Velozny v Velozny, 2021 WL 3115870 (S.D. New York, 2021) [Israel] [Consent] [Grave Risk of Harm] [Mature Child Defense][Petition granted]

 

In Velozny v Velozny, 2021 WL 3115870 (S.D. New York, 2021) Petitioner Nir Velozny, an Israeli citizen, petitioned the United States District Court for the return of his children, R.V., N.V., and E.V., ages 15, 12, and 4, respectively, to Israel. Petitioner moved for summary judgment, arguing that the children were wrongfully removed and were being wrongfully retained in the United States by their mother, Respondent Tal Velozny, who currently resided in New York. Hon. George B. Daniels granted Petitioner’s motion for summary judgment and his petition for the repatriation of the children to Israel.

 

     Petitioner, Nir Velozny, was an Israeli citizen who currently resided in Israel. Respondent, Tal Velozny, a U.S. citizen, was Petitioner’s wife and currently lived in New York. The couple first met in 2001, were married in 2002 (in both the United States and Israel), and moved to Israel in 2005. The couple has three minor children: R.V., N.V., and E.V, all of whom were born in Israel. Petitioner and Respondent shared a home in Tel Aviv with their children until approximately July 2019.  Around that time, Petitioner moved out of the family home and informed Respondent that he wanted a divorce. In August 2019, Petitioner filed a petition with the State of Israel Rabbinical Courts to initiate a divorce proceeding. An initial divorce proceeding before Israel’s Rabbinical Court was scheduled for October 2, 2019. The parties, through counsel, began negotiating a divorce and custody agreement and counsel held two meetings in August. After one meeting, Petitioner’s Israeli counsel instructed Respondent’s Israeli counsel that the children were not to leave Israel without Petitioner’s consent. The parties never executed the divorce and custody agreement. On September 28, 2019, just days before they were to appear before the Rabbinical Court, Respondent booked a round-trip ticket for her and the children from Tel Aviv to the United States. Respondent left in secret, never informing Petitioner that she was moving the children to New York. Nor did she tell the children that they were going to stay in the United States. Petitioner discovered that Respondent and the children had left Israel when he went to the family home on September 28^th to check in with the children before the start of Rosh Hashana and found it dark. Petitioner went to Respondent’s parent’s home where he was told by the doorman that Petitioner had left for the airport. Petitioner next went to the police station, where the police confirmed that Respondent and the children had left Israel. Respondent and the children have remained in New York (and not returned to Israel) since September 2019.

 

The district court pointed out that neither the Hague Convention nor ICARA requires an evidentiary hearing or a full trial on the merits. March v. Levine, 136 F. Supp. 2d 831, 833-34 (M.D. Tenn. 2001); see also March v. Levine, 249 F.3d 462, 474 (6th Cir. 2001); Van De Sande v. Van De Sande, 431 F.3d 567, 572 (7th Cir. 2005). The Court heard oral argument on the Petitioner’s summary judgment motion on May 6, 2021 and then held a two-day evidentiary hearing on May 25 and June 1, 2021 where both parents testified under oath.

 

          The undisputed facts demonstrated that Petitioner established each element of a prima facie case under the Hague Convention. The United States and Israel are both signatories to the Convention. The three children are all under the age of 16, were each born in Israel, went to school exclusively in Israel, and carried Israeli and American passports. The children were habitual residents of Israel. There was no dispute that Petitioner had custody rights under Israeli law and was exercising those rights at the time the children were removed from Israel. Petitioner lived with Respondent and the children until approximately July 2019. After moving out of their shared home, Petitioner continued to make attempts to visit and contact the children until they were removed from Israel. Respondent did not dispute Petitioner’s custody rights or that those rights were being exercised. Petitioner  satisfied his burden under the Hague Convention and ICARA and established that the surreptitious removal of the children by Respondent to New York was wrongful.

 

The district court found that respondent failed to show that there were any disputed material facts that supported her affirmative defenses. “[O]nce a [petitioner] establishes that removal was wrongful, the child must be returned unless the defendant can establish one of four defenses.” Blondin v. Dubois, 189 F.3d 240, 245 (2d Cir. 1999) (“Blondin II”)

 

Article 13(a) of the Hague Convention provides that a court “is not bound to order the return of the child if the person ... [who] opposes its return establishes that – the person ... having the care of the person of the child ... had consented to or subsequently acquiesced in the removal or retention.” Hague Convention, art. 13(a). The consent and acquiescence defenses are distinct from one another, and both exceptions are narrow. Baxter v. Baxter, 423 F.3d 363, 370 (3d Cir. 2005); Blondin II, 189 F.3d at 246. In order to establish this affirmative defense, the respondent must prove by a preponderance of the evidence that petitioner either previously consented or subsequently acquiesced to the removal of the children. 22 U.S.C. § 9003 (e)(2)(B).. While “consent needn’t be formal,” Berenguela-Alvarado v. Castanos, 950 F.3d 1352, 1359 (11th Cir. 2020), it is “important to consider what the petitioner actually contemplated and agreed to in allowing the child to travel outside its home country.” Baxter, 423 F. 3d at 371. “The key to the consent inquiry is the petitioner’s subjective intent, including the nature and scope of the alleged consent.” In re Kim, 404 F.Supp.2d 495, 516 (S.D.N.Y. 2005).

