Ramirez v Buyauskas, 2012 WL 606746 (E.D.Pa.) [Mexico] ["patria potestas] [well-settled in New Environment] [Wishes of the Child]

In Ramirez v Buyauskas, 2012 WL 606746 (E.D.Pa.) the District Court denied the Petition for return of his three children, filed by Francisco Javier Montes Ramirez, a Mexican citizen. The Petition was filed on October 13, 2011. Petitioner was a Mexican national who resided in Zapopan, in the Mexican state of Jalisco. Around 1992, while visiting his sister in Philadelphia, petitioner met respondent at a party. Respondent, a United States citizen, moved to Mexico to live with petitioner approximately three months after they met. They married in West Chester, Pennsylvania, on August 23, 1997 and had three children together: Francisco Javier, Junior, born January 7, 2000, age twelve ("Paco" or "Paquito") (referred to as "Paquito"); Kate Alexis, born August 14, 2003, age eight ("Katie"); and Chelsey Megan, born March 3, 2009, age two. All three children were born in the United States and were United States citizens, but, with the exception of some visits to relatives in the greater Philadelphia area, they never resided in the United States before August 2010. In Mexico, Paquito was most recently enrolled in fifth grade, and Katie was in second grade; Chelsey was too young for school. The children attended a large public school at which the school day lasted four hours. The children received inadequate medical care in Mexico because the family
lacked medical insurance. In Mexico, the children did not have regular doctors or dentists, and they only were able to see a doctor when they were sick. After Paquito arrived in the United States, respondent learned that Paquito had contracted a latent form of tuberculosis in Mexico that required nine months of antibiotic treatment.
As of June 2010, respondent had recently reconnected with her biological
father, Richard Buyauskas, who lived in Houston, Texas, after an extensive period
during which they did not communicate. On about June 11, 2010, Richard Buyauskas purchased airline tickets for respondent, Paquito, Katie, and Chelsey. The airline tickets were for round-trip travel between Guadalajara, Mexico, and Houston, Texas. Respondent and the children were to leave Mexico on July 12, 2010, and to return to Mexico on September 3, 2010. Petitioner believed that respondent was planning to travel to the United States with the children in July 2010 "[t]o visit her father, her new father, to travel here to Philadelphia to visit her mother, and to return to Mexico" on September 3, 2010. Petitioner had "a concern" about the trip because he was worried that respondent and the children might not return. Respondent had told him that she wanted the family to move to the United States, but petitioner was hesitant to agree because respondent was just reconnecting with her biological father. The Court found that Petitioner did not consent to respondent and the children moving to the
United States permanently in July 2010. Petitioner executed a document that gave respondent permission to travel outside of Mexico with the children. Respondent did not seek permission from a court to remove the children from Mexico before leaving.
On July 12, 2010, petitioner drove respondent and the children, who had only
some of their belongings with them, to the airport. Among those belongings were legal documents, including the children's birth certificates and the parties' marriage certificate. . On July 12, 2010, respondent and the children traveled from Mexico to Houston, Texas, where they stayed with Richard Buyauskas for about a month. Respondent called petitioner from Richard Buyauskas's house about a week after leaving Mexico and informed him that she intended to remain in the United States with the children permanently. Respondent told petitioner that he could not "follow them or do anything because she's in the United States and that she has
the support of her whole family." Petitioner tried to encourage respondent to return to Mexico with the children. After receiving respondent's phone call, petitioner began seeking legal assistance to regain custody.
