USA – CO – ROBINSON – 1997 (Return denied) (Art. 13b, Grave Risk) RODRIGUES v RODRIGUES The Mother takes the children to the United States. The father seeks the return of the children to Venezuela. The court, after hearing testimony and interviewing the son, age 12 and a half, rules that the removal from Venezuela was wrongful but declined to return the three children because of what felt was a grave risk to the mother and children.
Bill Hilton’s Comment: In my opinion, the trial court should have ordered the return of the children to Venezuela using a “safe harbor order” or “undertakings”, e.g., that the children will be returned conditioned upon an action being raised in the family court in Venezuela and preliminary orders issued providing for the protection of the children and the abused spouse”.
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Rodriguez v Rodriguez (D.Md. 1999)33 F.Supp.2d 456
7 International Abduction [USA 1999]
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In re The Application of:
Luis Alejandro Rodriguez, Petitioner
v.
Marisabel Ramos Valery Rodriguez, Respondent
No Civ. A. WMN-98-3946
United STates District Court, D. Maryland
26 Jan 1999
<* page 457>
MEMORANDUM
NICKERSON, District Judge.
001 Petitioner Luis Alejandro Rodriguez brings this
action under the provisions of the Hague Convention on the
Civil Aspects of International Child Abduction FN01 and the
International Child Abduction Remedies Act. FN02
Petitioner seeks the return to Venezuela of his three minor
children. Respondent Marisabel Ramos Valery Rodriguez,
Petitioner’s wife and the mother of the three children,
opposes their return.
I. FACTUAL AND PROCEDURAL BACKGROUND
002 Petitioner was married to Respondent May 2, 1986.
Their son, Jorge. was born on September 14, 1986; their
first daughter, Alejandra, was born on July 8, 1992; and
their second daughter, Marisabel was born on February 14,
1998. Immediately prior to the time that Respondent brought
the children to the United States, Petitioner, Respondent,
and the three children resided in Respondent’s childhood
home with her father.
003 On the morning of May 29, 1998, Respondent picked up
Jorge and Alejandra at their respective schools and, with
Marisabel and Respondent’s sister, traveled to the United
States. FN03 Since arriving in the United States.
Respondent and the children have resided <* page 458> for
the majority of the time with Respondent’s mother in
Germantown, Maryland. The oldest two children have been
enrolled in and are attending public schools in Maryland.
004 Petitioner filed this action on December 2, 1998. On
that same date, the Court issued an order prohibiting the
removal of the children from this jurisdiction and issuing a
Warrant in Lieu of Writ of Habeas Corpus as to Respondent.
In response to the Warrant, Respondent appeared before this
Court, without counsel, on December 4, 1998 and surrendered
her and the children’s travel documents. A hearing on the
merits of the Petition was scheduled for December 18, 1998.
After Respondent obtained counsel, the Court continued the
hearing date to January 4, 1999 to provide Respondent’s
counsel the opportunity to file a written response to the.
Petition and to prepare for the hearing.
005 On January 4, 1999, after opening argument, the Court
heard testimony from Petitioner and from Michael Marco
Benaloza an attorney proffered as an expert in Venezuelan
family law. The Court then adjourned to Chambers to allow
counsel and the Court to ask questions of Jorge, the oldest
child. This interview with Jorge took place on the record,
but out of the presence of both parents.
006 The hearing continued on January 13, 1999, the
earliest date upon which both counsel were available. On
that date, the Court heard testimony from Respondent,
Respondent’s sister, Respondent’s mother, and finally Dr.
Katherine Killene, a licensed psychologist. After closing
arguments, the Court indicated that it would hold the matter
sub curia.
II. HAGUE CONVENTION ON THE CIVIL ASPECTS OF CHILD
ABDUCTION
007 The Hague Convention establishes legal rights and
procedures for the prompt return of children who have been
wrongfully removed or retained, as well as for securing the
exercise of visitation rights. Children who are wrongfully
removed or retained within the meaning of the Convention are
to be promptly returned unless one of the narrow exceptions
set forth in the Convention applies.
The Convention provides a sound treaty
framework to help resolve the problem
international abduction and retention children
and will deter such wrongful removals and
retentions.
42 U.S.C. 11601(a)(4) In 1988 Congress enacted the
International Child Abduction Remedies Act [“ICARA”] to
“establish procedures for the implementation of the [Hague]
Convention in the United States.” Id. at 116O1(b)(1). This
Act is codified at 42 U.S.C. 11601 – 11610.
