In Saavedera v Montoya, 2023 WL 2910654 (E.D. N.Y.,2023)
Respondent brought M.P.J. to the United States
in September 2020 and has not returned to Colombia with the child since. Respondent conceded that she wrongfully
removed the child from Colombia and has retained him in the United States, in
violation of Petitioner’s parental rights. She opposed M.P.J.’s return,
however, on the ground that the child would face a grave risk of harm if he
were returned to Colombia. The district court granted the petition.
The Court found that Petitioner and Respondent met in Bogota,
Colombia in about 2011, when Petitioner was eighteen years old and Respondent
was forty-four. When the parties met, Respondent was working as a dancer and
sex worker at a “strip club” in Bogota. Petitioner, who was married at the
time, was a civil engineer. Shortly after the start of their relationship,
Respondent moved back to her hometown of Medellin, where Petitioner provided
her with an apartment and covered other living expenses. She described this as
one of his “conditions” for their relationship. Petitioner continued to
reside primarily in Bogota. During these first few years of their relationship,
between 2011 and 2013, Petitioner engaged in what the Court can only
characterize as antisocial (and likely illegal) behavior. Respondent asserted,
and Petitioner did not deny, that he would frequently bring her to “strip
clubs,” “brothels,” and “sex clubs” where he would engage in sexual acts with
sex workers in front of Respondent. During these
visits to sex clubs, Petitioner would often become physically and verbally
abusive toward Respondent., Respondent asserted that Petitioner “would get
drunk” and then “start[ ] to treat me awful[,] saying things like if I
remembered where he got me from and that I was a worthless whore and a bitch.”
Petitioner would then “grab[ ] me by the neck and start[ ] cho[king] me,” and
he “often bit me to the point of leaving marks and causing me extreme pain and
discomfort.... Sometimes he would grab me by the arms so hard he would leave
bruises all over.” Respondent testified that when Petitioner became drunk, “he
would treat me very badly,” and it was “his bad habit to bite me frequently and
choke me.” Respondent also asserted that
the two had “fights” and “altercations” at their Medellin apartment, which on
“several occasions ... [got] so heated that the neighbors would call the
police.” Respondent did not provide specific dates for these incidents, but
testified that they occurred between 2011 and 2013. She also testified that
fights and arguments happened frequently during this period: roughly every
week. In his written testimony, Petitioner denied ever being “abusive or
violent, physically or psychologically, toward Respondent. When asked by his
counsel during the hearing about Respondent’s allegations of abuse, however,
Petitioner admitted to using physical force against Respondent on two specific
instances. Based on the parties’ testimony and evidence submitted at the
hearing, the Court found Respondent’s assertions of Petitioner’s physical and
verbal abuse during the early years of their relationship to be credible.
Respondent also testified that Petitioner exerted “tremendous
control” over her, including by monitoring her physical whereabouts and social
interactions. In approximately 2013, Petitioner and Respondent began living
together in Bogota. Petitioner paid the rent for their shared residence and
funded Respondent’s educational expenses at a local university, and he also
provided her with a car. According to Respondent, he controlled her movements,
allowing her to leave only to attend her university classes, and he did not
permit her to work. Respondent testified that Petitioner “had absolute control”
over her, and she “had no social life.”
M.P.J. was born in August 2014. According to Respondent, after
M.P.J.’s birth, Petitioner turned “aggressive and abusive” when she informed
him that she would no longer “accompany him back to the brothels. Petitioner
would also call Respondent derogatory names, telling her she was “worthless”
and a “prostitute,” “whore,” and “bitch.”. Respondent did not testify to any
specific physical altercations during this period at the hearing, and
Petitioner denied that any incidents occurred after M.P.J. was born. Respondent also testified that to manipulate
and control her, Petitioner “always” threatened to reveal her past involvement
in sex work and drugs to her family and others.
This “blackmail,” which began in 2013, became “even scarier” after
M.P.J. was born. According to Respondent, Petitioner also used his ability to
withhold consent for M.P.J. to travel with her as another means of control.
