Matter of LL. Children (New York 2000)New York County Family Court, 22 May 2000
11 International Abduction (USA 2000)
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Judge Jurow
MATTER OF LL. CHILDREN
001 Petitioner father, a Dutch citizen, seeks the return
of his two children and their half-sister to the Netherlands
pursuant to the Hague Convention on the Civil Aspects of
International Child Abduction (1980), T.I.A.S. No. 11670,
1343 U.N.T.S. 89 (the “Convention”), as implemented in the
United States by the International Child Abduction Remedies
Act, 42 U.S.C. 11601 et seq. He alleges that the children
were wrongfully removed by the respondent mother from their
habitual residence, the Netherlands, and brought to the
United States.
002 Respondent mother concedes that her removal of her
three children from the Netherlands to New York City in
August, 1999, without notice to or the consent of
petitioner, was wrongful within the meaning of the
Convention, but opposes the return of the children, invoking
the so-called “grave risk” exception in the Convention. She
claims that the children are suffering from psychiatric
disorders caused by domestic violence and excessive corporal
punishment by the father, which disorders would be
exacerbated by a return to the Netherlands. She also claims
that the oldest child, age fifteen, has a right to choose to
remain in the United States and should not be separated from
her half-siblings to whom she is “bonded”.
003 This is a troublesome case which requires the Court to
balance the dual objectives of returning wrongfully abducted
children and protecting children from grave risk of harm.
The case tests the parameters of the “grave risk” exception,
a developing and important area of international treaty law
with relatively few precedents.
I. The Trial Record
004 An extensive hearing was held at which both parents
testified as well as two clinicians who interviewed the
children. The Court interviewed the oldest child in camera.
In addition, an array of documents was considered by the
Court including medical records, documents from the
Netherlands, and a formal written communication from the
Dutch government.
005 The mother was born in the Dominican Republic and
emigrated to the Netherlands in 1989. She met the father, a
Dutch citizen, in 1989 at a discotheque in The Hague.
Channelle was born in December, 1990. Oscar was born in
September, 1992. Although these two children were born in
the The Hague, Jennifer was born in the Dominican Republic
to a different father. Jennifer was cared for by her
grandmother until, at age nine, she emigrated to the
Netherlands in 1995 and later became a Dutch citizen. The
mother became a Dutch citizen in 1998, apparently retaining
Dominican Republic citizenship as well.
006 Petitioner and respondent lived together in Reiswijk
(a short distance from The Hague) until they separated in
February, 1998. They never married. Legal documents from
Holland confirm, and it is undisputed, that petitioner and
respondent are joint custodians of the three children.
007 Following their parents’ separation, the children
resided with their mother. The two younger children spent
weekends and some weekday afternoons with their father;
Jennifer saw her stepfather occasionally but primarily when
he picked up and dropped off the other children. In August,
1999 (and after having spent July on vacation in Spain with
the two younger children) the father learned that the
children were not in school. Unbeknownst to him, the mother
in late August, 1999 took the children with her to reside in
New York City. After a search, the father in December, 1999
discovered the location of the children and filed the
instant application for their return in January, 2000.
008 The mother testified that she emigrated to the
Netherlands in 1989 to get a “better life”. She said she did
cleaning work at the petitioner’s discotheques during the 8
or 9 years they lived together. (In the 1990s the father was
in business in The Hague as the owner of two discotheques
and a bar.) She characterized her relationship with the
petitioner as acrimonious, with constant quarreling. She
further testified to domestic violence, claiming petitioner
hit her “forty times” including more than once in the face
with his fists (although never in the presence of the
children); that he once dislocated her arm; that she went to
the hospital at various times; that he threatened to kill
her; that he once put a gun to her head and threatened her.
(Regarding the latter, she stated she went to the police but
claimed an officer told her that “just looking at a pistol
that is put to your head doesn’t mean that they’re going to
shoot you with it”.) She also said: that Oscar told her his
father hit him with a stick, that she went to the police,
and was told it was normal discipline; Jennifer reported to
her that she was kicked by her step-father, causing
bruising; Channelle complained she was hit during visits
with her father.
