Broca v. Giron, 2012 WL 7660123 (E.D.N.Y.) [Mexico] [Grave Risk of Harm] [Age and Maturity]

 In Broca v. Giron, 2012 WL 7660123 (E.D.N.Y.) on November 30, 2011, petitioner Jose Leonides Varillas Broca ("petitioner") filed a petition under the Hague Convention alleging that his wife, respondent Mirna Mariana Gil Geron ("respondent"), wrongfully removed their three children from Mexico, and asking the Court for an order that the children be repatriated to Mexico. Petitioner was a Mexican citizen, and lived in Cardenas, Tabasco, Mexico. Respondent was also a Mexican citizen, and currently lived in Brooklyn, New York. The three children were all citizens of Mexico, but had been in the United States since July of 2010. Although initially petitioner brought this action regarding all three children, the oldest child had since turned sixteen and was therefore no longer subject to the Hague Convention.

 On July 16, 2012, the Honorable Sterling Johnson referred the matter to a Magistrate to hold an evidentiary hearing and issue a Report and Recommendation. The Magistrate concluded that: (1) petitioner established a prima facie case for repatriation of his two children under the Hague Convention; (2) the children were not well settled in New York to an extent precluding repatriation under the Hague Convention; (3) respondent had not established that the grave risk of harm exception to repatriation applies; and (4) the mature child defense did not apply to prevent repatriation in this case. He recommended that this Court grant petitioner's petition for
 repatriation of his two children to Mexico, the country of their habitual residence.

 Petitioner and respondent were married in April of 1995 and began living together in Cardenar after their religious wedding ceremony on June 3, 1995. They  had three children together, J.V. ("oldest child"), M.V. ("middle child"), and J.V. ("youngest child"), and the youngest two children were subjects of this action..The middle child was born on December 3, 1997, and was currently fourteen years old. The youngest child was born on October 16, 2002, and was currently nine years old. All three children were born in Mexico and were Mexican citizens. The middle child and youngest child attended school in Cardenas, and the middle child received very high marks. Petitioner and respondent lived together in their family home until February 2010. One night that month, petitioner and respondent had a fight. Tr. at 83:22-85:3; 123:21-125:14. According to respondent, petitioner had locked her out of the house, and that she entered the house through a window and got into bed. She says that petitioner accused her of cheating and told her she had to be examined by a doctor, and when she refused, he "began jerking [her] around." Petitioner confirms that he told respondent that she had to be examined by a doctor to see if she had sexual relations with someone else, but denies yelling at her.According to the middle child, her parents' fighting woke her up that night. After the fight, respondent took the middle child and youngest child and went to her mother's house. Respondent stayed with the two younger children at her mother's home until July of that year. Between February of 2010 and July of 2010, petitioner saw the children on
 weekends and tried to stay involved in their lives. Respondent testified that during this time, she would sometimes run into petitioner on the street in their small town, that he would become violent and jerk her around on the street, and that he once forcibly tried to pull her onto his motorbike. In late July of 2010, she took the children out of Mexico, without telling petitioner or asking his permission. They traveled to Brooklyn to live with respondent's other sister, Gabriela, in New York City.

 Petitioner denied having abused respondent or the children He did admit to having had at least one fight with respondent that turned physically violent. Respondent, on the other hand, claimed that petitioner abused her for nearly the entire duration of their marriage. She stated that when she was pregnant with the youngest child in 2002, petitioner kicked her and she fell down. She claimed that in the years 2008 and 2009, petitioner hit her often and was getting very violent. Respondent went to Mexico City to stay with her father four or five times during this period of time because she felt safe in her father's home. Respondent also claimed that petitioner was controlling and verbally abusive to her. Respondent's mother testified that she had seen bruises on respondent during her marriage to petitioner. According to the middle child, in Mexico, "[my parents] were fighting all the time and they like punched each other or hit and they yell at each other." She saw her father hit her mother, and "[l]ike he kick her or he like grab her by the hand and like throw her away." Respondent and the middle child both recounted an incident, occurring when the middle child was six or seven, wherein petitioner hit the middle child on the bottom with a broom. The middle child testified to another incident when petitioner hit her on the bottom with a belt. In her deposition, entered into evidence, respondent described a third incident with the middle child, wherein petitioner dragged her by the arm into the house. Respondent was not aware of any where petitioner abused the youngest child.