The Court concluded that the wrongful retention in this case began on the date
July 25 when respondent called petitioner from Houston, Texas, and told him that she intended to remain in the United States with the children permanently. After the telephone call, petitioner understood that respondent did not intend to bring the children back to Mexico, he informed her that he wanted her to return, and he contacted the Mexican Secretariat to learn what legal remedies were available to him. It also found that prior to July 25, 2010, the children's habitual residence was Mexico. Before the wrongful retention, the children habitually resided in Mexico with petitioner and respondent for the children's entire lives, interrupted only by vacations to the United States. Petitioner did not consent to a permanent move to the United States; instead, he believed that respondent and the children were traveling to the United States for a vacation that was to end on September 3, 2010, with a return flight from Houston to Guadalajara. "Where the child's initial move from an established habitual residence was clearly intended to be for a specific, limited duration ... most courts will find no change in habitual residence," unless "the child's original habitual residence has been effectively abandoned by the shared intent of the parents."Whiting, 391 F.3d 549.There was no such shared intent in this case; petitioner never agreed for the children to reside in the United States, nor had he abandoned his desire for the children to return to Mexico. The Court concluded that the children's habitual residence prior to July 5, 2010, was Mexico and that petitioner and respondent had no "present, shared intention" for the children to reside in the United States. The Court therefore looked to the child custody laws of the state of Jalisco, Mexico, where the family resided prior to July 2010, to determine whether respondent breached petitioner's custody rights. The Court observed that custody law in Mexico is based on the concept of "patria potestas" (also
spelled "patria potestad"), which is: "The parents' responsibility to care for the child, reside with the child, and provide for the child's necessities, including food, education and development."The patria potestas gives a right to correct the child, the right
to control and manage any property or rights the child may have and the right to
the child's assistance. By law, the right to patria potestas belongs to both parents, but the exercise of the right, by necessity, normally involves one decision-maker. Concurrence or agreement is not required. Historically, the father had superior rights of the patria potestas, but today it is a joint responsibility. If the parents are deceased or unavailable, the paternal grandparents may exercise the patria potestas. If the paternal grandparents are unavailable, the maternal grandparents may exercise the patria potestas. March v. Levine, 136 F.Supp.2d 831, 842 (M.D.Tenn.2000) In Jalisco, Mexico, patria potestas "governs the relationship between parents and their children" as part of the CCEJ. Patria potestas 'is exerted by both parents,' ( [CCEJ Art.] 581), and lasts until it ceases under Article 597, is terminated under Article 598, or is suspended under Article 601." The Court concludedthat petitioner had custody rights under CCEJ Article 581 and that those rights had not been abrogated by any other CCEJ provision. Under Article 581, which provides that "[ p]aternal
authority/responsibility (patria potestas) is exerted by both parents or in the given case, by the surviving parent," petitioner had custody rights over all three children unless one of the three exceptions-cessation under Article 597, termination under Article 598, or suspension under Article 601-applied. No such exception was applicable here. Article 597 provides that patria potestas ceases in the event of the parent's death, "emancipation of the minor," the
minor's reaching the age of majority, or the revocation of an adoption. None of
these have occurred. Article 598 states that patria potestas "can" be terminated
in certain circumstances, but only by a judicial decree at the conclusion of a
criminal, civil, or divorce case. See CCEJ Article 599. Likewise, Article 601
requires "a judicially pronounced lack of capacity," "a judicially pronounced absence," or "a guilty verdict that imposes the suspension [of patria potestas] as part of the sentence."In this case, neither party introduced any evidence that, at any time, there have been any Mexican court orders bearing on the custody of the children or on petitioner's fitness as a parent. Therefore, petitioner had custody rights as to his three children under the law of Jalisco, Mexico, before respondent retained the children in the United States.
The Court further concluded that respondent breached petitioner's custody
rights under the law of Jalisco when she retained the children in the United
States. Under the doctrine of patria potestas, both parents must consent to the
removal of the child from the country. Because he established that respondent breached his custody rights under the law of the children's habitual residence-that is, Jalisco, Mexico-the third prong of the prima facie case was satisfied. The fourth element of a prima facie case under the Hague Convention is "whether the petitioner was exercising his or her custody rights at the time of removal or retention. The petitioner can show the exercise of custody rights by demonstrating that he or she kept or sought to keep[ ] some sort of regular contact with the child. Essentially, nothing short of clear and unequivocal abandonment will prove that the petitioner failed to exercise his or her custodial rights."Once it is
determined that a party had valid custody rights under the country of origin's
laws ... [t]he applicant need only provide some preliminary evidence that he or
she actually exercised custody of the child, for instance, took physical care of
the child. This element was satisfied. Petitioner lived with the children and cared for
them until they left Mexico with respondent in July 2010. Although the Court did
not credit petitioner's testimony that he was the de facto sole caretaker of the
children, the Court found that petitioner shared the responsibilities of childcare
with respondent while they lived together in Mexico. The Court concluded that petitioner has established all four elements of a prima facie case for return of a child under the Hague Convention. Nevertheless, the court found that the Article 12 "well settled" and the Article 13 "mature child objecting" affirmative defenses applied in this case.