009 The mother also testified that the father was
hospitalized for 5 months in 1998 for depression; that she
saw white powder on the desk at his discotheque; and that he
told her he took LSD. The mother denied any psychiatric
history, acknowledging only taking tranxene (a valium-like
drug) to sleep. On one occasion, after a test revealed a
possible malignancy, she sought treatment in the Dominican
Republic because she did not “trust the doctors” in Holland.
010 Finally, the mother testified that she consulted with
attorneys in Holland who told her she would never get
custody of the children in that country; she concluded that
the courts in the United States were preferable to those in
Holland or the Dominican Republic.
011 The father testified and denied any corporal
punishment of the children (except for an occasional slap on
the hand or backside); any domestic violence, saying he
never hit the mother; any threats to the mother; ever
displaying a weapon; any psychiatric hospitalization; any
cocaine or illicit drug involvement. He told a caseworker
that when he met the respondent she was a prostitute and
that he got her to stop. (The mother denied any
prostitution.) He described the mother as depressed and
quarrelsome, a voodoo practitioner (he provided supporting
photographic exhibits), and “drugged up” to the point of
using Jennifer as a surrogate mother for the younger
children. He said he “rescued” Jennifer from the Dominican
Republic and personally brought her to Holland [an
undisputed fact], but that his good relationship with her
soured after he separated from the respondent. He described
Jennifer as having a close but domineering relationship with
her step-siblings. He attributed the childrens’ allegations
against him, their professed fear of him, and their desire
not to return to Holland, as a product of the mother’s
brainwashing and “America syndrome”, which he defined as
“the dream of every kid to come to the United States”,
something the mother reinforced with her children.
012 With respect to the mother’s psychiatric history, the
father provided documentation of a 1994 psychiatric
hospitalization of the mother, a 1995 psychiatric
consultation, and subsequent prescription of anti-depressive
medication (all denied by the mother). FN01 He also provided
a letter from the family physician attesting to the father’s
“caring impression” and absence of any signs of child
neglect. The letter also stated: “I know [the mother] as a
sympathetic but often emotional [sic] unstable woman who was
most of the time under psychiatric supervision and
medication.”
013 Pursuant to this Court’s order, the New York City
Administration for Children’s Services (ACS) evaluated the
children in conjunction with New York – Presbyterian
Hospital (NYPH). The children were interviewed by the ACS
caseworker; by Dr. Nicholas Cunnningham, a pediatrician at
NYPH and head of their Child Protection Committee; by Dr.
Estelle Paris a psychiatrist at NYPH; and also by Susan
Greenberg, the law guardian’s social worker. All
interviewers reported that all three children told them they
were fearful of their father; that their father threatened
to harm them if they disclosed to the mother that he hit
them; that their mother treated them well; and that they
wanted to be cared for by their mother.
014 Although describing all the children as in good
physical health, and the two younger children as cheerful,
Dr. Cunningham concluded that his interviews were suggestive
of excessive corporal punishment of the children by the
father and of spousal abuse of the mother by the father. He
recommended the children not be in the father’s custody but
be returned to the mother to whom they look for nurturance.
015 Ms. Greenberg testified that the two younger children
are very attached to Jennifer, and that all three want to be
together with their mother in the United States. She
characterized the children as suffering from anxiety, sleep
disturbance, concentration difficulties, and stress about
the uncertain outcome of the case, which raised a “concern”
that the children were suffering from posttraumatic stress
disorder. She thought the children might “regress” if
returned to the Netherlands, but that therapy and limited
contact with the father would reduce their stress on return.
Ms. Greenberg acknowledged that it was unusual for children
to report parental threats about disclosing corporal
punishment, since such threats usually occur in the context
of sex abuse (which was specifically denied by the
children).
016 Dr. Paris testified at some length. A recently
licensed physician, she had completed a residency in adult
psychiatry and was the child psychiatry resident on call the
night the children were brought to the NYPH emergency room.
She saw them that night and a second time for a follow-up.