008 Under the Hague Convention, courts are vested with
the authority to determine whether a child has been
wrongfully removed from his or her habitual residence and,
if so, to order the return of the child to the Petitioner
and the habitual residence. In determining whether a. child
should be returned the court is not determining the, custody
rights of the parents. Instead, this determination will be
made by the proper court authorities of the country where
the child habitually resides.
009 Under ICARA the Petitioner bears the initial burden
of proving by a preponderance of the evidence “that the
child has been wrongfully removed or retained within the
meaning of the Convention.” 42 U.S.C. 11601(e)(1)(A).”
Article 3 of the Hague Convention states that
[t]he removal or the retention of a child is
to be considered wrongful where-
(a)
it is in breach of rights of custody
attributed to a person, an institution, other
body, either jointly or alone, under the law
of the State in which the child was habitually
resident immediately before th removal or
retention; and
(b)
at the time of removal or retention those
rights were actually exercised, either jointly
or alone, or would have been exercised but for
the removal or retention/
The rights of custody mentioned in sub
paragraph a above may arise in particular by
operation of law or by reason of judicial or
administrative decision, or by reason of an
agreement having legal effect under the law of
the State.
<* page 459>
010 Hague International Child Abduction, Convention;
Text. and. Legal Analysis, 51 Fed. Reg. 10,498 (1986). In
other words, a wrongful removal in this case has occurred if
Respondent brought the child to the United States in
violation of Petitioner’s custody rights as defined by
Venezuelan law.
011 Once the Petitioner has satisfied this burden, the
children must be returned to Venezuela unless the Respondent
can. demonstrate,
(A) by clear and, convincing evidence that one
of the exceptions set forth in Article 13(b)
or 20 of the Convention applies; or (B) by a
preponderance of the evidence that any other
exception set forth in Article 12 or 13 of the
Convention applies.
012 42 U:S.C. 11603(e)(2)(A) & (B). The exceptions set
forth in Articles 13(b) and 20 that Respondent must
establish by clear and convincing evidence are:
(13b) there is a grave risk that his or her
return would expose the child to physical or
psychological harm or otherwise place the
child in an intolerable situation.
(20) The return of the child may be refused if
this would not be permitted by the fundamental
principles of the requested State relating to
its protection of human rights and fundamental
freedoms.
013 The exceptions set forth in Articles 12 and 13 that
must be established by a preponderance of the evidence are:
(12) Where the judicial or administrative
authority in the requested State has reason to
believe that the child has been taken to
another State, it may stay the proceedings or
dismiss the application for return of the
child.
(13a) the person, institution, or other body
having the care of the person of the child was
not actually exercising the custody rights at
the time of removal or retention or had
consented to or acquiesced in the removal or
retention.
(13) The judicial or administrative authority
may also refuse to order the return of the
child if it finds that the child objects to
being returned and has attained an age and
degree of maturity at which it is appropriate
to take account of its views.
014 These exceptions are to be narrowly interpreted. As
the Sixth’ Circuit has cautioned,
[the exceptions] are not a basis for avoiding return of a
child merely because an American court believes it can
better or more quickly resolve a dispute. In fact a federal.
court retains and should use when appropriate, the
discretion to return a child, despite the existence of a
defense, if return would further the aims of the Convention.
Friedrich v Friedrich (6th Cir 1996) 78 Fed.3d 1060, 1069
III DISCUSSION
015 The Court has already held for reasons stated on the
record at the close of Petitioners case that the children
had been wrongfully removed from Venezuela. The Court is
left with the determination as to whether any of the narrow
exceptions of the Convention apply in this instance. Based
upon evidence of a history of Petitioner’s physical and
psychological abuse of his son Jorge and the Respondent,
Respondent argues that return of any of the children to
Venezuela would expose them to a grave risk of physical or
psychological harm or otherwise place the children in an
intolerable situation. Respondent also argues that Jorge’s
expressed desire not to live with his father is an
additional basis for denial of the petition. After
carefully considering all of the evidence presented the
Court concludes for the reasons discussed herein that
Respondent has met the substantial burden of proof necessary
to warrant denial of the petition.
016 Jorge testified that his father first began to hit
him when he was six years old. This first described beating
occurred after Jorge had been told three times to leave a
friends house where he was playing. Upon returning home
Petitioner struck Jorge with a one inch belt about the legs
back and buttocks. The force of the blows and resulting
welts and bruises were such. that Jorge was caused to miss a
week of school.