Respondent and the children resided in Pennsylvania since late August 2010,
and petitioner knew where they were; he even communicated with them while they
were at respondent's mother's house. Although petitioner was diligent in contacting the Mexican authorities for assistance, the delay of more than fourteen months before petitioner filed this case was not attributable to concealment of the children by respondent. The Court was sympathetic to petitioner in that it took him time to gather the documents to complete the Hague Applications and the CI and Secretariat took many months to process the applications. However, precedent does not authorize tolling based on bureaucratic foot-dragging; instead, tolling is appropriate "where the parent removing the child has secreted the child from the parent seeking return," obstructing the noncustodial parent seeking return from filing suit in the appropriate jurisdiction. Furnes v. Reeves, 362 F.3d 702, 723-24 (11th Cir.2004). Because respondent did not conceal the children's location from petitioner, the Court concluded that equitable tolling was not appropriate. Thus, the Article 12 well-settled defense was available to respondent.
In concluding that the well-settled exception applied, one district court in
this circuit considered the following factors: (1) the age of the child; (2) the stability of the child's new residence; (3) whether the child attends school or daycare consistently; (4) whether the child attends church regularly; (5) the stability of the [parent's] employment or other means of support; (6) whether the child has friends and relatives in the area; ... (7) to what extent the child has maintained ties to the country of habitual residence ... [8] the level of parental involvement in the child's life[;][9] active measures to conceal [the] child's whereabouts (and the possibility of criminal prosecution related thereto) [;] and [10] the immigration status of the child and respondent. Castillo, 597 F.Supp.2d at 438 (citing, inter alia, Lops v. Lops, 140 F.3d 927, 946 (11th Cir.1998); In re Koc, 181 F.Supp.2d 136, 153 (E.D.N.Y.2001)). The court considered the evidence of these factors which overwhelmingly showed that all three children were well settled in the United States. The evidence introduced at the hearing and the Court's in camera interviews with the children demonstrated that Paquito and Katie wereintelligent children of remarkable maturity. They spoke English fluently and
eloquently despite having lived in the United States for less than seventeen months. In addition to respondent's testimony that all three children were "doing great," the Court found credible respondent's mother's testimony that the children's adjustment to the United States was "impressive" and respondent's brother's testimony that the children were doing "extremely well." The Castillo factors also uniformly supported the Court's conclusion.
The Court also concluded that respondent had proven by a preponderance of the evidence that return was not appropriate because Katie and Paquito "object[ ] to being returned and ha[ve] attained an age and degree of maturity at which it is appropriate to take account of [their] views." Convention Art. 13. The Court concluded that both Paquito and Katie objected to being returned to Mexico and were old enough and mature enough for their views to be given credence. The Court further concluded that neither child's desire to remain in the United States was "the product of undue influence." The Court took Paquito's and Katie's views into account because both children were articulate, intelligent, and mature. Both demonstrated extraordinary composure and behavior throughout these adversarial legal proceedings. In circumstances that would be expected to unnerve most children their age-including, in Paquito's case, testifying in federal district court and being subject to cross-examination-Paquito and Katie remained unflappable. During Paquito's open-court testimony and the children's in camera interviews, both made extremely favorable impressions. The evidence introduced at the hearings-including that Paquito and Katie had learned fluent English in less than two years, that both
were on the honor roll, and that they had impressed respondent's family with their adaptation to the United States-further supported the Court's conclusion that they were "of sufficient age and maturity" for their views to receive consideration. See Art. 13. Paquito objected to being returned to Mexico in open court, and both children objected during their in camera interviews with the Court, away from respondent and her family. Paquito and Katie gave articulate, rational explanations as to why they wanted to stay in the United States; Katie cited the higher quality of life, including the family's greater ability to afford food, and Paquito expressed concern about his father's "violent" nature and use of a belt to discipline him . Given their coherent explanations, their mature comportment, their clear and forthright
statements that they wished to remain in the United States, and the fact that their
desire to stay persisted even when the Court questioned them further about whether
anyone told them how to answer the Court's questions, the Court concluded that the children's preferences were not the product of undue influence. Accordingly, the Court also concluded that the mature-child-objecting defense justified permitting the children to remain in the United States.

