In Ermini v Vittori, 2013 WL 1703590 (S.D.N.Y.)
Emiliano Ermini ("Petitioner"), an Italian citizen, petitioned the seeking the
return of his two sons to Italy alleging that the two boys, E.E., age 9, and D.E.
age 7, who were Italian citizens, had been retained in the United States by
their mother, Respondent Viviana Vittori ("Respondent"), also an Italian
citizen, without Petitioner's consent. After a trial the district Court denied
the petition without prejudice to renewal if D.E. was not able to continue with
his current CABAS program and the Italian court system issued a final order
requiring the return of the children to Italy. Petitioner's request for an award
of legal fees and costs and expenses was also denied.
Petitioner and Respondent, the parents of E.E. and D.E., were married in Italy
in July 2011. Respondent had initiated divorce proceedings in Italy and the
parties were now legally separated. The family came to the United States in
August 2011 in connection with efforts to secure effective medical and
rehabilitative treatment for D.E., who was autistic. D.E. was diagnosed with
autism on March 14, 2008, when he was approximately two years old. Petitioner
and Respondent were both committed to helping D.E. and took him to various
doctors in Italy as well as abroad in Scotland for medical treatment. When
Petitioner and Respondent's own resources were inadequate to pay for the
treatments, they solicited donations through a website and a blog about D.E. Dr.
Antonucci was D.E.'s primary treating professional in Italy from December of
2008 until May of 2010. One of the treatments that Dr. Antonucci recommended for
D.E. was hyperbaric oxygen therapy, which was eventually administered in a
hyperbaric chamber installed in the family home in Velletri, Italy. He also
treated D.E. for gut inflammation, heavy metal intoxication and viral issues
believed to be underlying physical causes of autism. D.E.'s "support teacher" at
his school in Italy did not know any specific techniques for treating children
with autism. On their own initiative, Petitioner and Respondent attended
training in Applied Behavioral Analysis ("ABA") techniques at a private
institution, Pianeta Autismo, and Respondent attended three additional courses.
With the permission of the principal of D.E.'s school, Respondent spent two
hours each day at D .E.'s school, instructing the support teacher in the ABA
techniques. Petitioner and Respondent also consulted with another doctor in
Italy, Dr. Claudia Lerz, to develop an ABA treatment plan for D.E. According to
Respondent's expert, Dr. Fiorile, ABA therapy is "the most common treatment" for
children with autism in the United States and it can have an enormous impact on
the life of an autistic child Dr. Antonucci also endorsed ABA treatment.
Respondent estimated that she personally provided 70-80% of D.E.'s thirty to
forty weekly hours of ABA treatment while the family were living in Italy.
Professional ABA treatment would have been preferable but very expensive. The
Italian national health care system covered 90 minutes a week of psychomotility
therapy for D.E. for the first year after his autism diagnosis, with an extra 90
minutes of speech therapy during the second year, but did not pay for other
types of treatment or therapy for D.E. Both Respondent and Petitioner were
unhappy with the options for D.E.'s schooling and therapy in Italy as they did
not see results in D.E.'s developmental progress. They began to look elsewhere
for treatment options, and in October of 2009, the family traveled to Florida
for a week, at the recommendation of Dr. Antonucci, to consult with an American
doctor about therapies available for D.E. in the United States. In April or May
of 2010, Petitioner and Respondent met Dr. Giuseppina Feingold in Italy. Dr.
Feingold was an Italian-speaking pediatrician with a practice in Suffern, New
York, who focused on children with special needs. In August of 2010, Petitioner
and Respondent traveled with E.E. and D.E. to Suffern, New York, so that Dr.
Feingold could assess and begin treating D.E. The family stayed with
Respondent's first cousins, John and Patricia Tempesta, at their home in
Ridgefield, Connecticut. During that August 2010 visit, they met other parents
at Dr. Feingold's clinic, who told them about provisions for special needs
children at the local schools in the Suffern area. Both Respondent and
Petitioner were impressed
by the treatment options available for D.E. in the United States. Around this
time, Petitioner and Respondent began to formulate a plan for the family to move
to the United States for two or three years, during which time Petitioner and
Respondent could decide if it would be possible and appropriate to make a
permanent move to the United States. Meanwhile, Petitioner began meeting with
Marcello Russodivito, to whom he had been introduced through one of Mr.