Colombian law requires the non-traveling parent — here, Petitioner — to provide
formal written consent for a child to travel outside of the country. Respondent testified that,
after her family moved to New York in 2014, it took “begging [Petitioner] for
almost 2 years” for him to allow M.P.J. to travel to the United States to see
them.
In or around early 2018, Respondent broke off the relationship,
and Petitioner moved out to a separate residence. The parties shared custody
according to a consistent schedule: M.P.J. primarily lived with Respondent.
Every two weeks, Petitioner would pick up M.P.J. on Saturday in the early
afternoon and drop him off with Respondent on the following day (Sunday) in the
evening. The parties also equally shared “vacation periods for the child.”
During this period, Petitioner continued to support Respondent and M.P.J.
financially. Between 2018 and 2020, moreover, Respondent traveled outside
Colombia on numerous occasions, often leaving M.P.J. with Petitioner for days
or weeks at a time. In September 2020, Respondent traveled with M.P.J. to the
United States. Respondent and M.P.J. did not return to Colombia in October as
scheduled. Respondent also became engaged to Mr. Portela, and the two were
married in early December 2020. In January 2021, Respondent’s relationship with
Portela deteriorated.
Petitioner testified that, at this time, Respondent was refusing
to reveal M.P.J.’s whereabouts, and the ICBF, working with the U.S. Department
of State, still had not located M.P.J.. Petitioner testified he put together a google website to convey the
risks that he believed M.P.J. was facing and to appeal to others for help in locating
him. While the webpage contained some details about the Petitioner’s efforts to
return M.P.J., the lion’s share of the content relates to Respondent’s past
drug use and involvement with sex work, as well as her then-ongoing situation
with Portela. The content further suggested that Respondent had committed
various crimes and moral wrongs, including immigration fraud and human
trafficking.
The parties
stipulated and agreed that Petitioner has established his prima facie
case under the Hague Convention. Because Petitioner had established his prima
facie case of wrongful retention, the child must be returned to Colombia
unless Respondent can establish that one of the Hague Convention’s affirmative
defenses applies.
Respondent invoked only Article 13’s “grave risk of harm”
exception. As relevant here, a grave risk of harm exists only “in cases of
serious abuse or neglect” of the child, “when the court in the country of
habitual residence, for whatever reason, may be incapable or unwilling to give
the child adequate protection.” This inquiry is “fact-intensive,” requiring
courts to consider “a wide range of conduct, including manipulative or
alienating behavior, physical or psychological abuse, spousal abuse, [and] the
petitioner’s general pattern of or propensity for violence.” Cruvinel v. Cruvinel, No. 19-CV-4237, 2022 WL 757955, at
*6 (E.D.N.Y. Jan. 10, 2022). In every case, however, “[t]he potential harm
to the child must be severe, and the level of risk and danger required
to trigger this exception has consistently been held to be very high.” Souratgar, 720 F.3d at 103 . The
grave risk exception “is to be interpreted narrowly, lest it swallow the rule In re Lozano, 809 F. Supp. 2d 197, 221 (S.D.N.Y.
2011). Evidence that repatriation would expose the child to abuse at
the petitioner’s hands goes directly to the grave risk of harm that Article
13(b) seeks to preclude. Courts have found such risk of harm where the
“petitioning parent ha[s] actually abused, threatened to abuse, or inspired
fear [of abuse] in the children in question.” Ermini v. Vittori, 758 F.3d 153, 164–65 (2d Cir. 2014) (grave
risk of harm where petitioner had “a propensity for violence and physical
abuse,” including a “habit of striking the children,” causing them fear); see,
e.g., Blondin, 189 F.3d at 243, 247 (grave
risk of harm where petitioner beat his partner and daughter, and on one
occasion tied a cord around his daughter’s neck and threatened to kill both of
them).