 Dr. Evan Stark, who the court permitted to testify as an expert in domestic violence, testified at the hearing about the impact of domestic violence on women and on children who witness their mother's abuse. Dr. Stark concluded to a high degree of certainty that there was domestic violence in respondent's life, and that petitioner was coercive and controlling of respondent. He also testified about the general harms to children who observe a parent being abused, explaining that there are direct effects (including direct physical exposure and being involved in the violence) and indirect effects (including psychological disturbance). He explained that in order to conclude that the children in this case had suffered any psychological harm, he would need to perform a psychological assessment of the children. Dr. Stark, however, did not perform a psychological assessment of either child. Dr. Stark opined that the children face extreme risk if they were to be returned to Mexico to live with petitioner. When asked whether they would face risks if they lived in Mexico City with their mother, Dr.
 Stark opined that "the risk [the children would face] would be largely a function of the willingness of the authorities to limit access of [petitioner] and it would be largely a function of the risk that [respondent] would face." Dr. Stark's prescription for what can be done to reduce the harm the children have already suffered from witnessing domestic violence is that: [the children should be sent] a strong message that tells them that no one has a right to do what was done to them or to expose them to what they were exposed to and that their mother's decision to put her own safety and their safety before their network of contacts and relationships with loved ones and family members is a decision that we respect and endorse. He characterized respondent's removal of the children from Mexico as "the single-most healthy act that could have been taken."

 Respondent did not appear to make any arguments respecting petitioner's prima facie case and appeared to urge this Court to focus on the affirmative defenses respondent raises. The children lived their entire lives in their family home in Mexico, and had been living in the United States for only two years since their
 removal. These facts alone were sufficient to establish that the children's habitual residence under the Hague Convention was Mexico. Petitioner established that removal of the children was in breach of his custody rights. He submitted evidence of Mexican law showing that he and respondent had joint custodial rights by virtue of being the children's parents, and that those custodial rights can only be terminated by judicial action. Petitioner also established that he was exercising his custody rights at the time of removal. At the time respondent removed the children from Mexico, the children had been living with respondent and her mother for approximately five months. During this time, the children spent weekends with petitioner, and he remained involved in their schooling. The Magistrate concluded that petitioner has proven by a preponderance of the evidence the Mexico was the habitual residence of the children, that petitioner had rights of custody, and that respondent removed the children from Mexico in breach of petitioner's custody rights. Therefore, petitioner raised a prima facie case of wrongful removal under the Hague Convention.

 Respondent argued that petitioner has physically and psychologically abused her and the children, and that the children should remain in New York where they are attending school, receiving superior health care and education to that which they received in Mexico, and happily living in a circle of extended family. Under Article 13(b) of the Hague Convention, "a court may decline to repatriate a child if the party opposing repatriation establishes by clear and convincing evidence that repatriation would create a grave risk of physical or psychological harm to the child." Blondin IV, 238 F.3d at 157. The harms a child may experience if repatriated can be considered on a spectrum. Id. at 162.At one end are "those situations where repatriation might cause inconvenience or hardship, eliminate certain educational or economic opportunities, or not comport with the child's preferences."Id. These situations do not constitute grave risk of harm under the Hague Convention. At the other end of the spectrum are "those situations in which a child faces a real risk of being hurt, physically or psychologically, as a result of repatriation." These situations do constitute grave risk of harm under the Hague Convention. If a court concludes that a child faces grave risk of harm, before it can decline to order repatriation, the court must determine whether there are any ameliorative measures that could be taken to reduce this risk and enable a child to return safely to his home country. Id. In fact, the Second Circuit has instructed that a finding of grave risk of harm, without consideration of ameliorative measures, is not sufficient to deny repatriation. The grave risk analysis must be based upon the "specific facts presented in th[e] case."Id. at 163 n. 12.A court may consider as non-dispositive factors whether the children are settled into their new environment, and whether the children have views on repatriation, taking into account the children's age and degree of maturity. Reyes Olguin v. Cruz Santana (Olguin II), No. 03-CV-6288, 2005 WL 67094, at *8 (E.D.N.Y. Jan. 13, 2005).