Castillo v Ochoa, 2012 WL 523696 (D.Nev.) [Mexico] [Well Settled in New Environment]

In Castillo v Ochoa, 2012 WL 523696 (D.Nev.) petitioner, Jose Manuel Garza-Castillo sought the return of his child from the United States to Mexico, pursuant to the Convention. The respondent, Mellody Nallely Guajardo-Ochoa opposed the petition. The court held an evidentiary hearing on Jose's petition, and denied the Petition pursuant to the second paragraph of Article 12 of the Hague Convention. It found that Jose commenced these proceedings more than one year from the date of the wrongful removal of the child from Mexico to the United States. Mellody demonstrated, by substantial evidence, that the child was well settled in its new environment.
Neither Jose nor Mellody disputed that Mexico and the United States
are Contracting States to the Hague Convention; the child was habitually resident in Mexico prior to November 2008; On or about November 1, 2008, Mellody removed the child from Mexico to the United States; Under the laws of Mexico, Jose had rights of custody to the child before the removal; At the time of the removal, Jose actually exercised his rights of custody to the child; Mellody's removal of the child from Mexico to the United States was in breach of Jose's rights of custody. The child, who was born
in May 2006, and has not yet attained the age of 16 years. The court found that Jose did not consent to Mellody removing the child from Mexico and retaining her in the United States.
It was undisputed that Mellody removed the child to the United States in early November 2008. Jose filed his petition on March 16, 2010, more than one year after Mellody removed the child to the United States. Pursuant to Article 12 of the Hague Convention, when proceedings are commenced more than one year after the wrongful removal, a child is to be ordered returned "unless it is demonstrated that the child is now settled in its new environment. Jose argued (in opposing Mellody's motion to dismiss his petition) that the Court should toll the one-year term because Mellody concealed the child's "exact location" from him, and because he did not have an address for Mellody and the child. The Ninth Circuit has held that equitable tolling is available under the Hague Convention only where "the abducting parent took steps to conceal the whereabouts of the child from the parent seeking return and such concealment delayed the filing of the petition for return." Duarte v. Bardales, 526 F.3d 563, 570 (9th Cir.2008). The evidence received during the hearing indicated that Mellody initially engaged in an effort to conceal the child's location from Jose. When Mellody left in late October or early November 2008, she left a note for Jose. The note, however, did not provide any indication as to where Mellody and the child were going. In her December 28, 2008, e-mail to Jose, Mellody expressed a reluctance to disclose her location (or to return to Mexico) as she perceived a risk of losing the child to Jose. The Court could not conclude, however, that Mellody's initial act of concealing the removal and location of the child from Jose "delayed the filing of the petition for return."The Court reached this conclusion after giving "significant consideration to the overarching intention of the Convention-deterring child abduction." .Jose did not offer any evidence into the record that, subsequent to December 28, 2008, Mellody engaged in an effort to conceal her location from Jose. The evidence received during the hearing also established that Jose was not only well aware of Mellody's connections to Las Vegas (where she was raised and had numerous relatives) but that he was aware of the addresses of Mellody's relatives in Las Vegas. When Mellody left Mexico, she left behind her address book, which contained the addresses of her relatives in Las Vegas. By the end of January 2009, the names and addresses of Mellody's relatives in Las Vegas appeared in official Mexican documents as locations where Mellody could be located. The documents included the name and address of the aunt with whom Mellody stayed for the first three months in Las Vegas. The documents also included the name of the uncle with whom Mellody stayed during the early part of 2009, until July 2009 (when Mellody moved in with Melvin). Mellody was served with Jose's petition at the address where she had resided since July 2009. Further, the Court found little, if any, credible evidence to suggest that, subsequent to December 28, 2008, Jose engaged in an effort to locate the child sufficient to warrant tolling of the one-year period.. Other than his own testimony, which the court said was discredited, Jose did not offer evidence into the record of efforts made to locate the child. Also absent from the record was any explanation as to the change in circumstances resulting in Jose being able to locate Mellody and the child in the Las Vegas area in March 2010, but not prior to that date.
