In Blancarte
v. Santamaria, 2020 WL 38932 ( E.D.
Michigan, 2020) Petitioner alleged that in January 2019, Respondent wrongfully
removed Petitioner and Respondent’s two daughters, ages 9 and 10, from Mexico
to the United States The Court ordered that the two children be returned to
Mexico.
Before
January 2019, Petitioner and Respondent lived in Mexico with their two minor
children. Respondent describes their living situation as fraught with conflict,
anger, and violence. In January 2019, Respondent took the parties’ two minor
children and moved to Michigan. After locating the children in Michigan,
Petitioner filed an initial complaint in this Court on July 12, 2019. On
October 29, 2019, the Court dismissed the case without prejudice for failure to
serve Respondent. On October 30, 2019, Petitioner filed a second complaint for
the immediate return of the two children to Mexico pursuant to the Hague
Convention and its implementing statutes.
Respondent did not contest any element of the Petitioner’s prima
facie case. Petitioner met his burden. Respondent raised three
affirmative defenses under the Hague Convention: there is a grave risk of harm
to the children if they are ordered to return to Mexico, the children have
acclimated to living in Michigan, and they object to being returned to Mexico.
The Court held that Respondent had not met her evidentiary burden with respect
to her first and third defenses. Respondent’s second defense failed as a matter
of law.
Article 13(b) of the Hague Convention provides that a court may
decline to order the return of a child if there is a “grave risk that [their]
return would expose the child to physical or psychological harm or otherwise
place the child in an intolerable situation.” 42 U.S.C. § 11603(e)(2)(A) provides
that this defense must be shown by clear and convincing evidence.
Respondent made the following allegations related to abuse:• The
children have witnessed the Petitioner act violently toward their stepbrother. • Petitioner
forcibly shaved Respondent’s son’s head, physically abused him, and forced him
out of the marital home.• Petitioner refused to feed the two minor children
when Respondent was traveling for business. • Petitioner violently and
aggressively brushed their oldest daughter’s mouth, using soap as toothpaste,
as he forcibly undertook this act with her toothbrush. • The petitioner
physically and sexually abused Respondent. She alleges there is a restraining
order issued in Mexico preventing the Petitioner from approaching or being in
the presence of the Respondent or their daughters.
In Respondent’s initial filings, she also included psychological
reports of the two children from October 14, 2019. The reports, prepared by a
Mexican provider following video teleconferencing appointments with the
children, concluded that they each suffered from “posttraumatic stress
disorder, depression, anxiety, and general fear, caused by living in an
environment with the paternal figure that was as psychologically violent as it
was physically.”
The Court found Respondent's
allegations of the Petitioner’s violence towards her credible and concerning.
Testimony regarding the alleged violence towards Respondent’s son revealed that
Petitioner did not forcibly shave his head, but instead took Respondent’s son
to a barber to have his head shaved in connection with requirements for
participation on a sports team. However, testimony showed that Petitioner
physically assaulted Respondent’s son, forced him to stay in a shower against
his will, and banished him from the parties’ home. Respondent conceded,
however, “the minor children have not been physically assaulted”, nor have the
daughters directly witnessed the physical abuse of their brother or mother.
Testimony from the parties’ oldest daughter revealed that on one occasion, Petitioner
poked her tongue with a toothbrush. The Court heard no evidence relating to
food deprivation. These factual conclusions were confirmed by the Guardian Ad
Litem’s report. Respondent presented no evidence beyond the initial mental
health reports of any psychological harm to the children. Respondent did not
call as a witness the psychologists who performed the evaluation; nor did she
call any other mental health expert.
The Court observed that in Friedrich v. Friedrich, the
Sixth Circuit noted that a grave risk of harm could exist in only two
situations: First,...when return of the child puts the child in imminent danger
prior to the resolution of the custody dispute—e.g., returning the child
to a zone of war, famine, or disease. Second, . . . in cases of serious abuse
or neglect, or extraordinary emotional dependence, when the court in the
country of habitual residence, for whatever reason, maybe incapable or
unwilling to give the child adequate protection.
78 F.3d 1060, 1069 (6th Cir. 1996).
The first Friedrich situation did not apply. The children’s
residence in Mexico was “in a lovely, family-friendly neighborhood.” The
children “attend school, play and do activities.” “Their neighborhood was
nowhere near the ‘warzone’ or ‘place of famine’ the Friedrich court
contemplates.” Respondent did not contest this characterization.
Respondent did not provide evidence sufficient to satisfy the
second Friedrich situation. In Simcox v. Simcox, the Sixth
Circuit analyzed when abuse could rise to the level of a grave risk of harm. 511 F.3d 594 (6th Cir. 2007). The court
emphasized that grave risk of harm analysis focuses on “the time period between
repatriation and the determination of custody by the courts in the child’s
homeland.” The court separated abuse cases into three categories: First, there
are cases in which the abuse is relatively minor. In such cases, it is unlikely
that the risk of harm caused by return of the child will rise to the level of a
‘grave risk’ or otherwise place the child in an ‘intolerable situation’...In
these cases, undertakings designed to protect the child are largely irrelevant;
since the Article 13b threshold has not been met, the court has no discretion
to refuse to order return, with or without undertakings. Second, at the other
end of the spectrum, there are cases in which the risk of harm is clearly
grave, such as whether there is credible evidence of sexual abuse, other
similarly grave physical or psychological abuse, death threats, or serious
neglect. . . . In these cases, undertakings will likely be insufficient to
ameliorate the risk of harm, given the difficulty of enforcement and the
likelihood that a serially abusive petitioner will not be deterred by a foreign
court’s orders...Third, there are those cases that fall somewhere in the
middle, where abuse is substantially more than minor but is less obviously
intolerable. Whether, in these cases, the return of the child would subject it
to a ‘grave risk’ of harm or otherwise place it in an ‘intolerable situation’
is a fact-intensive inquiry that depends on careful consideration of several
factors, including the nature and frequency of the abuse, the likelihood of its
recurrence, and whether there are any enforceable undertakings that would
sufficiently ameliorate the risk of harm to the child caused by its return.