 The Magistrate observed that in cases where respondents have established this defense, courts "have focused on evidence of a sustained pattern of physical abuse and/or a propensity for violent abuse." Laguna v. Avila, No. 07-CV-5136, 2008 WL 1986253, *8 (E.D.N.Y. May 7, 2008) (collecting cases). Evidence of sporadic or isolated incidents of abuse, or incidents aimed at persons other than the child at issue is typically not sufficient to establish grave risk of harm. In this case, there was no sustained pattern of physical violence against the children. The middle child testified to two incidents of physical abuse from her father, when he hit her on the bottom with a broom and a belt. According to respondent, the middle child was six or seven when the broom incident occurred, and petitioner said that he was trying to discipline the child. There was no evidence presented that petitioner had ever physically abused the youngest child. This evidence certainly does not show a sustained pattern of physical abuse of the children. The evidence did establish that petitioner abused respondent. Respondent testified to physical abuse that began early on in their relationship. The middle child verified that her parents were "fighting all the time and they like punched each other or hit and they yell at each other" and that she saw her father kick and grab her mother. Although some courts have found that a child witnessing extreme abuse may suffer psychological harms sufficient to invoke the grave risk of harm defense, the evidence did not support such a finding here. When asked whether she had any fears about returning to Mexico, the middle child responded that she was afraid people would talk about her. If she returned to Mexico, she would not want to live with her father anymore because she doesn't "want anything to happen again." Although she did not elaborate, I infer that she does not want her parents to fight. DDr. Stark's testimony merely confirmed that the relationship between petitioner and respondent was abusive, and that, generally speaking, children are negatively impacted by witnessing one parent abuse the other. Dr. Stark interviewed respondent for four hours, but spent very little time with the two children. He agreed that in order to conclude that the children had suffered serious psychological harms, a psychological assessment would need to be done on the children. Nevertheless, without conducting such an assessment, he gave his opinion of the harm caused to the children, and the risks they faced upon return to Mexico. He characterized the harms suffered by the children as "serious," from having been "exposed and repeatedly exposed to [petitioner's] abuse of [respondent]." Dr. Stark's opinions were easily distinguished from expert testimony that has been found to support denial of repatriation based on grave risk of harm. First, Dr. Stark's testimony about the general risks of harm to children witnessing a parent's abuse did not establish that these harms actually occurred in this case. See Blondin IV, 238 F.3d at 163 n. 12 (explaining that the grave risk of harm exception requires a close examination of the particular facts relating to the child at issue). Indeed, Dr. Stark testified that, although he did not perform a psychological assessment of the children, "[he] didn't observe and [respondent] did not report to [him] that the children had suffered any extreme psychological harms." Second, unlike cases where courts have denied repatriation based on children observing a parent's abuse, Dr. Stark did not conclude that the children would suffer trauma solely as a function of their return to Mexico. See Blondin IV, 238 F.3d at 166 (affirming district court's application of the grave risk of harm defense where the district court concluded that the mere return of a child to her home country would trigger post-traumatic stress disorder); Elyashiv v. Elyashiv, 353 F.Supp.2d 394, 408 (E.D.N.Y.2005) (children witnessed physical abuse of a parent, and mere return to their home country would trigger post-traumatic stress disorder). The evidence does not establish that the children have suffered extreme harm, or would suffer a grave risk of harm if repatriated. Respondent bases her argument on several cases where courts in other Circuits found grave risk of harm based on a child's observation of one parent's abuse of the other parent. In these cases, however, the evidence established that the conduct of the violent parent was extreme. In this case, the admissible evidence shows that petitioner was physically and emotionally abusive to respondent on a number of occasions, and that the physical abuse involved, at most, kicking and hitting. There is no evidence that petitioner was uncontrollably violent or threatened anyone's life.

 Even if the Court were to conclude that the children faced a grave risk of  harm from return to the custody of their father, this Court would need to consider the options for repatriation that might reduce that risk. Blondin IV, 238 F.3d at 163 n. 11. Here, the record indicated that there were arrangements available to the family that could ameliorate that risk. When asked about the risks the children would face if they were to return to Mexico with their mother while living in Mexico City, Dr. Stark opined that "the risk would be a function of the willingness of the authorities to limit [petitioner's] access to his wife." Respondent did not argue that these ameliorative options are foreclosed by nature of Mexican law, or that she has already exhausted the possible ways she could live away from petitioner, but remain in Mexico with the children. She argues merely that, based on Dr. Stark's opinion, "she will not be safe if she returns to Mexico," Respondent's own testimony, however, indicated that she felt safe in Mexico City with her father. The evidence indicated that it was possible for respondent and the children to live safely in Mexico City, and presumably for respondent to negotiate visitation with petitioner or seek a judicial decree of divorce and/or a change in custodial arrangement from the Mexican courts. Respondent testified that "in [Mexico] no one pays attention to women who are abused. On other occasions when [abuse] has happened, I had wanted to bring charges. But unfortunately sexism is very rampant in Mexico." She also testified that after the incident in February of 2010, she and petitioner went to court and were told that they should "work things out for the sake of [the] children." There was no evidence that respondent has sought any other help from authorities or social resources, nor that she has attempted to initiate divorce proceedings.Therefore, because the evidence did not support a finding of grave risk of harm to the children and there wereoptions for the safe return of the children to Mexico, the Court could not deny repatriation based on the grave risk of harm exception under Article 13(b) of the Hague Convention.