017 Jorge testified about another incident when he was in
third grade and lost a watch that his father had given him
as a “trophy” <* page 460> for graduation. When his father
discovered that the watch was missing his father kicked him
at least twice in the back and hit him with his fists while
they were leaving the school building. His father also.
told him at the time that if he had given him bruises Jorge
must net tell anyone.
018 Jorge testified that in addition to physically
assaulting him about twice a month his father routinely
demeaned him and called him by bad words on a daily basis.
019 Jorge told the Court that his father frequently hit
his mother. He recounted that his father would choke his
mother and on one occasion pushed her down the stairs when
she was pregnant. Jorge also testified to the fear that he
experienced during the physical altercations between his
parents which was exacerbated by the explosive nature of his
fathers temper and the inability to anticipate the extent to
which it would be manifested.
020 Jorge presented himself as uniquely mature and
articulate for his age and experience. He was also
surprisingly forthright and objective in his responses. It
did not appear that Jorge’s judgment was clouded by access
to a perceptibly more enjoyable life style in the United
States. Nor was there any indication that he had been
coached as to what to say. Despite his fear of his father
Jorge also freely expressed his affection. “He is my
father, I have to love him, but he does bad things.”
021 Respondents testimony corroborated much of Jorge’s.
She described finding Jorge after the first beating “naked
with blows all over his body from his head to his toes.”
Although she made a report to the police after this
incident she withdrew it after Respondent apologized and
promised it would never happen again. Nonetheless,
Petitioner continued to abuse Jorge “many times” punching
him with his fists kicking him hitting him with a belt and
scratching his face.
022 Respondent also testified as to Petitioner’s
psychological abuse of Jorge. Petitioner would frequently
belittle Jorge with debasing names. He also demeaned
Respondent by telling Jorge that his mother slept with other
men and that she had killed Jorge’s brother. FN04
023 Officials at Jorge’s school had learned of some of
the incidents of physical abuse and in fact a teacher had
observed Petitioner kicking Jorge during the watch incident.
Petitioner was asked to come to the school on at least one
occasion to speak to the school psychologist about the abuse
of Jorge.
024 Respondent also described her own abuse at the hands
of her husband. She testified that Petitioner would hit her
once or twice a month for as long as they have been together
He would choke her, put a pillow over her face and hold it
there until she became “desperate”, strike her with a closed
fist and stomp on her. He once cut her lip with a cup
leaving a scar. and on another occasion broke her nose.
025 Respondent also recounted that both her husband and
her father kept loaded handguns in the house and would
frequently display them after they had been drinking. On one
occasion the two men argued and fired the guns at one
another while inside the house. Her husband would become
drunk about twice a week. Respondent once found a packet of
white powder in the pocket of Petitioner’s clothing which.
Petitioner told her was cocaine.
026 According to Respondent the middle child, Alejandra,
observed the physical abuse of both Jorge and Respondent.
Although Petitioner never hit Alejandra, she was always
afraid of misbehaving because she saw what happened to her
brother.
027 The testimony of Respondent’s sister and mother is
consistent in the portrayal of Petitioner. Respondent’s
mother describes arriving at the Petitioner’s and
Respondent’s home and finding Respondent on the floor crying
and saying “he is hitting me again.” After this particular
incident Respondent and her mother went to 3 or 4 different
police stations to seek help only to be told that the police
would not become involved in <* page 461> a domestic
dispute. Respondent’s sister testified, inter alia, that
because of her assistance in Respondent’s flight from
Venezuela, Petitioner had telephoned her and threatened to
kill her. “I will find you and I will kill you — don’t
forget you have a daughter.” FN05
028 Finally Dr. Killene testified describing her
interviews with Respondent Jorge and Alejandra and
presenting her conclusion as to the impact that returning to
Venezuela would have on the children. Based on her expertise
as a psychologist with considerable experience in abuse
cases Dr. Killene concluded without reservation that the
return of the children to Venezuela would expose them to a
grave risk of psychological and/or physical harm and would.
subject them to an intolerable situation.