 

 

Respondent argued that Petitioner consented to the children’s relocation to New York during the parties’ divorce negotiations, and that the parties disagreed only on “how much money Petitioner would extract from Respondent’s family to pay his extraordinary debts.” This argument was belied by the undisputed evidence. First, it is undisputed that on August 27, 2019, Petitioner’s Israeli counsel informed Ms. Bash that the children were not to leave Israel without the Petitioner’s consent. This undisputed fact, admitted to by Respondent, undermined the statements in Ms. Bash’s declaration and the argument that Petitioner consented to the removal of the children to the United States. Second, it was undisputed that the agreements laying out the terms of the parties’ divorce and their child custody arrangement were in draft form and unexecuted. Also unavailing was Respondent’s contention that Petitioner’s communications in the years prior to her removal of the children to New York evidence consent.

 

A showing of acquiescence requires a higher degree of formality; either a formal statement by petitioner or a consistent attitude of acquiescence over a significant period of time.” Laguna, 2008 WL 1986253, at *7. An acquiescence defense “requires either: an act or statement with the requisite formality, such as testimony in a judicial proceeding; a convincing written renunciation of rights; or a consistent attitude of acquiescence over a significant period of time.” Friedrich, 78 F.3d at 1070. Where, as here, “a petition for the return of the children is filed prior to the end of the statutory period, courts will find acquiescence in only a limited set of scenarios.” Pesin v. Osorio Rodriguez, 77 F. Supp. 2d 1277, 1290 (S.D. Fla. 1999). Accordingly, “[e]ach of the words and actions of a parent during the separation are not to be scrutinized for a possible waiver of custody rights.” Friedrich, 78 F.3d at 1070. Respondent’s assertion that Petitioner subsequently acquiesced to the children’s removal, based on a text message from Petitioner telling her to “stay there” the day after she arrived in New York, did not meet the level of formality required for this defense. Petitioner has actively pursued his rights under the Hague Convention by seeking counsel and filing a timely petition after learning from the Israeli police that Respondent and the children had left Israel. Baxter, 423 F.3d at 372; In re Interest of Zarate, No. 96 C 50394, 1996 WL 734613, at *3 (N.D. Ill. Dec. 23, 1996) Thus, the acquiescence defense was inapplicable.

 

 

Article 13(b) of the Hague Convention provides that a court “is not bound to order the return of the child” if “there 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.” Hague Convention, art. 13(b). A respondent must establish this defense by “clear and convincing evidence.” In re Lozano, 809 F. Supp. 2d 197, 220 (S.D.N.Y. 2011). “[A] grave risk of harm from repatriation arises in two situations: ‘(1) where returning the child means sending him to a zone of war, famine, or disease; or (2) in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.’ ” Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir. 2013).“The 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 grave risk involves not only the magnitude of the potential harm but also the probability that the harm will materialize.” The Second Circuit has described the grave risk determination as falling on a spectrum: “at one end of the spectrum are those situations where repatriation might cause inconvenience or hardship, eliminate certain educational or economic opportunities, or not comport with the child’s preferences; at the other end of the spectrum are those situations in which the child faces a real risk of being hurt, physically or psychologically, as a result of repatriation. The former do not constitute a grave risk of harm under Article 13(b); the latter do.” Blondin IV, 238 F.3d at 162. As with the entirety of the Hauge Convention analysis, the focus of the grave risk inquiry is “not the relationship between the two parents or the desirability of one party having custody.” Souratgar v. Fair, 2012 WL 6700214 at *7 (S.D.N.Y. 2012). Rather the focus is on whether the return of the children to the country they were removed from will create a true risk of harm to the children.

 

The grave risk defense has been found to be satisfied where respondents show “a sustained pattern of physical abuse and/or a propensity for violent abuse that presented an intolerably grave risk to the child.” Souratgar, 720 F.3d at 104. Additionally, spousal abuse can establish a grave risk of harm “when it occurs in the presence of the child.” Ermini v. Vittori, 758 F.3d 153, 164 (2d Cir. 2014); see also Souratgar, 720 F. 3d at 103-104. Importantly, “[s]poradic or isolated incidents of physical discipline directed at the child, or some limited incidents aimed at persons other than the child, even if witnessed by the child, have not been found to constitute a grave risk.” Souratgar, 720 F. 3d at 104. “The Article 13(b) inquiry is not whether repatriation would place the respondent parent’s safety at grave risk, but whether so doing would subject the child to a grave risk of physical or psychological harm.”