 Respondent argues that petitioner instituted these proceedings more than one year after the children were removed from Mexico, and that the children are well settled in the United States.. The evidence establishes that petitioner instituted these proceedings more than one year after respondent removed the children from Mexico. The children had been in the country for two years but moved four times. The family never had its own residence. Respondent worked several waitressing jobs since she came to New York, and did not pay taxes on her wages. She was here illegally, as were the children. The middle child spent the first twelve years of her life in Mexico, and had only been in the United States for the last two years. Although the youngest child has spent a larger portion of his life here because he was only nine years old, he was struggling with English and not doing well in school. These factors, taken together, indicated that the children were not well settled within the meaning of the Hague Convention.

 Respondent argued that the middle child objected to her return to Mexico, and that she was of sufficient maturity that this Court should take her objection into account. The middle child, who testified with an impressive command of the English language even though she knew no English when she came here two years ago,
 impressed the Court as intelligent and well-spoken. It found her testimony compelling and very credible, and believed that she gave honest answers about why she wanted to stay in the United States. Her reasons for objecting to her return, however, did not provide a basis for the Court to deny repatriation. She testified about the problems in her family when asked specifically about them, but when asked what she did not like about Mexico, she responded that she did not like the people because she lived in a small town and the people were talking about her all the time. When asked what she likes about life away from Mexico, she said that she liked Texas "because it's pretty," and that she likes New York because of the tall buildings, her friends, and her family. When asked why she did not want to return to Mexico she responded, "Because I made friends here and I'm more comfortable here."Id. at 183:14-15.She elaborated that she is more comfortable here because her family is here. When asked if she had any worries or fears if she were to go back to Mexico, she responded, "[t]hat I don't-when I grow up I don't be a lawyer." When asked if she was afraid of anything in Mexico, she responded, "[j]ust that people are going to talk about me. The middle child also testified that she wants to stay in the United States because she will get a better education and have a chance to be a lawyer. These reasons expressed "a
 well-adjustment to life in the United States and a simple preference for the luxuries of living in New York," which is not sufficient to establish the mature

Souratgar v Fair, 2012 WL 6700214 (S.D. N.Y., 2012) [Singapore] [Grave Risk of Harm]

In Souratgar v Fair, 2012 WL 6700214 (S.D. N.Y., 2012) the district court granted the Petition of Abdollah Naghash Souratgar, an Iranian citizen, for the return of his son, Shayan, to Singapore. Shayan. The child was born in Singapore and had Malaysian citizenship. Shayan’s mother, respondent Lee Jen Fair, a Malaysian citizen, left Singapore with Shayan on May 20, 2012 without petitioner’s knowledge or consent and in violation of a Singapore court order prohibiting either parent from taking the child out of Singapore and traveled to the United States. On October 18, 2012, shortly after the father learned that the child and respondent were living in Dutchess County, New York, he filed a petition with this Court. After hearing the testimony from the petitioner and his investigators, the Court granted an ex parte application for an order directing the U.S. Marshal to take "all necessary and lawful steps" to "remove Shayan" from his mother’s custody and deliver him "into the custody of [p]etitioner." Petitioner was ordered to surrender his passport and post a $10,000 bond. On November 7, 2012, both parties appeared with counsel, and the Court scheduled an evidentiary hearing. The Court appointed a guardian ad litem for Shayan. After a hearing the Court granted the petition.

Since 2000, petitioner was an employment-pass holder in Singapore, where he worked. He first traveled to Singapore in 1985 and set up his company there in 1989. The head office of the business he owns was located in Singapore and had twelve employees. He also owned a business in Iran. Respondent had permanent resident status in Singapore.