029 Dr. Killene opined that both Jorge and Alejandra as
well as their mother suffer from Post Traumatic Stress
Disorder [PTSD] as a result of Petitioner’s conduct. PTSD,
she explained is a psychiatric illness which develops
following exposure to a particularly traumatic event either
as a victim or a witness. Dr. Killene reported that while in
Venezuela Jorge would experience stomach aches and sleep
disorders because he did not know when to expect the next
upheaval. Alejandra, while not directly physically abused
herself, witnessed the abuse of both her mother and her
brother. Dr. Killene explained that witnessing the abuse of
another can be more emotionally traumatic than being the
abused. Dr. Killene described Alejandra as having been
exposed to “enormous and insidious” trauma. When her
brother or mother would be hit Alejandra would “cover her
ears and eyes so she wouldn’t have to cry as much.”
030 Both children reported having bad dreams which Dr.
Killene believes are related to their stress disorder.
Alejandro reports having dreams that her mother is killed.
Dr. Killene concludes that the children’s only hope of
recovery from PTSD is to be placed in a secure and safe
environment. Returning the children to Venezuela, even if
it did not result in the children’s physical abuse at the
hands of their father, would result in psychological trauma
because of the children’s fear of physical harm, a fear well
grounded in their experience.
031 There is nothing in the record to contradict Dr.
Killene’s diagnosis or opinion. Petitioner presented no
expert witness of his own. Furthermore his own testimony
served, perhaps more than any of the testimony given in the
proceedings, to heighten the Courts concern for the safety
of the children should they be returned to Venezuela.
032 Throughout his testimony, Petitioner was evasive
argumentative, and, at times self-contradictory. Petitioner
unequivocally denied ever having hit Jorge or even having
used corporal punishment on Jorge. Given the other
testimony in this proceeding the Court finds Petitioner’s
testimony to lack credibility.
033 Petitioner also denied that the psychologist at
Jorge’s school ever spoke to him about physically abusing
Jorge and at the same time expressed utter contempt for the
entire profession of psychology. Through his demeanor in
the courtroom, Petitioner appeared to express this same
distrust and contempt for psychologists as Dr. Killene
described the emotional trauma experienced by his children.
034 Petitioners deportment in the courtroom and his
complete denial of any culpability in this matter leaves
little doubt that he would make no effort to alter the
destructive manner in which he interacts with his family. In
fact, given his visible antagonism to the testimony given in
this proceeding and apparent disdain toward the concept of
psychological <* page 462> harm it would appear that the
risk to his wife and children has increased exponentially as
a result of these proceedings.
035 The Court notes that while the exceptions to the
Convention are to be construed narrowly, the instant case is
closely analogous to one of the types of situations that the
Unites States Department of State identified as clearly
within the “grave risk/intolerable situation” exception:
An example of in “intolerable situation” is
one in which a custodial parent sexually
abuses the child. If the other parent removes
or retains the child to safeguard it against
further victimization and the abusive parent
then petitions for the child’s return under
the Convention, the court may deny the
petition. Such action would protect the child
from being returned to an “intolerable
situation” and subjected to grave risk of
psychological harm.
036 Friedrich 78 F.3d at 1069 (quoting Pubic Notice 957,
51 FR 10494, 10610 (March 26 1986)). While the State
Department’s illustration refers to sexual abuse of the
child and not physical abuse as we have here, this Court
sees no reason to conclude that being physically abused with
the frequency and severity as that experienced by Jorge is
any more tolerable See In re Blondin v Dubois 19 F.Supp.2d
123 (S.D.N.Y.1998) (finding “grave risk” and denying
petition for return under circumstances very similar to
those in this action). FN06
037 For the reasons stated the Court finds that
Respondent has shown by clear and convincing evidence that
returning the children to Venezuela wouLd expose them to
both physical and psychological harm and would place them in
an intolerable situation. FN07
038 Accordingly the petition for the return of the
children will be denied.
Footnote
———————–
1. 1343 U.N.T.S. 49, 91-2 C.T.I.A. 1231 (Hague 1980)
2. 42 U.S.C. 11601 et seq.
3. Prior to that date, Respondent had obtained travel
visas for, herself and her three children, without
Petitioner’s knowledge.
4. This latter accusation is reference to the Abortion
of the couple’s first child just prior to their
marriage.
5. Respondent’s sister also offered two documents that
she recently received from Venezuela. One was a
report from the psychologist at Jorge’s school, Dr.
Philipe, detailing the incident over the lost watch
and Dr. Philipe’s meeting with Petitioner thereafter.
The other document was an affidavit from a 1991 court
proceeding in which Respondent sought permission to
travel with Jorge outside of Venezuela. The affiant
appears to have been a neighbor of Respondent who
testified as to the abuse of Jorge. These documents
corroborate the testimony of Respondent and Jorge.