Respondent asserted that “Petitioner has used physical force on
the child on multiple occasions, and on at least one occasion left bruises on
the child.” The record reflected only one specific incident of physical force
in which Petitioner “slapped” M.P.J. when he was “still in diapers” because the
child had “acted out.”. While not in the room during the incident itself,
Respondent testified that afterwards, she saw M.P.J. “crying” and further
observed “color” and a “hand mark” on his rear. The court noted that case law
makes clear that this lone occurrence is insufficient to show that M.P.J. faces
a grave risk of physical harm from Petitioner. “Sporadic or isolated incidents
of physical discipline directed at the child” do not rise to the level of grave
risk. Souratgar, 720 F. 3d at 104. Isolated
incidents of abuse that occurred “years ago” and did not require medical
treatment similarly fail to suggest a present grave risk of harm. Broca v. Giron, No. 11-CV-5818, 2013 WL 867276, at
*5 (E.D.N.Y. Mar. 7, 2013) (finding no grave risk despite testimony that
father hit child on three occasions — including with a broomstick and belt —
but more than seven years prior), aff’d, 530 F. App’x 46 (2d Cir. 2013). Petitioner’s treatment of M.P.J. here can fairly
be characterized as “disciplinary in nature.” See Velozny ex rel. R.V. v. Velozny, 550 F. Supp. 3d 4, 21 (S.D.N.Y.
2021), aff’d, No. 21-1993-CV, 2021 WL 5567265 (2d
Cir. Nov. 29, 2021).
Likewise, Respondent had not shown that M.P.J. facesdgrave risk of
direct psychological harm from Petitioner. Respondent’s assertion that M.P.J.
faces a risk of harm from Petitioner was undermined by her own testimony that,
after their separation in 2018, she left her son with Petitioner for days or
even weeks at a time while she traveled outside of Colombia. Based on this
record, Respondent had not shown by clear and convincing evidence that M.P.J.
faces a grave risk of harm from his father.
Also unsuccessful was Respondent’s primary argument: that Petitioner’s
physical and psychological abuse toward her presents a grave risk of
harm to M.P.J. To establish her Article 13(b) defense, Respondent must
demonstrate by clear and convincing evidence — a “heavy burden” — that M.P.J.
faces such a grave risk resulting from Petitioner’s abuse. See In re Filipczak, 838 F. Supp. 2d 174, 181 (S.D.N.Y.
2011), aff’d, 513 F. App’x 16 (2d Cir. 2013).. Proof of
spousal abuse, however, is insufficient to satisfy the Article 13(b) exception
absent evidence that it would present an “intolerably grave risk to the
child,” such as “unavoidable psychological harm.” Souratgar, 720 F.3d at 104 (emphasis
added). This inquiry focuses on “how a small child would perceive and be
affected by [any partner] abuse” and whether and how it would harm him. See Grano v. Martin, 443 F. Supp. 3d 510, 542–43
(S.D.N.Y.), aff’d, 821 F. App’x 26 (2d Cir. 2020); see
also Ermini, 758 F.3d at 164. For this
reason, “witnessing the abuse of [one’s] mother is enough to establish the
applicability of the defense” when such incidents are sufficiently frequent or
severe. See Mohacsi v. Rippa, 346 F. Supp. 3d 295, 322 (E.D.N.Y.
2018), aff’d sub nom. In re Matter of NIR, 797 F. App’x 23 (2d Cir. 2019); Davies, 717 F. App’x at 49
The Court pointed out that Souratgar is instructive, if not
controlling, on this point. In that case, the Second Circuit affirmed the order
directing the child’s return, despite crediting the district court’s findings
that the petitioner abused the respondent, including by “shouting and offensive
name-calling, and [in] several incidents of physical abuse in which he kicked,
slapped, grabbed, and hit” her.. Even against this “backdrop of domestic
strife,” the respondent failed to establish a grave risk of harm because “there
[was] nothing in the record beyond speculation that [the child] would suffer
unavoidable psychological harm.” Id. at 104. Instead, the child loved both
parents, and “never saw or heard either parent hit the other or try to hurt the
other parent.”