The child was born in May 2006. Mellody removed the child to the United States in late October or early November 2008, when the child was just less than two and one-half years old. Jose filed his petition in March 2010, and served Mellody with the petition in late April or early May 2010, when the child was just less than four years old. At the time Jose filed his petition, the child had spent a significant portion, though not the majority, of her life in the United States. At the time of the evidentiary hearing in January 2012, the child was more than five and one-half years old, and had been living in its new environment for significantly more than half of its life. Upon arrival in Las Vegas, the child resided for several months with Mellody in the home of Mellody's Aunt Dora. The child and Mellody then resided in the home of another of her aunts until July 2009. In July 2009, the child and Mellody moved into a residence of Melvin Albrego, to whom Mellody is now married. The child continued to reside with Mellody and Melvin at that residence for two years. About six or seven months prior to the hearing, the child, Mellody, and Melvin moved to a new residence, where they have since resided. Each of these residences is within the Las Vegas area. Since the end of August 2011 the child had been enrolled in and attended kindergarten in the Clark County School District. Prior to becoming old enough to attend school, while Mellody was at her place of employment, the child would be in the care of her aunt, with whom Mellody and the child were residing in April 2009. The aunt continued to provide child-care to the child after Mellody and the child moved into the residence of Melvin. The child, through Mellody, has approximately 50 extended relatives in the Las Vegas area, including her great-grandparents, great aunts and uncles, and cousins. The child regularly (often on a weekly basis) met with and participates in events with her extended relatives. The child's relatives include young children with whom the child interacted. The child often met with her extended relatives and knew them by name. Melvin, who was now married to Mellody, had between 80 and 100 extended relatives in the Las Vegas area. Typically, Melvin, Mellody and the child had a family dinner at the home of Melvin's mother on Tuesdays. The child often met with Melvin's extended family, and knew many of them by name. The child treated Melvin's extended family as if they were the child's extended family. The child had created friendships with other children who are not her relatives. The child spent time with her friends, including attending events and birthday parties. The court received testimony that, with at least one other child, the child had maintained a friendship for three years. The child and Mellody attended church two or three times each month. Mellody had been employed since April 2009 with the same employer, earning approximately $1500 to $2000 bi-weekly. Melvin was also employed.
The Ninth Circuit has indicated the following factors are to be considered in making this determination: (1) the child's age, (2) the stability and duration of the child's residence in the new environment, (3) whether the child attends school consistently, (4) whether the child has friends or relatives in the new environment, (5) whether the child participates in community or extracurricular school activities, (6) and the respondent's employment and financial stability. Mendoza v. Miranda, 559 F.3d 999, 1009 (9th Cir.2009). Further, of these, the factor that is ordinarily the most important is the length and stability of the child's residence in the new environment.
The court held that Mellody met her burden of proof of "substantial evidence of the child's significant connections" to the new environment and denied the petition.

Radu v Toder, 2012 WL 556174 (C.A.2 (N.Y.))(Romania) (Rights of Custody)

In Radu v Toder, 2012 WL 556174 (C.A.2 (N.Y.))(Not Selected for publication in the Federal Reporter) Petitioner Iulian Cristian Radu appealed from an August 3, 2011 order of the District Court denying his petition to compel the return of his son, L.R., to Romania pursuant to the Hague Convention. Radu argued that his ex-wife, respondent Petruta Toader, wrongfully moved L.R. from Romania to the United States in violation of Radu's "rights of custody" under the Hague Convention. The Court of Appeals affirmed. It reviewed a district court's factual determinations in cases arising under the Hague Convention for clear error and its legal conclusions de novo. (Citing Blondin v. Dubois, 238 F.3d 153, 158 (2d Cir.2001). It observed that the Convention defines "rights of custody" to include "rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence."Hague Convention, art. 5. The Convention distinguishes between rights of custody and rights of access. The latter is also a defined term under the Convention and means "the right to take a child for a limited period of time to a place other than the child's habitual residence." ICARA similarly defines "rights of access" to mean "visitation rights." 42 U.S.C. 11602(7). A parent has a "right of custody" if his or her consent is legally required before the other parent may move the child to another country (a "ne exeat " right), and a breach of such right gives rise to a return remedy under the Convention. (Citing Abbott v. Abbott, 130 S.Ct. 1983, 1992 (2010). By contrast, "[t]he Convention provides no return remedy when a parent removes a child in violation of a right of access." Radu has no ne exeat right. Under Romanian law, a child's domicile is established as the domicile of the parent to whom the child was entrusted by a final and irrevocable court decision. Decision No. 922/2009. If parents do not share the same domicile, then the child's domicile is established by common agreement of the parents, or, absent such agreement, by a court. But that provision does not govern a situation in which sole custody of the child has been granted to one parent. Because the divorce decree entrusted sole custody of L.R. to Toader, giving Radu only a right of visitation, Toader did not need Radu's consent to change L.R.'s domicile. While L.R.'s removal may have violated Radu's rights of access, it did not violate any rights of custody for purposes of the Convention. This interpretation of Romanian law was reinforced by an April 2011decision of a Romanian court, which denied Radu's efforts to compel the return of L.R. and noted that Radu could not seek L.R.'s return because custody of the child had been entrusted to Toader. (Citing Diorinou v. Mezitis, 237 F.3d 133, 142 (2d Cir.2001) ("American courts will normally accord considerable deference to foreign adjudications as a matter of comity. In particular, we have observed that comityis at the heart of the Hague Convention.")