Tempesta's contacts, about potentially investing in Mr. Russodivito's restaurant
so that he could obtain a business visa for himself and derivative ones for his
family, which would allow them to pursue treatment for D.E. in the United
States. Mr. Russodivito understood that Petitioner planned to fund the
restaurant investment by selling the family's house in Italy.
On September 2, 2011, Petitioner and Respondent co-signed a one-year lease for a
house near Mr. Russodivito's restaurant. On September 15, 2011, Respondent, E.E.
and D .E. moved into that house. In October, Mr. Russodivito arranged for one of
his employees, Pasquale Ruggiero, to share the house with them. In September and
November, E.E. and D.E. were enrolled in the local public schools. In an email
to Respondent at the time, Petitioner said that they should ship "books,
clothing, any furniture we can't sell, ornaments, dishes, sheets, blankets" in a
cargo container from Italy to the United States. Petitioner also researched the
cost of shipping D.E.'s hyperbaric oxygen chamber. On September 13, 2011,
Petitioner wrote to the U.S. Consulate in Rome to apply for visas for himself
and his family for the purpose of "explor[ing] the possibilities of entering
into a business partnership with Mr. Marcello Russodivito who already owns an
established Italian restaurant in the city of Suffern, NY. I also wish to
request a B-2 visa for my wife and 2 children, who will accompany me in this
trip to the United States." Respondent traveled with the two children to Italy
to renew their United States visas in November 2011 and then the children and
Respondent returned to Suffern, while Petitioner went to Italy to finish
settling the family's affairs. Petitioner did not return to the United States
until December 2011.
Meanwhile, on September 20, 2012, Petitioner applied to the Italian court for an
order directing the Respondent to return with the children to Italy and
provisions for visitation with the children. With only Petitioner in attendance,
the court in Velletri ordered Respondent to return to Italy with the children
and also ordered temporary measures including that Petitioner and Respondent
would live separately but share parental authority; that Respondent and the
children would live in the family home; that Petitioner could visit 8–12 hours
per week; and that Petitioner would pay spousal and child support of 1,600 Euros
per month. At the time of trial, Respondent had not complied with the Italian
court's order to return to Italy with the children, nor had there been
visitation or any other contact between Petitioner and the children. Respondent
appealed the Velletri Court's order and, on April 5, 2013, the Court of Appeals
in Rome vacated several provisions of the September 20, 2012, Order and granted
Respondent exclusive custody of the children. The April 5, 2013, Order, also
withdrew the Velletri Court's prior order requiring that Respondent return to
Italy, revoked the award of the family home to Respondent, and revoked the
Petitioner's visiting rights and rights of access to the children. Although the
April 5, 2013, Order provided Respondent with exclusive custody of the children,
it did not necessarily moot Petitioner's application to the district Court
because it was a temporary order, which appeared to have been designed, at least
in part, to conform to Family Court protective orders in the United States,
which are were in effect until 2014. It expressly contemplated further
investigative and adjudicative proceedings in the lower court.
Petitioner again left for Italy in early January 2012, following an altercation
with Respondent . The two children had not left the United States since November
of 2011, but Respondent left the country again in April 2012, to attend court
proceedings in Italy. On December 1, 2012, Respondent and the two children moved
to their current residence in Suffern with Mr. Ruggiero. Petitioner never
relocated to the United States.
D.E. was severely autistic and had only a limited capacity for speech. He did
not appear in court. Respondent and Mr. Ruggiero took care of feeding D.E.,
grooming him and ensuring that he was supervised and occupied. According to
Respondent and to Dr. Fiorile, D.E. had significantly progressed in his school
environment in the United States and was moving closer to being able to lead an
independent life. When he first began school in the United States, D.E.'s test
results were far below average; at age six, he presented with the fine motor
skills of a three year old. Dr. Fiorile opined that D.E. performed poorly on the
testing because his Italian treatments had been deficient. According to Dr.