Even in this middle category, undertakings should be adopted only where the
court satisfies itself that the parties are likely to be particularly
appropriate. Id. at 607-08.
The Court noted that Simcox court found the facts, in that
case, to fall in the third, middle category. There, the father beat the
children physically and abused the children’s mother in their presence. A
psychologist found that the children suffered from Post-Traumatic Stress Disorder. The court
emphasized that the Hague Convention “was never intended to be used as a
vehicle to return children to abusive situations. ..[T]he Convention’s mandate
of return ‘gives way before the primary interest of any person in not being
exposed to physical or psychological danger.” Ultimately, the court
found that “we cannot say, however, that the risk here is so grave that
undertakings must be dismissed out-of-hand.” It remanded the case to the
district court to determine what conditions could mitigate the grave risk of
harm.
The Court found the abuse,
in this case, to fall into Simcox’ first, “minor” category. The
evidence, although serious, presented significantly less risk of harm to the
children than did the evidence in Simcox. There, the children
experienced direct physical abuse and witnessed the abuse of their mother. The
court called the application of the grave risk defense to those facts “a close
question.” Its determination relied on the serious nature of the abuse, its
“extreme frequency,” the reasonable likelihood it would continue, and the
likely exacerbation of the children’s PTSD upon return. Id. at 608-09. Here, Petitioner had not physically abused his children, nor had
the children directly witnessed abuse of their mother or brother. Moreover,
testimony portrayed the abuse as discrete incidents over a period of years.
While Petitioner’s history of angry outbursts and violence towards Respondent
and his stepson was concerning, it was not enough to show a grave risk of harm
to the parties’ minor children. See Whallon v. Lynn, 230 F.3d 450, 460 (1st Cir. 2000) (physical
abuse of spouse, when not also directed at child, insufficient to trigger grave
risk exception in absence of allegations of physical or psychological abuse
toward child); Aly v. Aden, No. 12–1960, 2013 WL 593420, at *17–18 (D. Minn. Feb. 14, 2013) (four
minor instances of domestic violence against spouse, only one of which was
witnessed by child, insufficient to establish grave risk of harm); Fernandez v. Bailey, 2010 WL 3522134, at *2–3 (E.D. Mo. Sept. 1, 2010)
(emotional, psychological, and physical abuse of spouse insufficient to establish
grave risk when petitioner was not violent, abusive, or neglectful to the
children).
Moreover, beyond a passing of the Petitioner’s ability to
“purchase” courts in Mexico, Respondent had not argued that Mexican courts are
“incapable or unwilling to give the child[ren] adequate protection.”
Respondent’s second affirmative defense failed as a matter of law.
Article 12 of the Hague Convention provides that if a proceeding is commenced
more than one year after the removal of a child and the child has become
settled in their new environment, a court need not order the child’s return. These
proceedings commenced less than one year after removal, and the defense did not
apply.
Article 13
of the Hague Convention provides that a court may consider a child’s objection
to returning if the child “has attained an age and degree of maturity at which
it is appropriate to take account of [their] views.” 42 U.S.C. § 11603(e)(2)(B) provides that
Respondent must show the children’s objection by a preponderance of the
evidence. A child’s objection is different from a child’s wishes, as would be
considered in a custody hearing. Neumann v. Neumann, 310 F.Supp.3d 823, 835 (E.D. Mich. 2018). An
objection may require a child to set forth particularized reasons why they
object as opposed to a mere general opposition to return. Yang v. Tsui, 499 F.3d 259, 279 (3d Cir. 2007). This Court had previously
considered the objections of children as young as eight. See Raijmakers-Eghaghe v. Haro, 131 F. Supp. 2d 953, 957-58 (E.D. Mich. 2001) (finding
that Hague Convention imposes no age limit on defense and eight-year old’s
views may be considered).
The Court heard testimony in
chambers, and on the record, from the parties’ older daughter, after which the
Court determined that she had the level of maturity required to understand the
proceedings and to provide meaningful testimony. She explained that she liked
attending school in Michigan more than in Mexico because her classmates in
Mexico would make fun of her for wearing glasses. She said that her father was
often angry, and she would prefer to live with her mother. When asked where she
would prefer to live, she said she would prefer to live in Michigan because she
feels she will be “more successful” here than in Mexico. The child’s testimony
did not rise to the level of objection required. Her opinions about her school,
friends, parents, and future success all demonstrated a preference of a
ten-year-old child for staying one place over another; however, a comparative
preference of this nature lacks the particularity required to satisfy the
narrow affirmative defense under Article 13. The Court found the child’s testimony
to be more akin to a child’s wishes that could play a role in a custody
hearing, than the particularized objections required under the Hague
Convention, Yang v. Tsui, 499 F.3d at 279. See, e.g., Haimdas v. Haimdas, 720 F. Supp. 2d 183, 206 (E.D.N.Y. 2010) (finding
an articulation of a comparative preference for climate, education, and
recreational activities insufficient to invoke affirmative defense).
Because Petitioner had met his prima facie case and Respondent had
not shown an affirmative defense, the Court ordered the children’s return to
Mexico.
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