Braude v. Zierler, 2023 WL 3012269 (2d Cir.,2023) - [Canada][Petiiton denied][Grave risk of Harm]

    In Braude v. Zierler, 2023 WL 3012269 (2d Cir.,2023) Gadi Braude, appealed the district court’s denial of his petition pursuant to the Hague Convention to return his two children – who resided with their mother, Dorona Mia Zierler, in the United States, to Canada. He also moved to expand the record on appeal. The Court affirmed. It observed that  “[W]hen a child has been wrongfully removed or retained from his country of habitual residence, Article 12 of the Hague Convention generally requires the deciding authority (here, a district court) to order the return of the child.” Golan v. Saada, 142 S. Ct. 1880, 1891 (2022). However, “[u]nder Article 13(b) of the Convention, ... a court is not bound to order the return of the child if the court finds that the party opposing return has established that return would expose the child to a grave risk of physical or psychological harm.” By providing that a court is not bound to order return upon making a grave-risk finding, Article 13(b) lifts the Convention’s return requirement, leaving a court with the discretion to grant or deny return. Moreover, a district court’s “discretion to determine whether to return a child where doing so would pose a grave risk to the child includes the discretion whether to consider ameliorative measures that could ensure the child’s safe return.” Id. at 1893.

 

    Here, the district court denied Braude’s request for relief under the Hague Convention. Citing Braude’s “long and serious history of untreated mental[-]health issues,” his “concerning history of angry and manipulative behavior,” and his “arrest for access and possession of child pornography,” the district court found that “[t]he record reflects [the] existence of factors in combination that create[d] a grave risk of harm if the children were returned to Canada.” Furthermore, the district court found that Braude’s proposed ameliorative measures would not adequately “prioritize the children’s physical and psychological safety.” Braude appealed, asking the Court to exand the record on appeal and, on the basis of the new evidence, hold that the district court erred in its grave-risk and ameliorative-measures findings. His motions to expand the record to include two categories of documents was denied. Ordinarily, review is limited to the record on appeal, meaning the original papers and exhibits filed in the district court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the district clerk, see Fed. R. App. P. 10(a)(1), unless a litigant can show “extraordinary circumstances,”. Braude has not shown any such extraordinary circumstances here.

 

    First, Braude sought consideration of a Canadian child-welfare agency’s records spanning from October 2020 to August 2022 regarding Braude, Zierler, and their children (the “Agency Records”), which he allegedly requested months before the July 2022 evidentiary hearing but were not produced to him until September 2022. But the fact that the Agency Records were not available until after the district court issued its judgment is not in and of itself an extraordinary circumstance.

 

    Second, Braude sought consideration of Zierler’s family offense petition filed in New York Family Court months after the July 2022 evidentiary hearing arguing that it undermined Zierler’s prior sworn testimony regarding abuse. But the fact that post-judgment evidence, had it existed at the time of the hearing, could have been relevant, or, in this case, could have been used to impeach the credibility of an adverse witness, is not enough to justify an expansion of the record on appeal.

 

    Because Braude’s only arguments on appeal rested on the new evidence it may not consider, he abandoned all other challenges to the district court’s decision, and the Court affirmed.