Fiorile, the CABAS program, which D.E. currently attended at a school in Stony
Point, New York, offered the best ABA curriculum available to autistic children.
Dr. Fiorile testified that D.E. had "one-to-one instruction" throughout the day
and had made "exceptional progress" Dr. Fiorile explained that the high level of
intervention in D.E.'s current classroom setting was the key to his success. Dr.
Fiorile further opined that D.E. required a program like the one in which he was
currently enrolled to continue to making meaningful progress in, among other
things, cognition, language, social and emotional skills. Dr. Fiorile further
opined that, if D.E. "were to be removed from this educational program and not
provided this intensity of educational programming that's being provided by
highly skilled and trained professionals" he will face "a severe loss of the
skills he has successfully developed since beginning in CABAS ...." (“CABAS” is
an acronym for Comprehensive Application of Behavioral Analysis to Schooling and
it is “an intensive, data-driven specialized ABA program.” ) While the United
States has over 4,000 board certified ABA practitioners, Dr. Fiorile knew of
fewer than twenty in Italy. Dr. Fiorile concluded in her January 11, 2013,
Report, admitted into evidence at trial, that if D .E. was separated from his
CABAS program, he "will most certainly fail to make the same level of progress
and will, without doubt, demonstrate significant skill regression" and that it
would be "extremely harmful" to return him to Italy at this time. The Court
found that separating D.E. from the CABAS program, while it remained available
to him, would put him in an intolerable situation due to the grave risk of
deterioration of his condition and denial of needed rehabilitation.
Respondent testified that she and the children did not currently have legal
immigration status in the United States, as they overstayed their visas in April
of 2012. In October or November of 2012, Respondent applied for a visa for
herself and the children on the basis of the domestic abuse that she suffered.
Her application was currently pending.
The district court found that Petitioner and Respondent intended to move to the
United States as a family for a period of two to three years, during which time
medical and rehabilitative treatments would be pursued for D.E., and also agreed
that it was possible that the move would be made permanent at the end of the
three-year period, circumstances permitting. Notwithstanding the plan to sell
their house in Italy to fund the restaurant investment, there was no agreement
to abandon the family's ties to Italy.
The court concluded that the children's habitual residence for Hague Convention
purposes at the time of their retention in the United States was Italy. The
Court took judicial notice of Title IV, Italian Civil Code of Law, Art. 316
("[a] child is subject to the authority of its parents until majority ... or
emancipation. The authority is exercised by both parents by mutual agreement")
and Title IV, Italian Civil Code of Law, Art. 144 ("[t]he spouses agree between
them the pattern of family life and fix the residence of the family according to
the requirements of both and to those prevailing for the family. Each of the
spouses has the authority to implement the agreed pattern"). Thus, Petitioner
had rights of custody under Italian law in April 2012, when the retention of the
children in the United States began. It also found that the Petitioner had been
exercising his rights and the he had established a prima facie case for return.
Nevertheless, the district court found by clear and convincing evidence that,
because D.E. was severely autistic, he faced a grave risk of harm if he had to
return to Italy, as the return would severely disrupt and impair his
development. It observed that in this Circuit, courts have emphasized the
severity of the psychological or physical harm required under the "grave risk of
harm" affirmative defense. See, e.g., Reyes Olguin v. Cruz Santana, No. 03 Civ.
6299 JG, 2005 WL 67094, at *6 (E.D.N.Y. Jan.13, 2005) ("[t]here is a spectrum of
harms a repatriated child may suffer. 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; at the other end of the spectrum are those situations in which the
child faces a real risk of being hurt, physically or psychologically, as a
result of repatriation' "). Because "returning a child is likely to present
adjustment concerns in almost every Convention case," the Court should examine
whether the child is likely to "suffer
long-term permanent harm if returned." In re Lozano, 809 F.Supp.2d at 222.
D.E. had the fine motor skills of a child half his age when he first came to the
United States. He was enrolled in a premier ABA school program and had made
significant developmental progress. Dr. Fiorile had proferred credibly that, if
D.E. left the Stony Point CABAS program even temporarily, he would face a
significant regression in his skills and that without such an intensive,
structured program, D.E. would not develop the cognitive, language, social,
emotional and independent living skills that he was likely to acquire through
such a program. Petitioner did not present any testimony controverting Dr.
