In Braude v Zierler,
2022 WL 3018175 (S.D. New York,2022) the District Court
denied the Petition of Gadi Braude (“the
Father”) against Dorona Mia Zierler (“the Mother”) seeking the immediate return
of their two sons to Canada.
Respondent averred that Petitioner consented to Respondent
removing the children to the United States. The Court explained that to
establish this defense, the respondent must show by a preponderance of the
evidence that the petitioner consented to the removal or retention. Velozny v.
Velozny, 550 F. Supp. 3d 4, 15 (S.D.N.Y. 2021). The consent does not have to be formal, instead the Court must analyze
the petitioner’s conduct prior to the removal or retention, and “consider what
the petitioner actually contemplated and agreed to in allowing the child to
travel outside its home country. “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 failed to prove by a preponderance of the
evidence that Petitioner consented to Respondent taking the two children to New
York on December 29, 2021. The parties did not dispute that on the day of the
separation, the Mother left with the two children and did not tell Petitioner
where they were going. Petitioner called and texted the Mother, who refused to answer.
Specifically, that evening, Petitioner texted the Mother asking what she was
planning and whether she was going to the United States, and begging her not to
take the children away. Chumachenko v.
Belan, No. 18-CV-9728-LTS, 2018 WL 6437062, at *8 (S.D.N.Y. Dec. 7, 2018) (holding the respondent failed to prove that the consent
defense applied where “Respondent’s departure to the United States was
immediately followed by contemporaneous text messages from Petitioner
protesting Respondent’s actions, lamenting his unilateral decision to take the
Children away from her, and refusing to write a letter allowing the Children to
live with Respondent”). Petitioner stated he was “blindsided”, and that
Respondent made this decision without him. While the parties had discussions
about the Mother and children going to live with her parents in New York after
Petitioner’s arrest, these discussions did not indicate Petitioner provided
consent to their removal at the time of the separation. See Velozny, 550 F. Supp.
3d at 16–17 (holding the petitioner did
not consent to removal where emails showed the petitioner discussed receiving
assistance from his father-in-law in New York but eventually rejected the idea
of sending the children there); Laguna v. Avila, No. 07-CV-5136
(ENV), 2008 WL 1986253, at *7 (E.D.N.Y. May 7, 2008) (holding that the parties’ custody agreement that stated
that after returning to Colombia the child could move to the United States if
he so desired was insufficient to establish the petitioner consented to
retention of the child in the United States). While the Mother provided
testimony showing that Petitioner gave her the children’s birth certificates
before they left the house, this, without more, was insufficient to establish
Petitioner’s subjective consent to her taking the children to live in New York.
See Kosewski v.
Michalowska, No. 15-CV-928 (KAM)(VVP), 2015 U.S. Dist. LEXIS 139924,
at *44–45 (E.D.N.Y. Oct. 14, 2015)
(denying consent defense where the record established that petitioner
accompanied respondent to a passport office after she requested that he consent
to the child obtaining a passport, but the parties disputed whether respondent
told petitioner that she planned to move to the United States with the child
prior to petitioner’s agreement); In re J.J.L.-P., 256 S.W.3d
363, 375 (Tex. App.—San Antonio 2008, no pet.) (upholding denial of the consent defense where the
petitioner surrendered the child’s travel documents to the respondents because
petitioner testified that he surrendered the documents to permit the child to
enter the country for the holidays only). The Court held that Respondent has failed to prove
by a preponderance of the evidence that Petitioner consented to the children’s
removal and retention.
Petitioner next averred that there was a grave risk that returning
the children to Canada would expose them to harm. The Court noted that Article
13 of the Hague Convention prevents the Court from ordering the return of a
child when “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). “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.” Abdollah Naghash
Souratgar v. Fair, 720 F.3d 96, 103 (2d Cir. 2013). The respondent bears the burden of establishing the
defense by clear and convincing evidence. See 22 U.S.C. §
9003(e)(2)(A).
The defense requires a real risk of the child being harmed. Blondin v.
Dubois, 238 F.3d 153, 162 (2d Cir. 2001). The
Court agreed with Respondent that the record established “Petitioner’s unstable
mental health and demonstrated history of engaging in dangerous and illegal
activities” and that this created a probability of grave harm and an extreme
magnitude of harm. Specifically, Respondent averred that Petitioner’s untreated
mental health issues, history of domestic violence and coercive conduct, and
access and possession of child pornography together demonstrated a grave risk
of harm to the children.
