In Poix v Santana, 2022 WL 9847347 ( S.D. New York, 2022) the Court granted the Petition and ordered the children M.G.E. and A.F.E., returned to the Dominican Republic.
Petitioner, who was born in Haiti in 1968, was a citizen of the Dominican Republic and Haiti, while Respondent was born in the Dominican Republic in 1986. The two met in 2013 and were married in the Dominican Republic in April 2014. Following their marriage, they resided in Santo Domingo in the Dominican Republic. They had two children. M.G.E was born in Manhattan in January 2016, and A.F.E. was born in Manhattan in October 2017. Soon after each child was born in the United States, thereby securing U.S. citizenship, the Respondent and the child returned to the Dominican Republic, In April 2020, the parties separated, and the Respondent and the children moved out of the family’s joint residence. The parties subsequently were divorced by mutual consent in December 2020. At some point around the end of July 2021, Respondent moved with the children from Santo Domingo to Santiago, the city in the Dominican Republic where her family resided. Then, on August 22, 2021, the Respondent and the children traveled from the Dominican Republic to the United States. They currently resided in New York City, where the Respondent worked as a teacher. Petitioner realized that Respondent and the children had left the Dominican Republic for the United States at some point in September 2021.
The Court found that the evidence at trial established that, aside from their births, M.G.E. and A.F.E. lived in the Dominican Republic until the Respondent removed them to the United States in August 2021. The testimony further revealed that, while married, Petitioner and Respondent both intended the Dominican Republic to be the children’s habitual residence. Dominican family law grants “[p]arental authority ... equally to the father and mother.” Dominican Republic Law 136-03, art. 67 That parental authority ends when a child reaches adulthood, marries, or dies, or when it is terminated by a court. The children are not adults, they have not married, and they have not died, nor has Petitioner’s parental authority been terminated by a court. Respondent was granted temporary guardianship of the children in the decree of divorce that dissolved their marriage. But an award of temporary guardianship to one parent does not constitute an order terminating the other’s parental authority. Thus, Petitioner retained parental authority over the children after his divorce from Respondent, including at the point when she removed them from the Dominican Republic to the United States. Under Dominican law, Petitioner’s parental authority grants him a ne exeat right to prevent the children from being taken from the country without his consent: “If one of the parents intends to leave the country with one of their sons or daughters, they may not do so without the written consent of the other [parent].” Dominican Republic Law 136-03, art. 204; Respondent herself acknowledged to Petitioner when renewing the children’s passports that she would need his consent to take them out of the country. Because she removed the children from the Dominican Republic without Petitioner’s written consent, Respondent violated Petitioner’s ne exeat right under Dominican family law. And since a ne exeat right is a right of custody under the Convention, see Abbott, 560 U.S. at 10, the removal was “in breach of rights of custody” under Article 3 of the Convention, as Respondent conceded, The evidence submitted at trial easily satisfied Petitioner’s burden of showing that his involvement with the children prior to their removal constituted the exercise of his rights of custody. After the separation, he saw them “[a]t least once a week on a regular basis.” Beyond his in-person interactions with the children, Petitioner further exercised his rights of custody by helping with the children’s expenses and participating in childcare—as Respondent herself acknowledged at trial. With all three elements under the Convention established, see Gitter, 396 F.3d at 130-31, the Court concluded that the children were wrongfully removed from the Dominican Republic for purposes of the Convention.
The Respondent argued that Petitioner ceased to exercise his rights of custody during the months immediately before the children’s removal from the Dominican Republic. During that period, she argued, he did not visit them in person, he refused to communicate with them over telephone or video chat, and he refused to visit them in person by traveling from Santo Domingo, where he lived, to Santiago, where Respondent was living with the children. The parties do not dispute those facts. Petitioner did not see the children in person from late June or early July 2021 until their removal (and, indeed, has not seen them since). During that period, Petitioner acknowledged, he refused to travel to Santiago even though Respondent had said she would let him see the children there. And when Respondent told him that she was willing to permit him to communicate with the children only via telephone or video chat, he responded not by using those methods of communication but rather by telling her that her offer was “unacceptable.” The court noted that in some circumstances, a parent’s cessation of communications or in-person visits with a child might suggest that he stopped exercising his rights of custody. But while Petitioner did not actually communicate with the children or see them in person after around late June 2021, the evidence at trial showed that he attempted to maintain contact with them in July and August 2021 before they left the Dominican Republic for the United States. The evidence established that Petitioner did attempt to maintain regular contact with the children between June 2021 and their departure from the Dominican Republic in August 2021: he repeatedly asked Respondent to allow him to visit them in person, and the Court concludes that he would have continued to maintain contact with them had those requests been granted. Thus, although he did not visit them in person after June 2021, in these circumstances that fact did not reflect a failure to exercise rights of custody at the time of the removal. Accordingly, Petitioner established at trial by a preponderance of the evidence that he was exercising rights of custody at the time the children were removed from the Dominican Republic. Consequently, their removal was wrongful under Article 3 of the Convention. Furthermore, because Respondent had not produced sufficient evidence to show that Petitioner “was not actually exercising the custody rights at the time of removal,” the exception established by Article 13(a) of the Convention cannot apply.