Fiorile's considered assessment. Respondent had also proven that there was a
significant lack of resources in Italy for treating autism as compared to those
available in the United States. D.E. had multiple doctors in Italy who were
involved in his care including, Dr. Nicola Antonucci and Dr. Claudia Lerz.
However, he met with most of these doctors infrequently and none of them were
able to provide the intensive behavioral instruction that D.E. had been able to
receive in the United States. There was no indication that D.E. could ever
obtain the treatment and resulting positive prognosis that he has gained through
the CABAS program were he to return to Italy. The Court found that the predicted
deterioration in D.E.'s cognition, social skills and self-care if D.E. was
separated from the CABAS program, to which Dr. Fiorile had testified,
constituted psychological and physical harm sufficient to establish the "grave
risk of harm" affirmative defense. As even a brief separation from the CABAS
program would likely lead to a severe regression in D.E.'s progress, Respondent
had shown by clear and convincing evidence that returning D.E. to Italy and
separating him from the CABAS program posed a grave risk of harm to D.E. and
would place him in an intolerable situation.
The testimony at trial established by clear and convincing evidence that E.E.
and D.E. had a loving and close relationship and enjoyed spending time in each
other's company. It was also established that E.E. helped his mother in caring
for his brother. The district court observed that Courts in this Circuit have
frequently declined to separate siblings, finding that the sibling relationship
should be protected even if only one of the children can properly raise an
affirmative defense under the Hague Convention. See, e.g., Blondin, 78 F.Supp.2d
283, 291 (S.D.N.Y. Jan.12, 2000) (declining to separate children because
"children's relationships with their siblings are the type of intimate human
relationships that are afforded a substantial measure of sanctuary from
unjustified interference by the state") (quoting Aristotle P. v. Johnson, 721
F.Supp. 1002, 1005-06 (N.D.Ill.1989)); Broca v. Giron, No. 11 CV 5818(SJ)(JMA),
2013 WL 867276, at *9 (E.D.N.Y. Mar. 7, 2013) (deciding not to "further fracture
the family unit" and separate the siblings). D.E. would face a significant
disruption of his routine and general happiness were his older brother to return
to Italy. Such a separation was also likely to harm E.E., since the one parent
with whom he had a good relationship would have to remain in the United States
to care for D.E. Having found that D.E. would face a grave risk of harm if
separated from the CABAS program and repatriated to Italy, the Court would not
separate the two brothers. Therefore, the Petition was denied as to both
children, without prejudice to renewal if D.E. was no longer able to participate
in the CABAS program and if the Italian court system issued a final order
requiring the return of the children to Italy.
Thursday, May 2, 2013
Filipczak v Filipczak, 2013 WL 692694 (2d Cir 2013) [Poland] [Federal & State Judicial Remedies] [Well Settled]
In Filipczak v Filipczak, 2013 WL 692694 (2d Cir
2013)(not selected for publication in the Federal Reporter) Respondent Yashmun
Filipczak, the Mother, appealed from the judgment of the United States District
Court for the Southern District of New York finding that Poland was the country
of habitual residence for the Mother's two minor children and ordering the
children's return to Poland. Petitioner Wojciech Filipczak, the Father, brought
the case against her under the International Child Abduction Remedies Act (“ICARA”).
At trial, the Mother did not contest that she had wrongfully removed the
children from Poland, but argued that she qualified for two exceptions to the
Hague Convention's repatriation requirement: (i) that the children would face
“grave risk” to their well being in Poland, Hague Convention, art. 13(b), and
(ii) that the children were “well settled” in the United States, Hague
Convention art. 12. In a decision and order dated December 23, 2011, the United
States District Court for the Southern District of New York rejected the
Mother's contentions and ordered that the children be returned to Poland.
The Second Circuit Court of Appeals affirmed. While the Mother was represented by counsel in the District Court, she appears pro se on appeal. Thus, it construed her submissions to the Court liberally and interpret them to raise the strongest arguments they suggest. See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994).