She testified that all three children had posttraumatic
stress disorder (PTSD), which includes symptomotology such
as nightmares, intrusive thoughts, and inability to
concentrate. Channelle was also diagnosed as having a
dissociative disorder (suppressing the emotional content of
traumatic events) because she would “smile inappropriately”
when reporting certain events and would say, “This happened
but it didn’t bother me”. The cause of the PTSD was the
excessive corporal punishment and domestic violence and
overall chaotic discord in the home. Dr. Paris said she
believed the children would suffer psychiatric harm if
returned to Holland, that they would regress and suffer “any
number of illnesses” (e.g. depression; learning
disabilities; and developmental delays). With respect to
Channelle, Dr. Paris opined: “[S]he’s at risk for even, you
know, multiple personality disorder”. The doctor explained
that returning to the scene of the trauma (Holland) would
make the children feel helpless and unprotected, that is, in
“an enemy territory”, where, because “it’s his country [the
father] would have easier access to them” rather than “on
hallowed ground” in the United States where “they’re
physically surrounded by a body of water, which helps them
feel safer”. If they go back to Holland, “it’s like going
back to him, even if they’re not physically placed in the
same residence where he is or they don’t see him all the
time.” Therefore, it would also be difficult for the
children to make therapeutic progress in Holland.
017 On further examination, Dr. Paris conceded that what
she conducted was an emergency evaluation involving initial
diagnostic impressions of the children rather than an
in-depth, full evaluation of the family. She clarified that
her use of the diagnostic term PTSD was similar to that of
the diagnosis “generalized anxiety disorder” in terms of
symptomotology, except that the precipitating stressors
(familial violence) were known for the former. FN02 She
agreed that authentic cases of multiple personality disorder
are “extremely rare” and that the probability of ultimately
developing it is “small”, but that Channelle was still “at
risk” for being “that rare statistic.” She concluded by
saying, that the children were not currently in need of
hospitalization; that she could not “guarantee” the children
would develop serious mental illness or be hospitalized in
Holland if returned; that in sum the children are “at higher
risk than they would be if they stayed here”.
018 The Court interviewed the subject child Jennifer in
camera. She said her stepfather brought her to the
Netherlands from the Dominican Republic in 1995 but that
they soon “became enemies” because she did not like his
parental restrictions compared to the freedom she enjoyed in
Santo Domingo. She reported instances of excessive corporal
punishment by her stepfather, heard him threaten her mother,
including displaying a pistol on one occasion, and saw signs
that he physically abused the mother although she did not
witness it. Jennifer complained that the stepfather treated
her mother “like his servant” (a complaint also echoed to
Dr. Paris), assigning her menial cleaning work at his
discotheque. She said she thought her mother came to New
York with her children for a vacation, that she thought she
would go back to Holland, and that her mother never told her
why they were staying here. She said she did not want to
live in the Netherlands because “nobody hears me”, in
contrast to those “from Holland”, like her stepfather who
“has all the rights.” She asked not to be separated from her
half-siblings. She said she wanted to be with her mother and
would go wherever her mother went, including back to Holland
or to the Dominican Republic (where she missed her family
and friends). Jennifer’s demeanor during the interview was
often tearful but she was quite assertive at times,
particularly when contrasting the treatment of Dutch natives
with that of Dominicans.
019 The Court’s assessment of the above record is as
follows: In observing the testimony of the parents, each
testified forcefully, emotionally, and with apparent
sincerity. However, there is no way to reconcile the content
of their testimony standing alone, which was sharply
divergent. Other parts of the record suggest that neither
parent was completely candid with the Court. The Court had
the impression that significant aspects of the personal,
business, and family history may have been withheld by each
of the parties, either individually or collusively. Among
other things, the mother tried to conceal her history of
psychiatric difficulty and treatment and the father appeared
to be minimizing his physical aggression within the family.
With respect to the latter, the consistent reports of all
three subject children to the interviewers indicate it
highly likely that, notwithstanding the father’s denials, he
engaged in a pattern of excessive corporal punishment with
respect to all three children and domestic violence towards
their mother. The possibility remains that the mother and
Jennifer, clearly disaffected with and feeling like second
class citizens in Holland, and in an attempt to remain in
the United States, may have fabricated their portrait of the
father as abusive (and influenced the younger children to
similarly report), but that scenario is unlikely.
II. The Dutch Government Position FN03
020 In a formal written communication, during these
proceedings, to the court from the Ministry of Justice of
the Netherlands, the Ministry wrote:
021 The Dutch Child Protection Board will immediately
present a request to the Juvenile Court Magistrate in the
Dutch Family Court to get a family supervision order to
entrust the [“LL”] children provisional to a Guardianship-
organization, as soon as the children are returned to the
Netherlands.