In 2007, the couple married, and on January 16, 2008, they registered their marriage in Singapore. Shayan was born on January 29, 2009. The child had Malaysian citizenship and had resided in Singapore from birth until the respondent removed the child to the United States. There was considerable strife in the marriage, and on April 29, 2011, while the couple still resided together, respondent filed an application for sole custody, care, and control of the child in the High Court of the Republic of Singapore. On May 16, 2011, she obtained an ex parte order from the Subordinate Courts of the Republic of Singapore prohibiting petitioner from removing the child from the jurisdiction of Singapore without respondent’s consent or the court’s approval. Respondent left the marital home with the child on May 25, 2011 and moved into her sister’s Singapore apartment. Shortly thereafter, petitioner was served with a copy of the May 16, 2011 order. Petitioner filed a cross-application for sole custody on June 28, 2011. At a mediation session held on July 14, 2011, the Subordinate Court issued an order prohibiting both parties from removing the child from Singapore. The Order also granted petitioner supervised visitation every Saturday between 3 p.m. to 5 p.m. at the Centre for Family Harmony, the costs of which were to be borne equally.

 

The district court observed that persons of the Muslim faith are a small minority in Singapore. By statute, divorce actions between individuals of the Muslim faith must be brought in the Singapore Sharia Courts. Administration of Muslim Law Act, Part III, § 35(2) ("AMLA"). Sometime around the end of 2011, respondent brought an action for divorce in the Singapore Sharia Courts. Respondent attended a mandatory counseling session within the Sharia Court. Petitioner testified that he did not participate in the action. Petitioner’s Singapore counsel testified that the divorce action did not proceed. The Singapore Subordinate Court continued to function on issues relating to temporary custody of the child and visitation and on February 16, 2012, after a mediation session presided over by a judge of the Singapore Subordinate Court, the court ordered that "[t]he child shall continue to be in the care of the mother pending the determination of custody, care, and control of the child by the Syariah Courts" and that "[t]he father shall have access to the child two times a week at the Centre for Family Harmony pending the outcome of the hearing of the Syariah Courts."⁴ The order stated in boldfaced capital letters that it was entered "BY CONSENT."

 

On May 20, 2012, the respondent left Singapore in breach of the July 14, 2011 order. Petitioner obtained a court order requiring the respondent to deliver the child to the Duty Judge of the Subordinate Courts Family and Juvenile Division within seven days and surrender the child’s personal documents. This order specified that "[t]he child be placed in the interim sole care and control of" the petitioner "pending the determination of the action or until further Orders." The same order further directed that respondent be restrained from removing the child from the jurisdiction without the consent of petitioner or the court. Respondent, who was no longer in the country and likely did not receive notice of the June 5, 2012 order, did not comply and was held in contempt on June 25, 2012.

 