The Mother raised several arguments on appeal, all of which were without merit. First, she claimed that her removal of the children from Poland was not wrongful because she was forced to leave Poland due to the expiration of her visa. The Mother, however, failed to raise this argument before the trial court. Because the Mother gave no justification for her failure to make this argument below, the Court would not consider it for the first time on appeal. Bogle–Assegai v. Connecticut, 470 F.3d 498, 504 (2d Cir.2006) (“[I]t is a well-established general rule that an appellate court will not consider an issue raised for the first time on appeal.”). She also alleged a number of defects in the evidence presented to the District Court, including failure to authenticate e-mails between her mother and the Father, bias on the part of the guardian ad litem, and failure to conduct cross-examination of several witnesses. These arguments were also presented for the first time on appeal, without any explanation as to why they were not raised below, and the Court refused to consider them for the same reasons.
Finally, the Mother argued that the children had stronger ties to the United States than they did to Poland, and therefore should be permitted to remain. It held that this misconstrues Article 12. The standard under that provision does not call for determining in which location the child is relatively better settled, but rather for determining whether the child has become so settled in a new environment that repatriation would be against the child's best interest. Blondin, 238 F.3d at 164. The Mother made no such showing.
The Second Circuit Court of Appeals affirmed. While the Mother was represented by counsel in the District Court, she appears pro se on appeal. Thus, it construed her submissions to the Court liberally and interpret them to raise the strongest arguments they suggest. See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994).
The Mother raised several arguments on appeal, all of which were without merit. First, she claimed that her removal of the children from Poland was not wrongful because she was forced to leave Poland due to the expiration of her visa. The Mother, however, failed to raise this argument before the trial court. Because the Mother gave no justification for her failure to make this argument below, the Court would not consider it for the first time on appeal. Bogle–Assegai v. Connecticut, 470 F.3d 498, 504 (2d Cir.2006) (“[I]t is a well-established general rule that an appellate court will not consider an issue raised for the first time on appeal.”). She also alleged a number of defects in the evidence presented to the District Court, including failure to authenticate e-mails between her mother and the Father, bias on the part of the guardian ad litem, and failure to conduct cross-examination of several witnesses. These arguments were also presented for the first time on appeal, without any explanation as to why they were not raised below, and the Court refused to consider them for the same reasons.
Finally, the Mother argued that the children had stronger ties to the United States than they did to Poland, and therefore should be permitted to remain. It held that this misconstrues Article 12. The standard under that provision does not call for determining in which location the child is relatively better settled, but rather for determining whether the child has become so settled in a new environment that repatriation would be against the child's best interest. Blondin, 238 F.3d at 164. The Mother made no such showing.
Patrick v. Rivera-Lopez, --- F.3d ----, 2013 WL 388053 (C.A.1 (Puerto Rico)) [Puerto Rico] [Federal & State Judicial Remedies - Bond] [Rights of Custody]
In Patrick v. Rivera-Lopez, --- F.3d ----, 2013 WL 388053
(C.A.1 (Puerto Rico)) Lisandro Patrick appealed a decision of the United States
District Court for the District of Puerto Rico dismissing his petition for the
return of his child under the Hague Convention and the district court's order
that he post a bond to proceed with the case. In March 2012, Rivera absconded to
Puerto Rico with her children. When Patrick discovered that Rivera had taken her
children to Puerto Rico and did not intend to return to the United Kingdom, he
filed a petition for the return of L.N.R. in the United States District Court
for the District of Puerto Rico under the Hague Convention. The petition alleged
that Rivera wrongfully removed L.N.R. from her habitual residence, the United
Kingdom. Patrick did not petition for the return of Rivera's other child because
he was not the child's biological father. On the eve of trial, October 11,
Rivera moved to dismiss Patrick's petition under Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim upon which relief can be granted. Rivera
argued in part that removal of a child is "wrongful" under the Hague Convention
only if "it is in breach of [a person's] rights of custody," Hague Convention
art. 3, and that Patrick had no rights of custody under the Convention because
he was not registered as L.N.R.'s father in her birth certificate. The
magistrate judge granted Rivera's motion to dismiss on the ground that Patrick
never presented his affidavit of paternity to Puerto Rico's Vital Statistics
Registry. Patrick v. Rivera-Lopez, 2012 WL 5462677 (D.P.R. Nov. 8, 2012).