The Court rejected the Respondent's grave risk defense under Article 13(b) of the Convention, which permits a court not to return a 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). While Respondent did present some evidence in support of her Article 13(b) defense, that evidence was insufficient to show it highly probable or reasonably certain that returning the children would expose them to a grave risk of physical or psychological harm. Consequently, Respondent did not show that Article 13(b) permits this Court to decline to order the return of the children to the Dominican Republic.
Respondent’s counsel argued at trial that returning the children to the Dominican Republic would risk exposing them to physical violence from Petitioner. Tr. at 239:20-23. Without a doubt, violence directed at a child could qualify as severe harm under Article 13(b). See Ermini v. Vittori, 758 F.3d 153, 164-65 (2d Cir. 2014) (finding a “sustained pattern of physical abuse” on the part of a petitioner sufficient for an Article 13(b) defense). The primary event Respondent cited as evidence of that risk is the incident of spousal violence, that she alleged took place while she was pregnant with A.F.E. As described, the incident was disturbing and abhorrent. But even accepting Respondent’s characterization as accurate, it would provide only weak evidence in support of an Article 13(b) defense, however poorly the incident might otherwise reflect upon Petitioner. For even if it demonstrates that Respondent might have faced a grave risk of further violence were she to have remained in a relationship with Petitioner, “[t]he 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.” Souratgar, 720 F.3d at 104 (emphasis added). That is, spousal violence bears on Respondent’s Article 13(b) defense only to the extent that it identifies a grave risk of violence that the children would face if returned. Certainly, spousal violence can sometimes support a finding that such a risk to the children exists if it “show[s] a sustained pattern of physical abuse and/or a propensity for violent abuse.” But a single incident of violence does not suffice to demonstrate a sustained pattern of or propensity for abuse. “[L]imited incidents aimed at persons other than the child, even if witnessed by the child, have not been found to constitute a grave risk.” Indeed, the Second Circuit has affirmed an order for a child’s return despite evidence of repeated spousal violence; because given “the lack of any indicia of ill-will on the part of [the petitioner] toward [the child], and contrary credited evidence of a loving father-son relationship,” the spousal violence was insufficient to establish a “clear and convincing showing in the record that the boy faces a grave risk of harm from his father,” id. at 106. And if repeated spousal violence does not suffice for an Article 13(b) defense, then the single incident Respondent alleged cannot suffice either, especially when combined with the absence of any evidence that Petitioner ever abused the children and the ample evidence of his loving relationship with them.
To support her Article 13(b) defense, Respondent also pointed to the social gathering in Puerto Plata in 2017 that she, Petitioner, and M.G.E. attended. At that gathering, some friends of Petitioner’s were smoking marijuana, causing Respondent to feel unsafe and ultimately to leave with M.G.E. Subsequently, she was forced to make her way home by herself via taxi and public transportation, despite having very little cash on her. Petitioner’s conduct on this occasion, while perhaps not exemplary, did not amount to clear and convincing evidence that returning the children would expose them to a grave risk of physical or psychological harm. An Article 13(b) defense may succeed based on the risk that a petitioner himself will cause harm “in cases of serious abuse or neglect.” Souratgar, 720 F.3d at 103
The Court rejected the argument that Petitioner’s refusal to contact the children via telephone or video chat after they were removed from the Dominican Republic justifies a finding that returning them would create a grave risk because his failure to contact the children demonstrates his lack of empathy for them and disregard for their wellbeing.
The remaining evidence Respondent advanced to sustain her Article 13(b) defense largely concerned Petitioner’s treatment of her during their marriage. Respondent testified that Petitioner misinformed her about the number of children he had and about the nature of his relationships with some of them; he began drinking during the marriage; he would not let her visit her family for the holidays; he misled her about his faith, he was unfaithful to her after she gave birth to M.G.E.; he verbally abused her, he used his control of the family’s finances to control her; and he argued with her in public around the couple’s friends. As a result, both Respondent and her witnesses testified that she was depressed and unhappy in the marriage. Article 13(b) does not establish an exception to return based on the relationship between the parents; rather, it permits children not to be returned only when there is a grave risk of harm to the children. Thus, the reasons for the breakdown of the parties’ marriage are not relevant to the Article 13(b) analysis unless they establish a very high likelihood that the children will suffer severe harm if they are returned. And while this evidence may establish Petitioner’s unsuitability to be married to Respondent, Respondent advanced no argument for why it showed that the children will likely suffer harm if they are returned to the Dominican Republic.
Respondent did not establish by clear and convincing evidence, the grave risk that returning the children would expose them to physical or psychological harm or otherwise place them in an intolerable situation. See Hague Convention art. 13(b).