The district court found that petitioner established each and every element of a prima facie case under the Hague Convention. The district court observed that Article 13(b) of the Hague Convention provides that the signatory state "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). Although the respondent bears the burden of establishing by clear and convincing evidence that the exception applies, 42 U.S.C. § 11603(e) (2)(A), subsidiary facts may be proven by a preponderance of the evidence. It noted that the Second Circuit considered the "grave risk" exception at length in Blondin II and Blondin v. Dubois, 238 F.3d 153 (2d Cir.2001) ("Blondin IV" ). The court explained that mere showings of "inconvenience or hardship" do not amount to a "grave risk" of harm. Rather a "grave risk" of harm exists where "the child faces a real risk of being hurt, physically or psychologically, as a result of repatriation." The court cited withapproval the Sixth Circuit’s observation that a "grave risk" to the child presents itself 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.’ (quoting Friedrich, 78 F.3d at 1069) In the years since the Second Circuit’s consideration of the Blondin case, several federal courts have found "a child’s observation of spousal abuse is relevant to the grave-risk inquiry." E.g., Elyashiv v. Elyashiv, 353 F.Supp.2d 394, 408 (E.D.N.Y.2005). "Children are at increased risk of physical and psychological injury themselves when they are in contact with a spousal abuser." (citing Tsarbopoulos v. Tsarbopoulos, 176 F.Supp.2d 1045, 1058(E.D.Wash.2001). Accordingly, evidence of "[p]rior spousal abuse, though not directed at the child, can support the grave risk of harm defense." Rial v. Rijo, 10 Civ. 1578(RJH), 2010 WL 1643995, at *2 (S.D.N.Y. Apr. 23, 2010) (citing Walsh v. Walsh, 221 F.3d 204 (1st Cir.2000)). Still, the court need not "refuse to send a child back to [his] home country in any case involving allegations of abuse, on the theory that a return to the home country poses a grave risk of psychological harm." Blondin IV, 238 F.3d at 163 n. 12. Rather, that determination must be based on the "specific facts presented in [the] case."  When making a grave risk determination, the court must also consider whether the child can be protected from the risk of harm "while still honoring the important treaty commitment to allow custodial determinations to be made—if at all possible—by the court of the child’s home country." Blondin II, 189 F.3d at 248. In its deliberation of whether there is a grave risk of harm, the Court takes into account "any ameliorative measures (by the parents and by the authorities of the state having jurisdiction over the question of custody) that can reduce whatever risk might otherwise be associated with a child’s repatriation." "In cases of serious abuse, before a [district] court may deny repatriation on the ground that a grave risk of harm exists under Article 13(b), it must examine the full range of options that might make possible the safe return of a child to the home country." Blondin IV, 238 F.3d at 163 n. 11. For instance, in Blondin v. Dubois, 19 F.Supp.2d 123, 129 (S.D.N.Y.1998) ( "Blondin I" ), the district court concluded that there would be a grave risk of harm should the children in that case be returned to France, the country of their habitual residence. The Second Circuit, in Blondin II, remanded the case to the district court for "further consideration of the range of remedies that might allow both the return of the children to their home country and their protection from harm, pending a custody award in due course ...." 189 F.3d at 249. On remand, the district court engaged in further analysis but reached the same conclusion, in part because "any return" of the children would " ‘almost certainly’ trigger a recurrence of their traumatic stress disorder." Blondin v. Dubois, 78 F.Supp.2d 283, 295 (S.D.N.Y.2000) ("Blondin III" ). On appeal, the Second Circuit affirmed the district court’s determination that there was a grave risk of harm to the children because repatriation to the country of habitual residence created a real risk of triggering further psychological trauma, regardless of any potential mitigating arrangements. Blondin IV, 238 F.3d at 161. In applying the standard set out in the Blondin cases, district courts inthis Circuit have denied petitions to return the child where there has been evidence supporting a finding of a real risk of psychological or physical harm to the child. Elyashiv, 353 F.Supp.2d at 408–09 (evidence petitioner physically abused respondent and the children and expert testimony that the children would suffer PTSD symptoms upon their return to Israel, regardless of contact with petitioner); Reyes Olguin v. Cruz Santana, No. 03 Civ. 6299, 2005 WL 67094, at *2–*4, *11–*12 (E.D.N.Y. Jan. 13, 2005) (evidence petitioner frequently beat respondent in front of the children, children told psychiatrist that petitioner hit them, and expert testimony that return of the children would exacerbate the PTSD of one child). This Court held in M.M. v. F.R., No. 11 Civ. 2355(PKC) (S.D.N.Y. June 30, 2011), that respondent had established that repatriating the child would expose him to a grave risk of physical or psychological harm, because, among other things, the petitioner had sexually abused the child’s half-sister. But, credible evidence of some level of abuse by the petitioner does not necessarily equate to establishment of the grave risk to the child in repatriation. See, e.g., Rial, 2010 WL 1643995, at *2–*3 (evidence of verbal and physical abuse toward respondent, at times in front of child); Laguna v. Avila, No. 07 Civ. 5136, 2008 WL 1986253, at *8–*9 (E.D.N.Y. May 7, 2008) (evidence of violence toward respondent, but no evidence that petitioner physically abused the child). The focus of the inquiry is not on the relationship between the two parents or the desirability of one parent having custody. Rather, the focus should be on whether returning the child to the country from which he was removed will present a real risk of harm to the child, because, for example, it will trigger trauma to the child or the country of habitual residence lacks the means to afford reasonable protection to the child from physical or psychological harm at the hands of a parent or third-party.

 

The district court found that both parties had deep love for Shayan and cared greatly about his well being. Respondent testified that she never saw petitioner physically abuse the child. Moreover, she never reported to the police any incident where petitioner abused the child. She never claimed in the Singapore courts that petitioner abused the child. Petitioner and respondent both alleged instances of domestic abuse and inappropriate conduct aimed at one another. The Court found that Respondent had exaggerated her claims, and did not establish her grave risk of harm defense. For example, Respondent testified that petitioner forced her to engage in certain sexual acts, including anal and oral intercourse, which often occurred in the marital bedroom where the child slept. The Court did not credit respondent’s testimony because respondent’s SMS text messages to petitioner contradicted her account and indicated that she was a willing participant.