022 In the meantime the children will be taken from the
airport by workers of the child Protection Board, who will
bring them immediately to a foster-home or foster-family,
without contact between them and the father or the mother of
the children.
023 The children will stay at the foster-home or
foster-family during the intensive investigation by the
Child Protection board concerning the allegations of abuse.
If the father or the mother of the children will be allowed
to visit them, it will only be under supervision of the
Child Protection Board. [Letter dated February 7, 2000, in
evidence.]
III. The Hague Convention
024 The objects of the Convention are: “(a) to secure the
prompt return of children wrongfully removed to or retained
in any contracting State; and (b) to ensure that rights of
custody and of access under the law of one Contracting State
are effectively respected in the other Contracting States.”
Convention Article 1. Children who are “wrongfully removed”
from the country where they were “habitually resident” prior
to the abduction “are to be promptly returned unless one of
the narrow exceptions set forth in the Convention applies”,
42 U.S.C. 11601(a)(4); Convention, Article 3 (emphasis
added) The basic purpose of the Convention is thus “… to
restore the pre-abduction status quo and to deter parents
from crossing borders in search of a more sympathetic
court”. Friedrich v. Friedrich, 78 F. 3d 1060, 1064 (6th
Cir. 1996). The Convention is jurisdictional in that “… a
court in the abducted-to nation has jurisdiction to decide
the merits of an abduction claim, but not the merits of the
underlying custody dispute.”; Friedrich, supra at 1063;
Convention, Article 19; 42 U.S.C. 11601(b)(4) The merits of
the custody dispute are intended to be dealt with by the
courts in the country of habitual residence.
025 Because the parties have stipulated that the subject
children were wrongfully removed from their habitual
residence (the Netherlands) within the meaning of the
Convention, they must be returned to Holland unless the
respondent mother can show that one of several exceptions
applies. FN04 The exceptions relevant to this case are:
there is a grave risk that [the child’s] return
would expose the child to physical or
psychological harm or otherwise place the child
in an intolerable situation. (Convention,
Article 13b); or
… 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.
(Convention, Article 13).
026 The respondent has the burden of proving the former
“grave risk” exception by clear and convincing evidence, and
the latter “age and maturity” exception by a preponderance
of the evidence. 42 U.S.C. 11063(e). Even if a court
determines that an exception has been established, the
Convention still gives the court the discretion to order the
return of the child if a return would further the aims of
the Convention. Friedrich, supra at 1067.
027 The most important interpretive principle with respect
to these defenses is the well-established view that they
must be interpreted narrowly. This principle is established
in federal law, see 42 U.S. C. 11601(a)(4), supra, and 51
Fed. Reg. 10494, 10509 (1986) (“… very narrowly, lest
their application undermine the express purposes of the
Convention — to effect the prompt return of abducted
children”.) All major commentators on the Convention
similarly agree on the requirement of strict interpretation.
For example, Elisa Perez-Vera, the official Hague Conference
reporter for the Convention whose explanatory report is
recognized as the official commentary on the Convention
wrote:
[The exceptions] are to be interpreted in a
restrictive fashion if the Convention is not to
become a dead letter. In fact, the Convention as
a whole rests upon the unanimous rejection of
this phenomenon of illegal child removals and
upon the conviction that the best way to combat
them at an international level is to refuse to
grant them legal recognition … . [T]he child’s
habitual residence [is] in principle best placed
to decide upon questions of custody and access.
As a result, a systematic invocation of the said
exceptions, substituting the forum chosen by the
abductor for that of the child’s residence,
would lead to the collapse of the whole
structure of the Convention … 11 E.
Perez-Vera, Explanatory Report Hague Conference
on Private International Law, in 3 Acts and
Documents of the Fourteenth Session 426 (1980)
(“Perez-Vera Report”), 34.
028 See also Silberman, Hague International Child
Abduction Convention: A Progress Report, Law & Contemp.
Problems, Vol. 57, No. 3 (1994) (“Perhaps the most important
aspect for success of the Convention will be the ability to
limit the uses of defenses … . [I]f certain contracting
states rely on the defenses to avoid return, the return
mechanism will be thwarted. International cooperation will
be frustrated, and parties will once again resort to
self-help”, at p. 233); Beaumont & McEleavy, The Hague
Convention on International Child Abduction (1999) (“… it
should be only in exceptional cases that a return order be
refused”, at p. 138).
