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Saturday, December 4, 2021

Velozny v Velozny, 2021 WL 5567265 (2d Cir.,2021) [Israel][Federal & State Judicial Remedies][Summary judgment][Grave Risk of harm] [Petition granted]

In Velozny v Velozny, 2021 WL 5567265 (2d Cir.,2021) the Second Circuit affirmed a judgment of the United States District Court for the Southern District of New York (Daniels, J.), granting Petitioner-Appellee Nir Velozny’s motion for summary judgment and petition to return the children R.V., N.V., and E.V. to Israel .

On appeal Ms. Velozny challenged the district court’s order and judgment to the extent that it declined to apply the grave risk of harm exception, as well as the district court’s discretionary decision declining to apply the mature child exception. Ms. Velozny also challenged the district court’s use of expedited proceedings and its decision limiting Ms. Velozny’s ability to submit certain evidence.

The Second Circuit held that the district court did not err in holding expedited proceedings or in declining to hear testimony from certain witnesses or interview the elder two children in camera. Its decision to hear two days of live testimony to supplement the evidence filed along with the summary judgment papers was in keeping with the Hague Convention’s explicit emphasis on expeditious judicial resolution. 

The Court held that the district court did not err when declined to interview R.V. and N.V. in camera, because both parties filed affidavits from their experts based on extensive interviews with both children, among other evidence. As the district court explained, “I am hesitant to put the children through [in camera interviews] after having gone through hours and hours with the psychologist. ... I don’t see that there is any significant additional evidence that would be determinative of this case given the complete examination done by the experts and their full reports on these issues.” In addition, the district court properly declined to hear additional live testimony as duplicative or immaterial to the disposition of the case.

The Second Circuit held that district court also did not err in its analysis of the grave risk of harm defense. This exception must be applied narrowly to avoid “frustrat[ing] a paramount purpose of [the Hague Convention]—namely, to ‘preserve the status quo and to deter parents from crossing international boundaries in search of a more sympathetic court.’ ” Blondin II, 189 F.3d at 246 (quoting Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir. 1993)). The district court properly found that the grave risk exception did not apply based on the undisputed facts. As the district court pointed out, “as late as August 26, 2019, approximately one month before her removal of the children, [Ms. Velozny] was willing to let her children travel unaccompanied to Israel twice a year and be alone with their father.” In addition, the district court properly found that the undisputed facts with respect to the alleged risks from exposure to spousal abuse, physical or emotional abuse of the children, and petitioner’s drug use did not warrant application of the grave risk exception. The district court also considered potential ameliorative measures, noting that (1) Ms. Velozny “has not established that an Israeli court could not provide adequate protection for the children during any divorce or custody proceedings,” and (2) “the effect of this decision is only to order the return of the children to Israel,”. The district court expressly noted the undisputed fact that “[t]he children and [Ms. Velozny] are not required ... to live with [Mr. Velozny] again, and the parties are free to devise their own living and custody arrangements or seek the intervention of an Israeli court.” Thus, the district court did not err in finding that the grave risk of harm exception did not apply.

The Court also found that district court did not err in declining to apply the mature child exception. the district court noted that the parties agreed that E.V., the youngest, was too young to have her views considered. Then, after discussing R.V.’s and N.V.’s opinions on returning to Israel, the district court found that R.V. only preferred to stay in the United States (but did not object to returning to Israel) and N.V.’s statements may have constituted an objection to returning to Israel. The district court then stated that, even assuming both R.V. and N.V. were mature enough to have their views considered and that N.V.’s view constituted an objection within the meaning of Article 13, it would still decline to apply the mature child exception in order to keep all three children together. Such a decision fell well within the district court’s discretion in Hague Convention proceedings. See Blondin IV, 238 F.3d at 166.

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