A Dr. B.J. Cling, retained by respondent, testified as an expert on domestic violence matters. Dr. Cling opined that respondent suffered from symptoms of post-traumatic stress disorder and depression. Dr. Cling testified about a specific type of domestic violence termed "coercive control" or "intimate terrorism," which "has as its main focus the domination and control of the victim." This type of violence is severe, frequent, and very harmful to children. Moreover, when the victim and perpetrator separate, the characteristics of "coercive control" often escalate. The Court found that the evidence did not support this conclusion and that the Respondent failed to prove her grave risk of harm defense.

The district court also rejected respondents Article 20 defense. It permits the requested State to refuse the return of the child when it "would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms." Hague Convention, art. 20.¹³ The Article 20 defense must be restrictively interpreted and applied on the rare occasion that return of a child would utterly shock the conscience of the court or offend all notions of due process." The parties did not cite and the Court could not find any published federal case law in which the Article 20 exception was found to have been established. See Uzoh v. Uzoh, No. 11 Civ. 9124, 2012 WL 1565345, at *7 (N.D.Ill. May 2, 2012) (noting the same).

Respondent argued that returning the child was not permitted by the fundamental principles of the United States because the custody determination in Singapore will be made in a Sharia Court. AMLA grants the Sharia Courts in Singapore considerable discretion in considering evidence from non-Muslims. See AMLA § 42(3). Respondents expert, Ms. Hassan, testified that a woman’s testimony is worth less than a man’s in the Sharia Courts. Moreover, she testified that Sharia Law applies presumptions favoring fathers and disfavoring non-Muslim parents in custody determinations. These rules, respondent urged, ought shock the conscience and offend notions of due process. The Court concluded, that it need not reach the issue of whether the procedural and substantive rules in Sharia Courts "shock the conscience" or "offend all notions of due process" because the Court found that respondent failed to prove that it was more likely than not that the Sharia Court would make a final custody determination in this case.

 

Respondent also argued that there were insufficient protections against domestic violence in Singapore, and thus, Article 20 bared the child’s repatriation. The Court found that Singapore had reasonable procedures to ensure the safety of the child during the pendency of the custody proceedings including supervised visitation.

  The Court concluded that it would be an improvident exercise of discretion to stay the Order pending appeal because there was a significant risk that Respondent would flee with the child and avoid detection. The treaty between the United States and Singapore contemplates the "prompt" return of the child to the country of habitual residence. See Hague Convention, art. 1. The Court granted a brief stay of return to permit a stay application to be made to the United States Court of Appeals for the Second Circuit and otherwise denied a stay pending appeal.

Taylor v Taylor, 2012 WL 6631395 (C.A.11 (Fla.)) [United Kingdom][Grave Risk of Harm]

In Taylor v Taylor, 2012 WL 6631395 (C.A.11 (Fla.)) (Not Selected for publication in the Federal Reporter) Mr. Iverson Taylor, a British citizen, petitioned for relief under the Hague Convention alleging that his wife, Ms. Keysha Taylor, an American citizen, wrongfully retained their daughter, A.T., in Florida since February 2009. The district court conducted an evidentiary hearing and found Mr. Taylor untrustworthy and that his testimony was not credible in a number of areas. Given Mr. Taylor's long history of deception and fraudulent activity, the Eleventh Circuit held that is finding was not clearly erroneous.

The Taylors were married in the United States in 2003. After Mr. Taylor was deported to the United Kingdom for failing to disclose his three theft convictions when he entered the United States, Ms. Taylor joined him. They lived in the United Kingdom together from 2005 until 2009. A.T. was born there in 2007. Mr. Taylor had constant money problems, and he frequently lied to his wife and others to swindle money from them. During their marriage, he was arrested for fraud, but those charges were ultimately dismissed. Ms. Taylor found evidence in Mr. Taylor's emails that he was engaging in fraudulent activities. She also began receiving harassing phone calls from Mr. Taylor's creditors at their home. In November 2008, she received a call from a man who told her that if Mr. Taylor did not pay what he owed, "he would be dead and so would [she]." There were several more calls from that caller during November and December of 2008. Ms. Taylor, an attorney licensed to practice in Florida, was able to support her family for a short time in the United Kingdom by working at a law firm. After A.T. was born, she supported the family with her maternity leave funds and then with funds paid to her based on a separation agreement with her employer. After this money ran out, however, she was unable to find another job in the United Kingdom. Mr. Taylor did not provide a reliable income, and the family was evicted from their home in the United Kingdom in December 2008. They were able to move into another apartment when, as Ms. Taylor testified, Mr. Taylor "came up with a large amount of cash."She did not know the source of that cash but believed it was from illegal activities. Soon after that, they had difficulty paying the rent again. Mr. Taylor was living in a temporary location and planed to move if A.T. was returned to him. He remained unemployed and claimed he supported himself with "outstanding debts and collections on old accounts."