Oddy v Morris, 2012 WL 464227 (D.Hawaii) [United Kingdom][Grave Risk of Harm]

In Oddy v Morris, 2012 WL 464227 (D.Hawaii) Christopher Oddy ("Petitioner") filed an Emergency Verified Petition for Return of Children to the United Kingdom. Petitioner and Respondent were married on April 11, 2003 in the United Kingdom; Petitioner is a citizen of the United Kingdom and Respondent is a citizen of the United States. The children were born in the County of Poole, United Kingdom, and are citizens of the United Kingdom and the United States. Petitioner and Respondent were divorced in the Bournemouth County Court in the United Kingdom on October 7, 2009. The Bournemouth County Court did not make any orders with respect to parental responsibility, residence or contact at the time of the parties' divorce. Petitioner stated that, under English law, specifically the Children Act 1989, he and Respondent share equally parental responsibility of both
children. According to Petitioner, the following acts took place in 2010 and 2011: On March 17, 2010, the Mother [Respondent] had filed an application in the United Kingdom's High Court of Justice, Family Division, Bournemouth District Registry (the "English Court"), requesting permission to permanently remove the children from the United Kingdom. A trial was scheduled for December 2 and 3, 2010 on the Mother's application. As a result of the Mother's application for permanent removal having been filed, the English Court ordered that a report be prepared by the Children and Family Reporter, Mrs. Pat Holmes. Mrs. Holmes prepared her report dated October 8, 2010 and submitted it to the English Court. After the report was submitted to the English Court, a hearing was held before His Honour Judge Meston Q.C. on October 25, 2010. Judge Meston had reviewed both parties' submissions, reviewed the report prepared by the Children and Family Reporter and had heard from counsel for both parties with respect to agreements reached between the parties. At the hearing on October 25, 2010, the English Court issued a Residence and Contact Order on October 25, 2010. . The Residence and Contact Order provided hat the children shall reside with the Mother in the United Kingdom and set out a detailed and extensive schedule of contact for the Father in the United Kingdom. No order was made with respect to the parents' ex lege joint parental responsibility pursuant to the Children Act 1989. The Residence and Contact Order provided hat the Mother's application to permanently remove the children from the United Kingdom would be withdrawn and that the trial on her application scheduled for December 2-3, 2010 be vacated.