029 Although dicta, impetus for a “restrictive reading” of
the grave harm exception was provided by the Sixth Circuit
in a widely cited passage in Friedrich, supra 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.
030 Notwithstanding the clear need to prevent the
exceptions from turning into an “escape route” (Silberman,
supra at 236), the drafters of the Convention, via the grave
risk exception, recognized “… the primary interest of any
person in not being exposed to physical or psychological
danger or being placed in an intolerable situation”.
Perez-Vera Report at 30. The State Department has
officially recognized one category of “grave risk”:
An example of an ‘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 a grave risk of psychological harm.
Fed. Reg., supra at 10510.
031 Although a review of the reported cases both in the
United States and internationally indicates that, in
general, courts have been “rigorous” in narrowly construing
the “grave risk” exception, some cases have presented
circumstances that have resulted in denials of return
applications on safety grounds. See generally cases reported
in Silberman and in Beaumont & McEleavy, supra. Clearly, the
most difficult cases have been those alleging domestic
violence and/or physical abuse as a basis for retention,
claims similar to those in the instant case. Several such
cases have recently been reported in the United States. The
most significant of these is the so-called “Blondin” series.
032 In Blondin v. Dubois, 19 F. Supp. 2d 123 (S.D.N.Y.
1998) (“Blondin I”) Judge Denny Chin found “grave risk” to
and denied the return of two children, ages 7 and 2, to
France from where their mother fled on a fact pattern
involving strong evidence the father repeatedly beat and
threatened the mother, often in front of the children,
causing the mother to flee to a series of battered women’s
shelters; frequently hit the older child; and one time
choked that child with an electrical cord. On appeal the
Second Circuit reversed and remanded the case back to the
District Court. See Blondin v. Dubois, 189 F.3d 240 (2nd
Cir. 1999.) (“Blondin” II).
033 The Second Circuit discussed the framework of the
convention, emphasizing at length the reasons and authority
(see above) for narrowly interpreting the return exceptions.
It noted that a court considering Hague Convention petitions
“should make every effort to honor simultaneously the
Convention’s commitments (1) to the return of wrongfully
abducted children to their home countries, for custody
adjudication by courts there with proper jurisdiction, and
(2) to safeguarding the children from “grave risk” of harm.
(emphasis added). Although noting that the trial record
supported a conclusion that the children would face a risk
of physical abuse if returned to the father’s custody,
ordinarily a basis for an Article 13(b) exception,
nonetheless because the Convention depends on the
“institutions of the abducted-to-state generally deferring
to the forum of the child’s home state” (id. at 248, citing
the Perez-Vera Report, supra at 1119) it is therefore
important that a court considering an exception under
Article 13(b) take into account any ameliorative measures by
the parents and by the authorities of the state having
jurisdiction over the question of custody that can reduce
whatever risk might otherwise be associated with a child’s
repatriation. In the exercise of comity that is the heart of
the Convention (an international agreement) …, we are
required to place our trust in the court of the home country
to issue whatever orders may be necessary to safeguard
children who come before it.” (Id. at 248).
034 The Court suggested that on remand the District Court
further develop its record and consider a “range of
remedies” to allow a safe return to France, pending further
custody proceedings in France, including a return “in the
temporary custody of some appropriate and suitable third
party, with adequate guarantees of child protection”. (Id.
at 249.) (The Convention requires a return to the country of
habitual residence, not to a particular individual.) The
Court also encouraged the District Court to make inquiries
of the French government concerning the availability of
ameliorative placement options in France.
035 On remand the District Court heard additional
testimony (not proffered at the original hearing) from a
child psychiatrist who diagnosed the children as continuing
to suffer from a posttraumatic stress disorder due to the
abusive situation in France, particularly the older child
who had nightmares, interrupted sleeping (symptoms
previously noted in the Blondin I opinion), eating
difficulties, and fearfulness. The Doctor stated that a
return to France under any conditions (whether cared for by
a third party or even by their mother) would expose the
children to a grave risk of psychological harm by removing
them from a secure environment to the scene of their
original trauma and uncertainty about their future, which
would harm their future development. Notwithstanding expert
testimony concerning the legal and social support services
and safeguards available to the mother and children upon a
return to France, Judge Chin agreed that any return “no
matter how carefully managed by the French courts” could not
protect the children from grave risk of further
psychological harm, even though the risk of physical abuse
could be so protected. Interestingly, at the close of his
opinion Judge Chin wrote that, in his view, the appellate
interpretations of “grave risk” in Article 13b are “unduly
narrow”, explicitly in Friedrich, supra, and implicitly by
the Second Circuit in Blondin II (by remanding the case
despite the Blondin I findings of serious abuse by the
father). Blondin v. Dubois, 98 Civ. 4274 (S.D.N.Y. 2000)
(Blondin III).
