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Thursday, December 19, 2019

Mohacsi, v. Rippa, 2019 WL 6810060 (2d Cir.,2019)[Hungary] [Grave risk of harm] [Petition denied]

In Mohacsi, v. Rippa, 2019 WL 6810060 (2d Cir.,2019) the Second Circuit affirmed a judgment, denying the petition of Petitioner-Appellant Gabor Zsolt Mohacsi claiming that Respondent-Appellee Isabella Sofia Rippa Herrera1 wrongfully removed the parties’ son, NIR, from Hungary and wrongfully retained him in the United States. 

Petitioner and Respondent met in Hungary and started dating when Petitioner was 38 and Respondent was 19. Soon after Respondent moved in with Petitioner, their relationship began to deteriorate. Respondent learned that Petitioner drank alcohol daily and used ecstasy. Petitioner began verbally abusing Respondent and demanding that she have sex with other men in front of him, which she resisted. One night, Petitioner invited a drug dealer to the house and told Respondent to have sex with him. Although she refused Petitioner’s request about ten times, she eventually relented because she felt that she had nowhere else to go that night. Petitioner videotaped the ensuing sexual encounter and uploaded it to his YouTube channel. The next day, he forced Respondent to watch the video during sex as a “punishment.” The verbal abuse and non-consensual sex continued, eventually accompanied by physical abuse. Petitioner physically assaulted Respondent on more than one occasion, slapping and choking her when he was angry.

The parties broke up in June 2014. At the time, Respondent was pregnant with NIR. After that, Petitioner made publicly available his videos of sexual encounters involving Respondent and sent her screenshots to remind her that she was “nasty and worthless.”. He also, on one occasion, threw a rock through the window of the apartment where Respondent was staying and threatened to kill her. Although Petitioner was sentenced to community service as a result of this incident, Respondent was unable to obtain a protective order.3

In August 2015, Respondent left Hungary for the United States with NIR, who was then less than a year old. In June 2016, a Hungarian court issued a paternity decision declaring Petitioner to be the father of NIR. Petitioner continued to harass Respondent, sending pornographic images of her to her father and threatening to show the pornographic images to NIR as well.

At the hearing in the District Court, Respondent presented unrebutted expert testimony from Dr. B.J. Cling, a psychologist specializing in domestic violence, harm against women, child abuse, and sexual harassment. Based on her psychological examination of Respondent, Dr. Cling testified that Respondent was suffering from mild post-traumatic stress disorder related to her relationship with Petitioner. Dr. Cling opined that Petitioner’s abuse of Respondent would likely continue and even intensify were Respondent to return to Hungary with NIR and that there was a “high likelihood” that NIR would develop a “psychological disorder should he witness such abuse.” Dr. Cling also testified that, statistically speaking, Petitioner was likely to abuse his child directly and that the incidents where Petitioner accosted Respondent when she was holding NIR indicated “a certain disregard of the child.” 

The District Court credited Respondent’s testimony, finding her demeanor believable and her testimony corroborated by the record, while Petitioner was “defensive,” “at times aggressive,” and sometimes “appeared to be simply lying.” The District Court also credited Dr. Cling’s testimony.

The District Court determined that Petitioner failed to establish a prima facie case of wrongful removal or wrongful retention, and that even if he could establish wrongful removal or wrongful retention, his petition would still be denied because Respondent established the applicability of two independently sufficient defenses. the District Court concluded, that Respondent established by clear and convincing evidence that NIR would face a “grave risk of harm” if returned to Hungary. With respect to Petitioner’s threat, the District Court noted that exposing young children to inappropriate sexual material can constitute psychological abuse. The District Court also determined that the protections available under Hungarian law were insufficient to mitigate the grave risk of harm to NIR given Petitioner’s testimony about his relationship with the local police commander and Respondent’s inability to obtain a protective order despite making multiple police reports about Petitioner.

The Second Circuit observed that Under Article 13(b) of the Hague Convention, a court is not bound to order the repatriation of a child if “[t]here 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 establishment of such a risk is an affirmative defense to a claim of wrongful removal or retention under the Hague Convention. See Souratgar v. Lee, 720 F.3d 96, 102–03 (2d Cir. 2013).It found no factual or legal error in the District Court’s determination that the repatriation of NIR to Hungary would expose NIR to a grave risk of harm within the meaning of the Hague Convention. It is true, as Petitioner emphasized, that “[t]he potential harm to the child must be severe, and the level of risk and danger required to trigger this exception has consistently been held to be very high.” The exception has been established, however, “where the petitioner showed a ‘sustained pattern of physical abuse and/or a propensity for violent abuse’ that presented an intolerably grave risk to the child.” “Evidence of ‘[p]rior spousal abuse, though not directed at the child, can support the grave risk of harm defense.’” Here, the District Court’s assessment of grave risk was based not only on Petitioner’s abuse of Respondent but also on Dr. Cling’s testimony that Petitioner was statistically likely to abuse NIR directly and on Petitioner’s threat to show the pornographic images of Respondent to NIR. The credibility of that threat was borne out by the fact that Petitioner has sent such images to other members of Respondent’s family.

“Mindful that the assessment of the credibility of witnesses is peculiarly within the province of the trier of fact and is entitled to considerable deference,” Mackler Prods., Inc. v. Cohen, 225 F.3d 136, 145 (2d Cir. 2000) it saw  no reason to question the District Court’s credibility findings in this case.

Petitioner also challenged the District Court’s decision to credit Dr. Cling’s testimony that Petitioner would likely abuse Respondent and NIR were they to return to Hungary, asserting that it is “improper generalized testimony” because Dr. Cling never examined Petitioner. The District Court addressed this point, which was made during cross-examination of Dr. Cling, by noting Dr. Cling’s explanation that her testimony was based on several psychological risk factors and statistics about abusers. Petitioner cited no authority indicating that it is improper for a district court to rely on a psychologist’s testimony if that testimony is based on social science research rather than in-person examination. Cf. Walsh v. Walsh, 221 F.3d 204, 220 (1st Cir. 2000) (“[C]redible social science literature establishes that serial spousal abusers are also likely to be child abusers.”).

Petitioner asserted that his relationships with his other children were “devoid of any abuse.” Accepting as true the statements that Petitioner had not abused his other children, it could not say that the District Court clearly erred in giving greater weight to Dr. Cling’s testimony that Petitioner was statistically likely to abuse NIR. See United States v. Murphy, 703 F.3d 182, 188 (2d Cir. 2012) (“Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.”). In any event, Petitioner’s relationships with his other children do not bear on whether he will abuse Respondent if she returns to Hungary.

Finally, Petitioner asserted that “Hungary provided ample protection for children and adults from domestic violence and other abuse. The only support in the record for that proposition was the testimony of Petitioner’s Hungarian law expert that Hungary’s Child Protection Act provides “different measures for the State to protect children.”. That Hungary has such a law does not undermine the District Court’s finding, based on the specific circumstances of this case, that the protections available under Hungarian law do not mitigate the risk of harm to NIR.

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