The record reflected an existence of factors in combination that
create a grave risk of harm if the children were returned to Canada. First,
Petitioner has a long and serious history of untreated mental health issues.
Petitioner had suicidal
ideation and attempts since the age of
ten. He attempted suicide three times,
including once when Child 1 was asleep in the house. Petitioner was diagnosed
with BPD in 2020, but did not answer in the affirmative when asked if he
accepts his diagnosis. He was not prescribed medication until March of 2021,
and had been unable to begin the treatment needed for BPD. While he acknowledged
a need for treatment and to unpack past traumas, Petitioner has had an unstable
history of treatment, and only recently began working with a psychiatrist in
response to his criminal charges.
Respondent presented testimony from Dr. Elizabeth Jeglic, a
clinical psychologist and professor, who testified that DBT is an intense behavioral
treatment for those with BPD and repeated
suicide attempts, which typically takes years to become effective. Without this
therapy, BPD symptoms including self-harming, suicide, and emotional
instability, would continue. Further, Dr. Jeglic discussed the
intergenerational suicide risk which states that a parent who attempts suicide
increases the risk of their children engaging in suicidal behavior. There was
no doubt that exposing the children to suicidal behavior would create a real
risk of psychological harm.
In addition, Petitioner had a concerning history of angry and
manipulative behavior. He had threatened to commit suicide, hit and shoved
Respondent out of anger, continued play fights with both Respondent and Child 1
when asked to stop due to pain, and strangled Respondent to the point of almost
passing out. Petitioner also had intense, angry reactions when the Mother
merely brings up discussing him with others, including her therapist. While
most of this behavior was directed at the Mother, “evidence of prior spousal
abuse, though not directed at the child, can support the grave risk of harm
defense.” Davies v. Davies, 717 F. App’x
43, 47–48 (2d Cir. 2017) (upholding the
district court’s finding that the grave risk of harm defense applied as the
petitioner had a history of “pervasive, manipulative violence” that consisted
of psychological abuse). This was particularly concerning now, as the Mother had
discussed Petitioner’s mental health issues and criminal charges with a full
range of people, including her family, friends, and the Court.
Finally,
and perhaps most important, was the
Petitioner’s arrest for access and possession of child pornography. He has
discussed having sexual fantasies involving children. While she did not examine
Petitioner, Dr. Jeglic testified that those who possess child pornography are
at an increased of risk of contact sexual abuse. Dr. Gojer established that without treatment, Petitioner
does create a risk to children. See M.M v. F.R, No. 11 Civ. 2355 (PKC),
2011 U.S. Dist. LEXIS 156760, at *26 (S.D.N.Y. June 30, 2011) (holding a grave
risk of harm existed where eight years prior the petitioner engaged in sexual
abuse of a child and had since had a “lack of a meaningful and continuing
regimen of rehabilitation”). Further, while the children are too young to
understand what is happening now, Child 1 will soon be at an age where he will
start to question what is happening to his family. The “derivative harm” of
Child 1 eventually learning about his Father’s actions could prove to be
“psychologically devastating.”
Petitioner
states that he had consented to eight ameliorative measures if this Court ordered
the children return to Canada, including (i) JFCS is notified in advance of the
return date of the children to Canada; (ii) Petitioner continues to comply with
all surety conditions; (iii) Petitioner has no contact with Respondent upon her
return to Canada; (iv) Petitioner continues to undergo therapy with Peach; (v)
Petitioner continues to take his Sertraline prescription; (vi) Petitioner
commences DBT with Peach; (viii) Petitioner continues to reside with his
parents; and (viii) Petitioner continues to comply with all JFCS conditions and
requirements. The court noted that in considering ameliorative measures, the
Court must (1) “prioritize the child’s physical and psychological safety”; (2)
“abide by the Convention’s requirement that courts addressing return petitions
do not usurp the role of the court that will adjudicate the underlying custody
dispute”; and (3) “accord with the Convention’s requirement that courts act
expeditiously in proceedings for the return of children.” Golan v. Saada, 142 S. Ct.
1880, 1893–94 (2022). The Court did not find that these ameliorative measures
would prioritize the children’s physical and psychological safety. None of the
proposed measures address Petitioner’s history of aggressive behavior and
coercive control. None of the measures adequately protect the children from
Petitioner’s pedophilia. The Court held that Respondent established the grave
risk of harm defense.