036 See also Rodriguez v. Rodriguez, 33 F. Supp. 2d 456
(U.S.D.C., D. Md. 1999) (finding grave risk involving severe
physical abuse of child and domestic violence, with
diagnosis of posttraumatic disorder, and citing Blondin I);
But see In re Walsh, 31 F. Supp. 2d 200 (U.S.D.C., D.Mass.
1998) (“deplorable” domestic violence, spanking/slapping of
children, “poisonous atmosphere”, and diagnosis of
posttraumatic stress disorder; but insufficient to
constitute grave risk so children ordered returned to
Ireland, with conditions [including separation from father
which will “mitigate” psychological harm].)
IV. Application of The Convention
037 Respondent’s argument is threefold: First, that the
oldest child Jennifer, at age 15, has a right to stay in the
United States pursuant to the Article 13 “age and maturity”
exception. Second, given Jennifer’s right to remain, the two
younger children, to whom she is closely bonded, have a
right to remain because it would be “intolerable” to split
up the children. Third, that the Article 13(b) “grave risk”
exception clearly has been proven with respect to all three
children. Respondent was joined by the child’s law guardian
in these arguments. FN05
038 The first two arguments are more easily addressed. The
Convention is inapplicable once a child attains the age of
16. Convention, Article 4. Although there may be differences
of opinion as to how old a child must be for a court to give
weight to its views about a return, in view of the age 16
“cutoff” it is obvious that the closer a child is to age 16,
absent unusual circumstances, the more controlling its views
will become, and case law reflects this point. As Perez-Vera
has noted, “… [I]t would be very difficult to accept that
a child of, for example, fifteen years of age should be
returned against its will “Perez-Vera Report, 30.
Accordingly, and also consistent with its in camera
interview, the Court finds that pursuant to Article 13,
Jennifer has attained an age and degree of maturity at which
it is appropriate to take into account her view that she
does not want to return to the Netherlands, and to give that
view virtually conclusive weight. Accordingly the Court will
not order her return to the Netherlands, although it
nonetheless has the discretion to do so.
039 If Jennifer chooses to remain in the United States
(or, alternatively, go to the Dominican Republic or
elsewhere) that is not automatically determinative of the
locale of her half siblings. For example, if the younger
children are returned to the Netherlands, Jennifer will have
a choice to make, or even a range of choices, and it will
become her choice whether or not there is a sibling split, a
decision that may be difficult for her but not
“intolerable”. FN06 That is, because Jennifer has the age
and maturity to decide not to return to the Netherlands, she
also has the age and maturity to decide to return, weighing
all the variables involved (including not just her ties to
her half-siblings, but also, for example, her ties to the
Dominican Republic where she has family and from which she
has always felt uprooted). As a practical matter, the “split
sibling” problem is likely to be resolved by Jennifer’s
clearly expressed intent at the in camera, regardless of
other factors, to remain with her mother and half siblings,
wherever they are located. See Hadjittofi v. Hadjittofi, No.
V-2008/9 (Fam. Ct., Monroe Cty., N.Y. 1996). FN07
040 As the “Blondin” cases, supra, aptly illustrate,
applying the “grave risk” exception to a record involving
domestic violence, excessive corporal punishment, and
claimed posttraumatic stress, is not an easy judicial task.
It involves, of necessity, an assessment of risk levels in
the context of furthering the aims of an important
international treaty.
041 Giving weight to the Second Circuit’s admonition in
Blondin II to avoid an “overly broad construction” in
considering the grant of Article 13(b) exception (supra at
246), and to see if “ameliorative measures” can be
implemented to reduce the risks of repatriation (supra at
246 and 248), this Court concludes that respondent has
failed to prove by clear and convincing evidence that a
return of the subject children would expose any one of them
to grave risk within the meaning of Convention Article
13(b). In this conclusion the Court reaches a different
result, on a record with some similarities, than did the
District Court in Blondin III.