Similarly, in Broca, the district court concluded that the
“record [was] replete with evidence” of “physical and psychological incidents
of abuse” against respondent, finding as many as fifty incidents of physical
violence that included “hitting, shoving and punching [her] in the face.” 2013 WL 867276, at *1, *5.
Nevertheless, the respondent in that case failed to establish a grave risk of
harm because there was “little to suggest” that the petitioner’s abuse of the
respondent extended to their children, and there was “no evidence” that the
children suffered “any psychiatric infirmity” as a result of his behavior.
Respondent did not demonstrate, by clear and convincing evidence,
that Petitioner’s abuse towards her exposes M.P.J. to a current or future grave
risk of harm. Despite presenting credible evidence of physical and
psychological abuse, she failed to demonstrate how such abuse would create a
grave risk of present or future harm to M.P.J. Respondent failed to satisfy her
high burden under Article 13(b).
Petitioner engaged in abusive conduct towards Respondent,
particularly between 2011 and 2013, including several incidents where he choked
and bit her and called her offensive names. There was no evidence in the record
indicating whether or how M.P.J. was affected by these incidents. Respondent testified that M.P.J. never saw
Petitioner’s abusive conduct or her reaction to it, with possible exceptions
when he was a baby and therefore would not remember. She presented no evidence
regarding the psychological impact such abuse would have on a child who is not
old enough to recall or comprehend it. See In re Filipczak, 838 F. Supp. 2d at 180 (finding
no grave risk, even though the child had witnessed one incident of spousal
abuse, because she was “roughly two years old” and “had no recollection” of the
episode). Thus, “noticeably absent is any evidence that these events took place
in front of the [child] ... or that they have had any impact upon the [child].”
See Velozny, 550 F. Supp. 3d at 19. Without
more, the Court cannot conclude, by clear and convincing evidence, that the
abuse Respondent endured would present a grave risk of psychological harm to
M.P.J. See Souratgar, 720 F.3d at 105.
Respondent asserted that she was a victim of Petitioner’s
psychological abuse and coercive control, enduring repeated threats to reveal
information about her past and to take M.P.J. away from her. Even fully
crediting this testimony, it does not support a finding that M.P.J. faces an
intolerably grave risk upon his return. Respondent’s lack of testimony
regarding recent abuse further weighed against a finding of grave risk.
Respondent testified primarily to incidents of physical abuse between 2011 and
2013, before M.P.J. was born in 2014. There was no testimony regarding physical
or verbal abuse during this post-separation period, despite both parties living
in Colombia
The
parties’ years-long separation, together with evidence that they had
established a working custody arrangement for M.P.J., one they apparently
followed without any substantial incident, therefore suggested fewer
opportunities for future strife between the two and a correspondingly lower
risk of any resulting harm to M.P.J. See, e.g., Eidem v. Eidem, 382 F. Supp. 3d 285, 293 (S.D.N.Y.) (noting
that because the parties had divorced and would not be living together, “the
likelihood of future physical [altercations] between them [was] remote”),
aff’d, 796 F. App’x 27 (2d Cir. 2019); Souratgar v. Fair, No. 12-CV-7797, 2012 WL 6700214, at
*11 (S.D.N.Y. Dec. 26, 2012) (noting, in response to
respondent’s argument that the child would “bear witness to petitioner’s
abuse,” that “there is no credible evidence that petitioner and respondent will
ever cohabit again”). Under these circumstances, “domestic violence allegations
between the Mother and Father prior to their [separation] are not [as]
probative to whether the Child is at a grave risk” now. In re R.V.B., 29 F. Supp. 3d at 258. For
similar reasons, the record did not establish, with sufficient probability,
that Petitioner would resume his abusive behavior toward Respondent herself, if
she and M.P.J. were to return to Colombia, so as to pose a grave risk to M.P.J.
The facts presented to the Court fell short of establishing a
grave risk of harm to M.P.J. by clear and convincing evidence. Respondent failed
to meet the high bar that the Article 13(b) exception demands. The Petition was
granted,
