, Alejandra Rodriguez, in Mexico.
The district court found that the
United States was the children’s habitual residence. The first step in the
analysis is to assess whether Mother and Father “had a settled intention to
abandon the United States as the children’s habitual residence in favor of
[Mexico].” Holder, 392 F.3d at 1016. “Mother and Father did not have a shared, settled intent
to abandon the United States as their habitual residence. The evidence pointed
overwhelmingly toward the conclusion that the move to Mexico was temporary and
provisional., The Ninth Circuit’s decision in Murphy supports
the conclusion that there was no settled intent to abandon the United States as
a habitual residence under these circumstances. 764 F.3d at 1147-48. Because Father and Mother lacked a shared, settled intent
to abandon the United States as their habitual residence, the Court proceeded
to the second step of the analysis, which is to “ask[ ] whether there has been
sufficient acclimatization of the child to trump this intent.” Murphy, 764 F.3d at 1150. In general, the concept of acclimatization reflects the
principle that, “given enough time and positive experience, a child’s life may
become so firmly embedded in the new country as to make it habitually resident
even though there [may] be lingering parental intentions to the
contrary.” Mozes, 239 F.3d at 1078. The Ninth Circuit has cautioned, however, that “ ‘courts
should be slow to infer [acclimatization],’ both because the inquiry is fraught
with difficulty, and because readily inferring abandonment would circumvent the
purposes of the Convention.” Murphy, 764 F.3d at 1152-53 . Here, the question of acclimatization wasn't close.
The Children were less than a year old at the time they moved to Mexico and
were only three years old when they returned to the United States. They did not
speak Spanish and were not enrolled in school when in Mexico. The Ninth Circuit
has emphasized that it would be “practically impossible” for “a newborn child,
who is entirely dependent on its parents, to acclimatize independent of the
immediate home environment of the parents.” Holder, 392 F.3d at 1020-21. This rule precludes any suggestion that the Children
somehow acclimatized to life in Mexico as toddlers.
The Court noted that Article 13(b)
of the Convention provides that a wrongfully-removed child need not be returned
to his or her country of habitual residence 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.” The Ninth Circuit has
emphasized that the grave-risk exception must be “drawn very narrowly” and “is
not a license for a court in the abducted-to country to speculate on where the
child would be happiest.” Gaudin, 415 F.3d at 1035, 1036 “Rather, the question is whether the child would
suffer ‘serious abuse’ that is ‘a great deal more than minimal.” Additionally, “because the Hague Convention provides only a
provisional, short-term remedy in order to permit long-term custody proceedings
to take place in the home jurisdiction, the grave-risk inquiry should be
concerned only with the degree of harm that could occur in the immediate
future.” The Court concluded that mother met her burden of clearly and
convincingly proving its applicability. In reaching this conclusion, the Court
acknowledged there are multiple pieces of evidence that suggested Father was a
loving and committed parent who did not resort to violence when angry and ,
Father’s past “psychosis”
incidents were not terribly concerning, he’s was drug-free since 2016 and his
commitment to his sobriety and children appeared to be sincere.
Nevertheless, the evidence
concerning Father’s administration of corporal punishment was deeply troubling
and led the Court to conclude the grave-risk exception was been satisfied. As
for frequency, Mother testified that Father would spank the Children (who were
between 0-3 years old during their time in Mexico) on a daily basis and would
spank K.M.K.F. (who was under 10 years old) up to three times per day. Although
Father gave slightly lower estimates, he still acknowledged that he was
administering physical punishment many times each week. As for the manner of
administration, Father initially used sections of PVC pipe and wooden dowels
and later began using color-coded plastic rulers (whose colors correspond with
different “sins”). The punishment was usually administered behind closed doors,
with the child’s pants pulled down. During one episode, Father spanked K.M.K.F.
more than 20 times. Finally, as for the risk of injury, the Children were
spanked so hard that, on at least five occasions, they sustained bruises and
visible raised, red marks. Father admitted that he administered an average of
more than one set of spankings each day over a period of three
years, which suggested he wasn't reserving punishment for major transgressions,
and Mother provided testimony (which Father didn't dispute) that Father would
punish the Children for bathroom “accidents,” which hardly constitutes
misbehavior. The Children were very young at the time these punishments were
being administered. In one of the photos depicting visible bruising, Mother
estimated the child was only 20 months old. The Court questioned whether a
child of this tender age can comprehend why he is being punished. Finally,
although Father’s use of a ruler wasnot per se unlawful
the repeated infliction of bruises and other visible marks suggested Father
exceeded the scope of reasonable discipline , causing bruising, although
he denied intending to leave bruises).
Here, it was unlikely the Children
would suffer grievous bodily injury if returned to Father’s
care, although the multiple past instances of bruising were re troubling and
unacceptable, there is a difference between bruises and more serious
injuries. Additionally, although it seemed intuitively correct that
exposing a child to excessive corporal punishment that is (or borders on) child
abuse can't be good for the child’s psychological health, there was no expert
testimony presented in this case that touched upon how the Children’s
psychological health would be affected if they were returned to Father’s
custody for a short period of time necessary to complete Mexican custodial
proceedings (which, under Gaudin, appeared to be the only relevant
timeframe). Nevertheless, the bottom line was that returning the Children to
Father would create a virtual certainty the Children would be exposed to
conduct that likely constituted child abuse under the law of most states. In
the Court’s view, and in the absence of any case specifically holding
otherwise, that simply had to constitute “a grave risk that ... would expose
the child to physical or psychological harm or otherwise place the child in an
intolerable situation.” Cf. Simcox
v. Simcox, 511 F.3d 594, 605
(6th Cir. 2007) (although “there is no clear
answer” to the “difficult question [of] precisely what level [of abuse] will
expose the child to a ‘grave risk’ of harm,” most “courts that have confronted
abusive situations tend to refuse to order the return of the children, at least
where the abuse could be characterized as very serious”).
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