042 The primary “ameliorative measure” is the clear
commitment of the Dutch government to institute an intensive
investigation of the abuse allegations within the auspices
of the Dutch judicial system, during which child protection
officials will oversee a foster care placement with
restricted parental access FN08. Such “safe harbor” type
arrangements have become an accepted method of facilitating
the return of abducted children when Article 13(b) “grave
risk” claims have been made. See Beaumont & McEleavy, supra
at pp. 157-172; Convention Article 7. Moreover, evidence was
presented and it is undisputed that the Netherlands has a
well-established child protection system, not dissimilar in
nature to those in most jurisdictions in the United States.
Implicit in a return to the country of habitual residence is
the concept that ordinarily it is the more convenient forum
to address the custody issues. See Perez-Vera Report ¶34,
supra. Thus, the Dutch child protective authorities have
better access to information and can develop a sounder and
more complete investigative record. Further, the Dutch
courts have a full array of dispositional alternatives upon
completion of a child protective investigation and
consideration of the merits of the underlying custody
dispute, including, but not limited, to a return of the
children to the mother, even with the option of residing in
the United States. See Friedrich, supra at 1068 (“And if
Germany really is a poor place for [the child] to grow up
… we can expect the German courts to recognize that and
award [the mother] custody in America. When we trust the
court system in the abducted-from country, the vast majority
of claims of harm – those that do not rise to the level of
gravity required by the Convention – evaporate.).
043 Although the Dutch government plan will certainly
ensure the childrens’ physical safety, the question remains
whether it will be sufficient to avoid grave risk of
psychological harm. The resolution of this issue turns on
the weight to be given the psychiatric testimony arguing
that a diagnosis of posttraumatic stress disorder creates
grave risk upon a return per se to the foreign jurisdiction.
Judge Chin in Blondin III found this type of testimony
conclusive of grave risk; on this record the Court finds
similar testimony less than persuasive.
044 A careful scrutiny of the testimony of the
psychiatrist, Dr. Paris (summarized above), leads to a
conclusion of risk but not grave risk. First, the actual
symptomotology described (sleep disturbances, intrusive
thoughts, concentration problems, and blunting of emotion)
are troublesome but not uniquely serious. This conclusion is
buttressed by the doctor’s acknowledgment that what she was
describing were symptoms essentially equivalent to a
generalized anxiety disorder. See Renovales v. Roosa, No.
91-0392232-S, 1991 Conn. Super. WL 204483 (Conn. Super. Ct.,
1991) Second, none of the children, despite having already
experienced trauma, had ever been previously psychiatrically
hospitalized or medicated, nor did they currently require
such treatment. Third, the doctor’s prognosis of future risk
on a return tended toward the hyperbolic, for example, her
odd claim that Channelle (because of a lack of emotional
display in the interview; a child another doctor
characterized as “cheerful”) had a high probability of
developing an admittedly very rare psychiatric disorder.
Fourth, Dr. Paris placed inordinate, almost metaphorical,
weight on the distance from Holland (“surrounded by [the
ocean]”) in protecting the children from psychological harm.
Yet, in the ordinary reality of child protection, children
are frequently removed from abusive or neglectful
situations, routinely to new caretakers in the same locale;
FN09 distant relocation is not the ordinary sine qua non of
child protection.
045 In short, the problem with most “posttraumatic stress”
claims of psychological harm in a Convention Article 13(b)
context is that the claim is too broad. Familial domestic
violence and excessive corporal punishment are not
infrequent, and are commonly accompanied by associated
psychological disturbances in the affected children. Were
all such claims to be routinely granted Article 13(b)
exception status – particularly when the country of habitual
residence is made aware of the claims and is willing to use
an established child protection apparatus to address them –
exception will begin to swallow the rule.
046 To be clear about what the Court is saying and is not
saying: The Court is not suggesting that there is no risk to
the children associated with a return. An exacerbation of
psychological disturbance, of unknown degree, may be
possible. But although the risk may even be considered
serious it does not appear warranted in this context to
label it “grave”. The distinction is important because, as
noted, “the person opposing the child’s return must show
that the risk to the child is grave, not merely serious”.