There are sufficient evidentiary concerns about these
documents, however, that the Court will give them no
weight The Court finds Jorge’s and Respondent’s
testimony sufficiently trustworthy that no additional
corroboration is required
6. Although the Court need not reach the issue, the
Court also finds that Jorge’s expressed desire to
remain in the United States would be sufficient
grounds to deny the Petition at least as to Jorge
under the exception in section 13.
7. Little evidence was submitted by either side as to
the youngest child Marisabel. Marisabel was just
three months old at the time she was brought to the
United States. She is only eleven months old at this
time in response to a question from the Court,
however, Petitioner’s counsel conceded that any
splitting up of the family would be emotionally
detrimental for all of the children. This would be
particularly true for Marisabel. Therefore, given
that the Court finds thAt Jorge and Alejandra cannot
be returned to Venezuela without exposing them to a
grave risk of harm, the Court will deny the petition
as to Marisabel as well.
—————————–
Comment by Wm M Hilton, CFLS
The Court, in making its decision, preliminarily says the
right words, that the “. . . exceptions are to be narrowly
interpreted . . . ”
The Court then finds an exception under Art. 13(b) and, in
footnote 6, the further exception that the older child
demonstrated sufficient age and maturity in stating that he
did not wish to return to Venezuela.
Looking at the Art. 13(b) exception first, one should start
with the fundamental principal that the trial Federal
District Court court must presume that the Venezuelan courts
are no less concerned than the Federal District Court with
the safety and welfare of children who are the subjects of
custody disputes. Friedrich v Friedrich (6th Cir. 1996) 78
F.3d 1060, 1068; Archambault v Archambault (1990) 407 Mass.
559 [555 N.E.2d 201, 207-208]; Matter of R.L.S. (Okl.App. 4
Div 1994) 879 P.2d 1258, 1263; In re Joseph D. (Cal.App. 4
Dist. 1 Div. 1993) 19 Cal.App.4th 678, 692..
The requested court should also consider the statement of
the Australian court when addressing the issue as to whether
or not the requesting court could offer protection for a
party caught up in a domestic violence matter:
“As his Honour pointed out, New Zealand has a system of
family law and provides legal protection to persons in fear
of violence which is similar to the system in Australia. It
would be presumptuous and offensive in the extreme, for a
court in this country to conclude that the wife and the
children are not capable of being protected by the New
Zealand Courts or that relevant New Zealand authorities
would not enforce protection orders which are made by the
Courts.”
Marriage of Murray and Tam, Director of Family Services
(ACT) (1993) 16 Fam LR 982
Lastly one then turns to the language of the court in
Friedrich v Friedrich (6th Cir. 1996) 78 F.3d 1060 at 1069:
“[W]e believe that a grave risk of harm for the purposes of
the Convention can exist in only two situations. First,
there is a grave risk of harm when return of the child puts
the child in imminent danger prior to the resolution of the
custody dispute– e.g., returning the child to a zone of
war, famine, or disease. Second, there is a grave risk of
harm in cases of serious abuse or neglect, or extraordinary
emotional dependence, when the court in the country of
habitual residence, for whatever reason, may be incapable or
unwilling to give the child adequate protection.”
The Court does state, in is decision, that efforts had been
made by the abused spouse to involve the Venezuelan Police
but with no success. The decision does not state what
efforts were made by the abused spouse to involve the courts
in Venezuela.
One thing is certain: The vast majority of the evidence as
to the pathology of this family was located in Venezuela.
With the above in mind the trial court, in my opinion,
should have ordered the return of the children to Venezuela
using a “safe harbor order” or “undertakings”, e.g., that
the children will be returned conditioned upon an action
being raised in the family court in Venezuela and
preliminary orders issued providing for the protection of
the children and the abused spouse.
Turning, briefly, to Jorge, then 12 years and 6 months of
age. Having him testify In Camera was an appropriate step
to take, particularly since it allowed the court to asses
his “age and maturity” in a direct and practical way. This
certainly gave the court the proper basis for determining
that his objections were well founded.
Nonetheless such a finding does not mandate, as the court
observed, that the child not be returned, only that it is
changed to a discretionary call.
With, as noted, the bulk of the evidence in Venezuela, the
purpose of The Convention would have been better served by a
return of the children to Venezuela with the proper safe
guards.