The Court of Appeals observed that Patrick had to allege facts sufficient to show that he has "rights of custody... under the law of the State in which the child was habitually resident immediately before the removal or retention." Hague Convention art. 3. Patrick alleged in his petition that L.N.R.'s habitual residence was the United Kingdom. For purposes of this appeal, Rivera did not dispute this allegation. Therefore, Patrick's rights of custody were determined with respect to United Kingdom law. "Where a child's father and mother were married to each other at the time of his birth, they shall each have parental responsibility for the child." Children Act, (1989) § 2(1). On its face, this provision would appear not to apply to Patrick and Rivera, who married after L.N.R.'s birth, but "[r]eferences in this Act to a child whose father and mother were ... married to each other at the time of his birth must be read with section 1 of the Family Law Reform Act 1987 (which extends their meaning)."Id. § 2(3). That section states that "references to a person whose father and mother were married to each other at the time of his birth include ... references to any person to whom subsection (3) below applies." Family Law Reform Act, (1987) § 1(2). Subsection (3) applies to "any person who ... is a legitimated person within the meaning of section 10 of [the Legitimacy Act 1976]."Id. § 1(3). That section defines "legitimated person" to include "a person legitimated or recognised as legitimated ... under section 2 or 3 above," Legitimacy Act, (1976) s 10(1), and Section 3 of the Legitimacy Act 1976 provides that where the parents of an illegitimate person marry one another and the father of the illegitimate person is not at the time of the marriage domiciled in England and Wales but is domiciled in a country by the law of which the illegitimate person became legitimated by virtue of such subsequent marriage, that person, if living, shall in England and Wales be recognised as having been so legitimated from the date of the marriage. ( The National Archives of the United Kingdom made these statutes available at http://www.legislation.gov.uk/) Based on these statutes, it concluded (as did the district court) that L.N.R.'s removal was wrongful under the Hague Convention if L.N.R. became legitimated under Puerto Rico law by virtue of Patrick's marriage to Rivera. With his petition, Patrick filed a letter from the International Child Abduction and Contact Unit (a unit of Ministry of Justice's Official Solicitor) stating that "[t]he parents are married to each other and therefore both have parental responsibility for [L.N.R.], pursuant to Section 2(1) of the Children Act of 1989.
The Court of Appeals noted that tor more than a century, Puerto Rico law has provided that a child born under the same circumstances as L.N.R. is legitimated by the subsequent marriage of her parents. When Spain ceded Puerto Rico to the United States in 1898, the Spanish Civil Code provided that "natural children," defined as children born out of wedlock to parents who could have married each other at the time of conception, may be legitimated by the subsequent marriage of their parents. Puerto Rico's Civil Codes of 1902 and 1911 contained similar laws. Puerto Rico's current law was the same, except that it no longer requires that a child's parents be eligible to marry each other at the time of the child's conception. Despite the clear language of the statute, the district court held that Patrick's marriage to Rivera did not legitimate L.N.R. under Puerto Rico law because Patrick did not present his affidavit of paternity to the Vital Statistics Registry of Puerto Rico. The court stated that a child born out of wedlock "will not be automatically considered as begotten by" a man and woman who later marry, unless they register the child as theirs.” Patrick, 2012 WL 5462677, at *6 (citing Ramos v. Rosario, 67 P.R.R. 641 (1947)). Neither opinion on which the district court relied adequately supported its decision. The 1911 Civil Code was superseded by laws that expand the range of ways in which a parent can acknowledge a child and the Supreme Court of Puerto Rico has held that under current law, "[t]he father, or in his default, his heirs, may acknowledge in any way their children, expressly or impliedly, regardless of the dates or circumstances of their births and for all legal purposes." Because Patrick needed only to acknowledge L.N.R. "in any way," his affidavit acknowledging L.N.R. as his daughter sufficed to establish that he was her father. Because Patrick was L.N.R.'s father, his marriage to Rivera legitimated L.N.R. Patrick alleged in his petition that he was the father of L.N.R ., Rivera admitted this allegation in her answer, and no one else challenged Patrick's paternity. It held that Patrick's marriage to Rivera legitimated L.N.R. under Puerto Rico law. As a result, Patrick had "parental responsibility" for L.N.R. under United Kingdom law, which meant that he had "rights of custody" under the Hague Convention. The district court erred when it dismissed Patrick's petition on the grounds that he did not have rights of custody.