Fed. Reg., supra at 10510; “… [I]t is not merely a grave
risk of ‘any’ physical or psychological harm which should
satisfy the provision. The harm must be of a substantial or
weighty kind”. Brown v. Brown (Fam. Ct. Aust. No. SY9391,
1992). Nor is the Court trivializing acts of domestic
violence and excessive corporal punishment; all instances
are reprehensible and cannot be condoned. But the Convention
requires that distinctions be drawn in terms of severity of
risk, even in these regrettable contexts. Finally, a return
of the children to Holland is not to sacrifice them at the
altar of abstract internationalist doctrine. Rather,
pragmatically “[T]he careful and thorough fulfillment of our
treaty obligations stands not only to protect children
abducted to the United States, but also to protect American
children abducted to other nations — whose courts, under
the legal regime created by this treaty, are expected to
offer reciprocal protection”. Blondin II, supra at 242. Were
any of the numerous children in New York City who are
victims of the type of domestic violence/excessive corporal
punishment, and its related consequences, delineated in this
record, to be abducted to a foreign signatory of the
Convention, their return to the United States would be
similarly expected.
047 Accordingly, the petitions for return of the children
Channelle and Oscar are granted, subject to the conditions
detailed in the letter dated February 7, 2000 from the
Ministry of Justice of the Netherlands. The petition for the
return of the child Jennifer is denied.
048 It is further ordered that the New York City ACS
contact the government of the Netherlands Central Authority,
provide a copy of this Decision and order to them, and make
arrangements with the Central Authority for the orderly
return of Channelle and Oscar. If the respondent and the
child Jennifer choose to return to the Netherlands, ACS, in
consultation with the Netherlands Central Authority, shall
make every effort to facilitate their return as well, in a
manner consistent with the best interests of the subject
children.
So ordered.
———————————————————
NOTES:
(1) A psychiatrist who examined the mother during these
proceedings stated in his report (in evidence): “Ms. Santana
denies ever having psychiatric problems, hospitalizations,
prescription of psychotropic medication, psychotherapy,
psychiatric evaluations or any symptoms of depression,
anxiety, hallucinations, delusions, dissociation or any
other symptomology.”
Directly contradicting the mother’s denials to the
psychiatrist were the documentation of the 1994 psychiatric
hospitalization, which was for five weeks; the 1995 clinic
consultation record which involved substantial symptoms of
depression; and the later prescription of the
anti-depressant, Zoloft.
(2) In fact, the medical records indicate that after the
hospital interview Dr. Paris’ diagnosis of all three
children was “adjustment disorder with anxiety, rule out
PTSD secondary to physical abuse.” The mood of Jennifer and
Oscar was described as “euthymic” [normal; not depressed],
and that of Channelle as “hesitant”.
(3) Under the Convention, each signatory designates a
Central Authority (in the United States, the State
Department) to, inter alia “initiate or facilitate the
institution of judicial or administrative proceedings with a
view to obtaining the return of the child.” Convention,
Articles 6 and 7.
(4) The parties stipulated to other predicates triggering
the application of the Convention, to which both the United
States and the Netherlands are signatories.
(5) They also argued that the father was not actually
exercising his custody rights with respect to Jennifer at
the time of removal, a Convention Article 13 defense. The
factual record does not support this claim and
interpretation. See Friedrich, supra at 1064-1066.
(6) The Article 13 right to choose embodies a determination
that children of Jennifer’s age and maturity can indeed
tolerate and resolve the conflicts inherent in such a
decision.
(7) The law guardian further argues that if Jennifer chooses
not to return to the Netherlands but Channelle and Oscar do
return, that the two younger children would undergo an
“intolerable” separation from their half-sibling. In the
unlikely event that Jennifer made such a choice involving
possible separation, this argument would inordinately expand
the definition of “intolerable” to give the 15 year old the
power to determine the outcome of the entire litigation, a
result unlikely to be intended by the Convention.
(8) This is similar to the children’s current status in that
they have been in foster care during the pendency of these
proceedings while ACS completed its investigation and the
divergent cross allegations were preliminarily addressed at
this hearing.
(9) In the year ending 1998, 5,804 child protective
proceedings were filed in New York City; approximately 75
percent of the children were removed from their home (most
to locations within the City.) Report of the Chief
Administrator of the Courts (Family Court Statistics).