In Grano v Martin, 821 Fed.Appx. 26 (2d Cir.,2020) (summary order)( not selected for publication) Respondent-appellant Katherine Patricia Martin appealed from a judgment of the district court, granting the petition filed by petitioner-appellee Sergi Hernandez Grano for the return of their son to Spain. Martin, the Child’s mother and an American citizen, had taken the Child from Spain to the United States without the consent of Grano, the Child’s father and a Spanish citizen.
On appeal, Martin argued principally that the district court erred in: (1) finding that the Child’s habitual residence was Spain, (2) concluding that the “grave risk” of harm exception did not apply; and (3) failing to require “undertakings” as a condition of the Child’s return to Spain.
The Second Circuit observed that under the Convention, “a child wrongfully removed from [his] country of ‘habitual residence’ ordinarily must be returned to that country,” as the interests of the child are usually best served when custody decisions are made in the courts of the home country. Monasky v. Taglieri, ––– U.S. ––––, 140 S. Ct. 719, 723, 206 L.Ed.2d 9 (2020). A parent can invoke the protection of the Convention only if the child is a “habitual resident” of a State signatory to the Convention and has been removed to or retained in a different State that is also a signatory of the Convention. See Gitter v. Gitter, 396 F.3d 124, 130 (2d Cir. 2005). The burden of proof is on the petitioner to show by a preponderance of the evidence that the child was the habitual resident of a State and has been wrongfully removed to or retained in a different State. Id. at 131; see also 22 U.S.C. § 9003(e)(1)(A). Under Monasky, “a child’s habitual residence depends on the totality of the circumstances specific to the case.” 140 S. Ct. at 723. “An actual agreement between the parents is not necessary to establish a [child’s] habitual residence.” Some factors for courts to consider in determining “habitual residence” include where a child has lived, the length of time there, acclimatization, and the “purposes and intentions of the parents.” Physical presence in a country is not a dispositive indicator of an infant’s habitual residence.
The Court pointed out that it reviews a “first-instance habitual-residence determination ... for clear error.” While a child’s habitual residence presents a mixed question of law and fact, “[t]he habitual-residence determination ... presents a task for factfinding courts, not appellate courts, and should be judged on appeal by a clear-error review standard deferential to the factfinding court.” Here, after carefully considering the evidence and weighing the credibility of the witnesses, the district court found that the Child’s habitual residence was Spain. There was ample support in the record for this conclusion. For example, when Martin and the Child flew to Spain on October 3, 2017, they did so on a one-way ticket, and Martin did not retain any bank accounts in the United States. Martin and Grano engaged in activities in Spain consistent with being a couple intending to raise their child in that country, including finding a school for the Child, buying a house together, and making decisions about the design and furnishing of the house. In April 2018, while Martin was on a visit to New York with the Child, she registered him with the Spanish Consulate as a Spanish citizen. Later that month, Martin returned to Spain with the Child, and in May she registered him as a resident of their town in Spain. In July 2018, Martin and Grano signed the deed to a house in Spain, and they began to live there as a family. On these and other facts in the record, and applying the deferential standard of review mandated by Monasky, it concluded that the district court did not clearly err in finding that the totality of the circumstances showed that the Child’s habitual residence was in Spain.
The Court further observed even if the removal of a child is wrongful, under the Convention the relevant exception in this case is the “grave risk” exception: return will not be required if it “would place [the child] at a ‘grave risk’ of harm or otherwise in ‘an intolerable situation.’” Monasky, 140 S. Ct. at 723; see also Convention, art. 13(b) (one exception is if “there is a grave risk that [the child’s return] would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”). The grave risk exception is an affirmative defense, and the burden is on the respondent to prove the defense by clear and convincing evidence, though the underlying facts must only be proven by a preponderance of the evidence. See 22 U.S.C. § 9003(e)(2)(A). A grave risk of harm occurs where the “petitioning parent had actually abused, threatened to abuse, or inspired fear in the children in question.” Ermini, 758 F.3d at 164 (quoting Souratgar v. Lee, 720 F.3d 96, 105 (2d Cir. 2013)). Spousal violence can also create a grave risk of harm to the child, particularly if the violence occurs in front of the child. Id. This Court has held, however, that spousal abuse is “only relevant under Article 13(b) if it seriously endangers the child.” Souratgar, 720 F.3d at 103-104. In considering the parties’ arguments with respect to the grave risk exception, it reviews the district court’s factual findings for clear error, and its application of the Convention to those findings de novo. Ermini, 758 F.3d at 160. There was support in the record for the factual findings, and it was not persuaded that the district court erred in declining to invoke the grave risk exception.
The Court noted that where a court orders the return of a child under the Convention to his country of habitual residence, it may impose an “undertaking” to ensure that the child is not harmed upon his return. The parties disputed whether a district court has jurisdiction to order undertakings when it declines to invoke the grave risk exception. The Court held that it need not resolve the issue, for even assuming the district court had jurisdiction to order undertakings, it did not abuse its discretion in declining to do so, where, as here, there was no grave risk of harm to the Child upon his return to Spain.