Because of the financial difficulties, the fighting in their marriage, and the frightening
phone calls, Ms. Taylor told Mr. Taylor she wanted to leave the United Kingdom and
take A.T. with her. He refused to give her A.T.'s passport. He also told her that he
"knew people" in the United Kingdom who could "take care" of her. It was only after she signed an agreement promising to bring A.T. back the next month that he gave her the passport. Ms. Taylor returned with A.T. to her parents' house in Florida.

When Ms. Taylor told Mr. Taylor that she would not be returning A .T. to the United
Kingdom, he began to threaten her and her parents. He told Ms. Taylor's mother over
the phone, "I am not gonna stop until I destroy your daughter. She's never gonna work in the United States again."In another call, he told Ms. Taylor that he knew people in Florida who could "take care" of her and he could "have somebody come to [her] house, and when [her] father opens the door, shoot him in the face."He also sent Ms. Taylor an email saying, "You are going to want my mercy soon and you won't get it ... God help you if anything happens to my child." After Ms. Taylor returned to the United States, she filed for bankruptcy. She got a job and was making $85,000 a year. Because of the remaining debts from her marriage, she testified that she still "live[s] paycheck to paycheck." She was unsure if she would be able to get a job in the United Kingdom if she and A.T. moved back, both because of the poor market and because her residency status was uncertain. .

The district court concluded that Ms. Taylor had wrongfully taken A.T. from her
habitual residence in the United Kingdom. She did not dispute that finding. She asserted that returning A.T. would expose her to a "grave risk" as described in Article 13(b). The district court agreed that it would and did not order A.T. returned to the United Kingdom.

The Eleventh Circuit affirmed. It stated that whether there is a "grave risk" to the child as defined in Article 13(b) of the Convention is a mixed question of law and fact, which it reviews de novo. Baran, 526 F.3d at 1345. It reviews the district court's factual findings only for clear error and give substantial deference to the credibility determinations made by the district court. Furnes v. Reeves, 362 F.3d 702, 710, 724 n. 21 (11th Cir.2004).

The Eleventh Circuit observed that the district court provided two primary justifications for its finding that sending A.T. back to the United Kingdom would subject her to a "grave risk" of harm. First, the court reasoned that the anonymous death threats Ms. Taylor received were indicative of future violence: if one person threatened Ms. Taylor, there are likely others who "would not hesitate to threaten to kill, kidnap, or do physical harm to A.T. in order to get Mr. Taylor to pay what he owes." The court made an explicit finding that Mr. Taylor's testimony concerning his current source of income (collection of "outstanding debts") was not credible and concluded that he had been and continued to be engaged in fraudulent activities. Second, the court focused on the threats Mr. Taylor has made against Ms. Taylor: telling her he knew people in the United Kingdom and in the United States who could "take care" of her; threatening to send someone to shoot her father; threatening to ruin her professionally; promising her that she would want his mercy soon and would not get it. The court did not credit Mr. Taylor's assertion that he never threatened Ms. Taylor or her parents and found that "Mr. Taylor threatened to use others to physically harm (and maybe even kill) Ms. Taylor."

The Court pointed out that, as the district court recognized, this case was unique because the risk to A.T. stemmed not only from threats made by her father but also from threats made by an unknown third party. The district court's credibility determinations about the nature of the threats and Mr. Taylor's continued participation in fraudulent activities were not clearly erroneous. The court found that those fraudulent activities had already created-and likely would continue to create-a substantial risk of serious harm to Mr. Taylor's family. Based on the unique facts of this case and the district court's specific credibility determinations, the district court did not err by determining that Ms. Taylor had established a grave risk of harm to A.T. if she is returned to live with Mr. Taylor in the United Kingdom.