The district court ordered Patrick to pay a $10,000 bond, stating that "[t]his bond will serve not only as a non-resident bond, but shall also respond to any damages that Respondent may incur should Petitioner not prevail on the merits." Patrick moved to vacate the bond requirement, arguing that the Hague Convention explicitly prohibits a court from requiring such a bond: "No security, bond or deposit, however described, shall be required to guarantee the payment of costs and expenses in the judicial or administrative proceedings falling within the scope of this Convention." Hague Convention art. 22. The district court continued to assert the authority to impose a bond but reduced the amount of the bond to $500. In a minute order dated June 28, 2012, the district court relied on three opinions that refer to instances in which a court imposed a bond in a Hague Convention case: Whiting v. Krassner, 391 F.3d 540 (3d Cir.2004); Bekier v. Bekier, 248 F.3d 1051 (11th Cir.2001); and Lops v. Lops, 140 F.3d 927 (11th Cir.1998).
The Court of Appeals held that the Hague Convention deprived the district court of authority to impose a bond on Patrick. It saw no distinction between a bond imposed to "respond to damages that Respondent may incur should Petitioner not prevail on the merits" and the bond that the Convention prohibits. The opinions on which the district court relied refer only in passing to a district court's imposition of a bond, without saying whether ordering the bond was within the court's power. Whiting, 391 F.3d at 545; Bekier, 248 F.3d at 1053 & n. 2; Lops, 140 F.3d at 948, 964. These opinions offered no reason to ignore the text of the Convention. It reversed the dismissal of Patrick's petition, vacated the order requiring that Patrick post a bond, and remanded the case to the district court with instructions to conduct a trial as soon as possible.
The Court of Appeals observed that Patrick had to allege facts sufficient to show that he has "rights of custody... under the law of the State in which the child was habitually resident immediately before the removal or retention." Hague Convention art. 3. Patrick alleged in his petition that L.N.R.'s habitual residence was the United Kingdom. For purposes of this appeal, Rivera did not dispute this allegation. Therefore, Patrick's rights of custody were determined with respect to United Kingdom law. "Where a child's father and mother were married to each other at the time of his birth, they shall each have parental responsibility for the child." Children Act, (1989) § 2(1). On its face, this provision would appear not to apply to Patrick and Rivera, who married after L.N.R.'s birth, but "[r]eferences in this Act to a child whose father and mother were ... married to each other at the time of his birth must be read with section 1 of the Family Law Reform Act 1987 (which extends their meaning)."Id. § 2(3). That section states that "references to a person whose father and mother were married to each other at the time of his birth include ... references to any person to whom subsection (3) below applies." Family Law Reform Act, (1987) § 1(2). Subsection (3) applies to "any person who ... is a legitimated person within the meaning of section 10 of [the Legitimacy Act 1976]."Id. § 1(3). That section defines "legitimated person" to include "a person legitimated or recognised as legitimated ... under section 2 or 3 above," Legitimacy Act, (1976) s 10(1), and Section 3 of the Legitimacy Act 1976 provides that where the parents of an illegitimate person marry one another and the father of the illegitimate person is not at the time of the marriage domiciled in England and Wales but is domiciled in a country by the law of which the illegitimate person became legitimated by virtue of such subsequent marriage, that person, if living, shall in England and Wales be recognised as having been so legitimated from the date of the marriage. ( The National Archives of the United Kingdom made these statutes available at http://www.legislation.gov.uk/) Based on these statutes, it concluded (as did the district court) that L.N.R.'s removal was wrongful under the Hague Convention if L.N.R. became legitimated under Puerto Rico law by virtue of Patrick's marriage to Rivera. With his petition, Patrick filed a letter from the International Child Abduction and Contact Unit (a unit of Ministry of Justice's Official Solicitor) stating that "[t]he parents are married to each other and therefore both have parental responsibility for [L.N.R.], pursuant to Section 2(1) of the Children Act of 1989.
