Eidem v Eidem, 2019 WL 6704977 (2d Cir.,2019) [Norway] [Grave risk of harm] [Petition granted]

In Eidem v Eidem, 2019 WL 6704977 (2d Cir.,2019) Respondent-Appellant Dana Marie Eidem (“Dana Marie”) appealed from a judgment of the District Court granting the application of Petitioner-Appellee Per Magne Eidem (“Per Magne”) for an order directing the return of his two sons to Norway. 

Dana Marie appealed only the District Court’s ruling with respect to her “grave risk” defense, which prevents signatory States from ordering the return of a child when “his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Hague Convention, art. 13(b) (“grave risk” defense). 

In 2008, Dana Marie and Per Magne, then married, had their first child, T.E., in Norway. Shortly after T.E.’s birth, he was diagnosed with Hirschsprung’s disease, a condition in which nerves in parts of the intestine are missing. As a result of his disease, when very young, T.E. underwent a “pull-through” surgery at a hospital in Trondheim to remove part of his colon. In 2010, the parties had their second child, N.E., who struggled academically from a very young age. Both children required psychological care. In June 2013, Dana Marie sought legal separation from Per Magne in Norway courts. The parties agreed to share custody of the children. Three years later, during the summer of 2016, Per Magne consented to Dana Marie traveling with the children to the United States for a one-year period, and Dana Marie and the children came to New York City. In January 2017, Per Magne began making arrangements with Dana Marie for the children’s eventual return to Norway. Dana Marie informed Per Magne that she would return with the children to Norway on August 8, 2017. On that day, Per Magne went to meet them at the airport where they were expected, but they did not appear. Still in New York City, Dana Marie proceeded to cut off all communication with Per Magne. On July 6, 2018, Per Magne petitioned in the United States District Court for the Southern District of New York for the children’s return.

On April 29, 2019, after an evidentiary hearing, the District Court granted Per Magne’s petition and ordered that the children be returned to Norway by June 29, 2019. It rejected Dana Marie’s “grave risk” defense, concluding that she did not sustain her burden of proof and that she lacked credibility. The District Court found that Dana Marie failed to establish that medical care in Norway “is so lacking” as to pose a grave risk to T.E.’s health or that the children would be deprived of adequate psychological care upon their return to Norway. Eidem v. Eidem, 382 F. Supp. 3d 285, 293-94 (S.D.N.Y. 2019).

The Second Circuit observed that because of the strong presumption that children should be returned to the place of their “habitual residence,” it interprets the grave risk defense narrowly. Blondin v. Dubois, 189 F.3d 240, 245-46 (2d Cir. 1999) (“Blondin I”).

On appeal, Dana Marie argued, inter alia, that (the record clearly established that an order directing the children’s return to Norway would place them at grave risk. She maintained that, in Norway, the children would have limited access to medical treatment and emergency services (for T.E.), and psychological supports for both children, each of whom had unique mental health and learning needs. The Second Circuit concluded that the record, as it existed after the October 8, 2018 hearing, established that the children would not be at grave risk if returned to Norway. Dana Marie failed to establish by clear and convincing evidence that in Norway the children would receive inadequate medical and psychological care. Neither Dana Marie nor the medical experts she relied upon took the position that in Norway, T.E. would not have any treatment or care for his disease. As the District Court noted, less than optimal medical care does not equate to grave risk and is not the standard set for permitting a parent to remove a child from his habitual residence. Eidem, 382 F. Supp. 3d at 293 (“[T]he narrow question before the Court is not whether [the doctors in New York] are best suited to manage T.E.’s condition, but whether access to medical care in Norway is so lacking as to pose a grave risk to T.E.’s health.”). In Blondin II, it ruled that the “grave risk” defense does not apply to “those situations where repatriation might [merely] cause inconvenience or hardship.” 238 F.3d at 162. It agreed with the District Court that Dana Marie did not establish by clear and convincing evidence that T.E. would receive inadequate medical care in Norway and would be subject to “grave risk.”

As to the children’s psychological care, the District Court reasonably credited the conclusion of Dr. Rahtz, a psychiatric evaluator who testified on Dana Marie’s behalf. Dr. Rahtz raised concerns about disrupting the children’s current support and care network in New York. But the District Court put the calculus appropriately: While disrupting the children’s current mental health treatment may not be desirable, the children had to undergo a similar disruption when [Dana Marie] first pulled them out of their mental health treatment programs in Norway and took them to the United States. Indeed, there was reason to believe that a return to Norway—where the children lived for the first eight and six years of their lives, and where the vast majority of their family resided—would be less traumatic than the original trip to the United States. Eidem, 382 F. Supp. 3d at 294.  It concluded that the record demonstrated that Dana Marie did not carry her burden of establishing her grave risk defense by clear and convincing evidence.