 

It was undisputed that in July 2019 Petitioner and Respondent had an argument while in Petitioner’s car. After parking the car in front of the family home he forcibly removed Respondent from the car by grabbing her arm, resulting in a bruise on Respondent’s arm. Petitioner also admitted that, three- or four-times during arguments, when Respondent would “come to [his] face” he would “push her back.” (Respondent’s testimony confirmed these events, but noticeably absent wass any evidence that these events took place in front of the children. There was no evidence in the record to support a finding that Petitioner’s conduct towards Respondent was observed by the children or puts the children at a grave risk of harm.

 

Respondent never claimed that Petitioner ever physically abused any of the children. Respondent testified that Petitioner would “belittle” N.V. It is alleged, that Petitioner would shout at N.V. and tell him that he needed to “succeed,” “do better,” “leave [his] phone alone,” not be “stupid,” and not be “stupid like [Petitioner]” because he didn’t finish high school. These allegations, while perhaps not the most pedagogically advanced, do not amount to a grave risk of physical or emotional abuse from Petitioner. The allegations here regarding treatment of the children can be characterized as disciplinary in nature. Souratgar, 720 F.3d at 105.

 

Respondent alleged that Petitioner abused drugs, left drugs lying around the home, and was “totally consumed” by drugs to the point that he was “unable to function as a parent.” Petitioner admitted to using drugs “recreationally” about once every month or two when he would go to an event or party. “Drug use, under certain circumstances, ... may qualify as grave-risk conduct.” Mlynarski v. Pawezka, 931 F. Supp. 2d 277, 284 (D. Mass. 2013), aff’d, 2013 WL 7899192 (1st Cir. May 8, 2013). Courts use a two-step approach to determine whether allegations of drug use qualify as a grave risk. “[T]he court must first determine whether the alleged ... drug use in fact occurred. Beyond that, the court must consider as part of the grave risk analysis how such conduct, if confirmed, would affect the child were he to be returned to his habitual residence.”  Respondent admitted that she never witnessed Petitioner use drugs in front of the children. It was clear that the drug use at issue here did not rise to the level that put the children at a grave risk of harm.            Respondent failed to meet her burden to establish by clear and convincing evidence that the children’s return to Israel would expose them to a “grave risk of physical or psychological harm or otherwise place [them] in an intolerable situation.” Convention, Art. 13(b).

 

Respondent’s third and final defense relied on an unnumbered provision in Article 13 of the Hague Convention, which provides that a court may “refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.” Hague Convention, art. 13. There is no “minimum age at which a child is old enough and mature enough to [object and] trigger this provision.” Blondin IV, 238 F.3d at 166. However, the exception must be “construed narrowly so [its] application does not ‘undermine the express purposes of the Convention.’ ” Yang v. Tsui, 499 F.3d 259, 278 (3d Cir. 2007)). Notably, proving that the defense applies is not dispositive; courts ultimately retain discretion to order repatriation despite that showing. Blondin II, 189 F.3d at 246 n.4; see also Haimdas v. Haimdas, 720 F. Supp. 2d 183, 204 (E.D.N.Y. 2010). Generally, “[a] child’s expression of a preference to remain in the United States rather than a particularized objection to repatriation may provide a basis for a court to find the mature child exception inapplicable.” Haimdas, 720 F. Supp at 206; see also Yang, 499 F.3d at 280.

 

Having reviewed expert report submissions reflecting a combined 5 hours and 50 minutes of clinical interviews with R.V. and N.V, the Court concluded that Respondent’s child objection defense was unavailing and declined to apply the exception. Neither one of the expert reports suggested that N.V. held an unequivocal, bona fide objection to repatriation. In his interview with Dr. Favaro, N.V., who is twelve years old, stated that returning to Israel would make him “anxious and upset” because “[h]e likes the school here [in New York], ... has made good friends [in New York], and loves living with his maternal grandparents and would miss his family life if he were forced to return [to Israel].” N.V.’s wishes did not rise to the level of an unequivocal objection to return to Israel. While N.V. expressed that he would be “anxious and upset” to return, his stated reasons for feeling that way revolve around his enjoyment of his new school and new friends, and that he likes living with his maternal grandparents. These reasons did not indicate a substantial basis for his objection to a return to Israel, so much as it reflected his enjoyment of his current lifestyle in New York. The case for declining to apply the mature child exception was even stronger after examining R.V.’s alleged objections. According to Petitioner’s expert, R.V., who recently turned fifteen, “reported that life in Israel ‘was not bad.’ ” Respondent’s expert, meanwhile, reported that R.V. “expressed a preference to stay in the United States and that the quality of his life would not be satisfying if he returned to Israel.” Again, there was no unequivocal objection here—neither a mere preference nor expected quality of life are relevant considerations under the Hague Convention. R.V. “at no point ... express[ed] a clear objection to his return to Israel.” Respondent did not meet her burden of showing that R.V. unequivocally objects to repatriation to Israel. Accordingly, this Court declined to apply the discretionary mature child exception.