Thereafter the parties functioned pursuant to the Residence and Contact Order, which did not address the issue of parental responsibility, and both parties continued to share parental responsibility under the Children Act. Because the parties were both the parents of the children and no court suspended or otherwise terminated either party's parental responsibility, the parties continue to share parental responsibility for the children under the Children Act by operation of law. The Residence and Contact Order provides as follows with respect to removing the children from the United Kingdom: "WARNING: Where a Residence Order is in force no person may cause the child to be known by a new surname or remove the child from the United Kingdom without written consent of every person with parental responsibility for the child or the leave of court. However, this does not prevent the removal of the child for a period of less than one month by the person in whose favor the Residence Order is made (Sections 13(1) and (2) Children Act 1989). It may be a criminal offence under the Child Abduction Act of 1984 to remove the child from the United Kingdom without the leave of the court." After the issuance of the Residence and Contact Order, the parties and children continued to reside in the United Kingdom and followed the schedule for residence and contact set out in the Residence and Contact Order. The Father was scheduled to have his regularly scheduled time with the children on July 30, 2011 and was also scheduled to begin his summer holiday time with the
children on August 1, 2011. When the Father went to pick up the children on July 30, 2011, he discovered that the Mother's home was completely empty. Immediately upon discovering that the Mother's home was completely empty, the Father began searching for the children and reaching out to family and friends for help locating his daughters. The Father learned from one of the Mother's friends that the Mother had taken the children to Hawaii and later confirmed from other friends and relatives that the Mother had taken the children to Hawaii.
The testimony and evidence presented at the hearing supported these facts as set forth in the Petition. The Court found that Petitioner established that he had parental responsibility for the children and did not consent to their removal from their habitual residence in the United Kingdom. Respondent did not obtain leave of court before she removed the children from the United Kingdom, and, since the removal of the children, Petitioner had not acquiesced to their removal or retention.
Based on the evidence presented, the Court found that Respondent had not met her burden of establishing that the children were at grave risk of harm if returned to the United Kingdom. The evidence that Petitioner was physically, verbally, and mentally abusive to Respondent during the course of their marriage and thereafter was troubling. Respondent testified regarding Petitioner's history of alcohol abuse and anger management issues, and its effect on the family. The Court found Respondent's
testimony credible with respect to her fear of Petitioner's angry outbursts and threats of violence against her and her friends. Respondent also presented credible evidence that the children witnessed verbal confrontations and disagreements between their parents, which may have affected the children psychologically and emotionally. Specifically, a 2006 incident in which Petitioner physically kicked and struck Respondent in front of the oldest child and destroyed household property, and subsequently pleaded guilty to breaching the peace and criminal property damage, and an April 2011 incident at Waterloo Station in which Petitioner verbally threatened Respondent and a third-party in front of the children during a custody exchange. The Court also heard testimony regarding an April 2011 incident during which the younger child was injured while in Petitioner's care. The parties disputed the cause and severity of the injury to the child's elbow. Respondent maintained that Petitioner yanked
the child up by her arm as she resisted having her diaper changed; Petitioner contended the injury was the result of normal play with the children. Respondent faulted Petitioner for waiting several hours between the time of the injury and when he eventually sought medical care for the child the next morning. A hospital record indicated the following history of the presenting complaint: "[p]laying when getting nappy changed L. arm around her elbow very painful and not moving it, very upset in triage." The Court found that the parties' respective views of the incident were reconcilable based on the testimony and evidence presented at the hearing, and credited each. Respondent also recounted another recent incident in which the older child became ill while playing outside with Petitioner during poor weather conditions, and detailed her concerns regarding Petitioner's parenting capabilities. It was clear that the parties' relationship was troubled both during and after their marriage, when Petitioner was abusive toward Respondent, and that Respondent believed that matters were deteriorating in the months before she removed the children. The Court, however, found that, as troubling as this behavior may be, Respondent had not established for purposes of the article 13(b) analysis that the children would suffer "serious abuse that is a great deal more than minimal." Gaudin, 415 F.3d at 1035; see also Whallon v. Lynn, 230 F.3d 450, 460 (1st Cir.2000) (stating that a husband's "verbal abuse and an incident of physical shoving" directed at his wife, while regrettable, was insufficient to establish a "grave risk" of harm to the child, especially where there was no allegation that the father had ever abused the child, either physically or psychologically). The Court considered the alleged psychological harm suffered by the children and found that, while regrettable and unacceptable, any such harm did not to rise to the level required for sustaining an article 13(b) exception. See Whallon, 230 F.3d at 460 ("The logic, purpose, and text of the Convention all mean that such harms are not per se the type of psychological harm contemplated by the narrow exception under article 13(b). To conclude otherwise would risk substituting a best interest of the child
analysis for the analysis the Convention requires. This would undercut the Convention's presumption of return where rights of custody have been violated....").
Based on the foregoing, the Court granted the Petition.