The Court of Appeals noted that tor more than a century, Puerto Rico law has provided that a child born under the same circumstances as L.N.R. is legitimated by the subsequent marriage of her parents. When Spain ceded Puerto Rico to the United States in 1898, the Spanish Civil Code provided that "natural children," defined as children born out of wedlock to parents who could have married each other at the time of conception, may be legitimated by the subsequent marriage of their parents. Puerto Rico's Civil Codes of 1902 and 1911 contained similar laws. Puerto Rico's current law was the same, except that it no longer requires that a child's parents be eligible to marry each other at the time of the child's conception. Despite the clear language of the statute, the district court held that Patrick's marriage to Rivera did not legitimate L.N.R. under Puerto Rico law because Patrick did not present his affidavit of paternity to the Vital Statistics Registry of Puerto Rico. The court stated that a child born out of wedlock "will not be automatically considered as begotten by" a man and woman who later marry, unless they register the child as theirs.” Patrick, 2012 WL 5462677, at *6 (citing Ramos v. Rosario, 67 P.R.R. 641 (1947)). Neither opinion on which the district court relied adequately supported its decision. The 1911 Civil Code was superseded by laws that expand the range of ways in which a parent can acknowledge a child and the Supreme Court of Puerto Rico has held that under current law, "[t]he father, or in his default, his heirs, may acknowledge in any way their children, expressly or impliedly, regardless of the dates or circumstances of their births and for all legal purposes." Because Patrick needed only to acknowledge L.N.R. "in any way," his affidavit acknowledging L.N.R. as his daughter sufficed to establish that he was her father. Because Patrick was L.N.R.'s father, his marriage to Rivera legitimated L.N.R. Patrick alleged in his petition that he was the father of L.N.R ., Rivera admitted this allegation in her answer, and no one else challenged Patrick's paternity. It held that Patrick's marriage to Rivera legitimated L.N.R. under Puerto Rico law. As a result, Patrick had "parental responsibility" for L.N.R. under United Kingdom law, which meant that he had "rights of custody" under the Hague Convention. The district court erred when it dismissed Patrick's petition on the grounds that he did not have rights of custody.
The district court ordered Patrick to pay a $10,000 bond, stating that "[t]his bond will serve not only as a non-resident bond, but shall also respond to any damages that Respondent may incur should Petitioner not prevail on the merits." Patrick moved to vacate the bond requirement, arguing that the Hague Convention explicitly prohibits a court from requiring such a bond: "No security, bond or deposit, however described, shall be required to guarantee the payment of costs and expenses in the judicial or administrative proceedings falling within the scope of this Convention." Hague Convention art. 22. The district court continued to assert the authority to impose a bond but reduced the amount of the bond to $500. In a minute order dated June 28, 2012, the district court relied on three opinions that refer to instances in which a court imposed a bond in a Hague Convention case: Whiting v. Krassner, 391 F.3d 540 (3d Cir.2004); Bekier v. Bekier, 248 F.3d 1051 (11th Cir.2001); and Lops v. Lops, 140 F.3d 927 (11th Cir.1998).
The Court of Appeals held that the Hague Convention deprived the district court of authority to impose a bond on Patrick. It saw no distinction between a bond imposed to "respond to damages that Respondent may incur should Petitioner not prevail on the merits" and the bond that the Convention prohibits. The opinions on which the district court relied refer only in passing to a district court's imposition of a bond, without saying whether ordering the bond was within the court's power. Whiting, 391 F.3d at 545; Bekier, 248 F.3d at 1053 & n. 2; Lops, 140 F.3d at 948, 964. These opinions offered no reason to ignore the text of the Convention. It reversed the dismissal of Patrick's petition, vacated the order requiring that Patrick post a bond, and remanded the case to the district court with instructions to conduct a trial as soon as possible.
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
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
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