UNITED STATES - FEDERAL JURISDICTION
United States District Court, W.D. Kentucky, Paducah Division
Thomas B. Russell, Senior District Judge
UNITED STATES OF AMERICA
21 January 2015
Habitual Residence - Art. 3 | Grave Risk - Art. 13(1)(b)
42 U.S.C. § 11601, the International Child Abduction Remedies Act; Article 335, Turkish Civil Code.
Jaffee v. Redmond, 518 U.S. 1, 9-10, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996); Simon v. Cook, 261 Fed.Appx. 873, 878 (6th Cir. 2008); Maday v. Public Libraries of Saginaw,480 F.3d 815, 821 (6th Cir. 2007); March v. Levine,249 F.3d 462, 465 (6th Cir.2001); Friedrich v. Friedrich, 78 F.3d 1060, 1063-64 (6th Cir.1996) ("Friedrich II"); Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir.1993) ("Friedrich I") ; Simcox v. Simcox, 511 F.3d 594, 604 (6th Cir.2007) ; Karkkainen v. Kovalchuk, 445 F.3d 280, 292 (3d Cir.2006); Jenkins v. Jenkins, 569 F.3d 549, 556 (6th Cir.2009); Robert v. Tesson, 507 F.3d 981 (6th Cir.2007); Mendez Lynch v. Mendez Lynch, 220 F.Supp.2d 1347, 1364 (M.D.Fla.2002); In re D.D., 440 F.Supp.2d 1283, 1299 (M.D.Fla.2006); Van De Sande v. Van De Sande, 431 F.3d 567, 568 (7th Cir.2005); Walsh v. Walsh,221 F.3d 204 (1st Cir.2000); Elyashiv v. Elyashiv, 353 F.Supp.2d 394, 398-400 (E.D.N.Y. 2005); Rodriguez v. Rodriguez, 33 F.Supp.2d 456, 459-60 (D.Md.1999); McManus v. McManus, 354 F.Supp.2d 62, 69-70 (D.Mass.2005); Tabacchi v. Harrison, 2000 WL 190576 (N.D.Ill. Feb. 10, 2000).
1 child wrongfully removed at 3 years – National of Spain and United States of America – Married parents – Father national of Spain – Mother national of United States of America – The mother and father had joint custody – Child lived in Turkey until 6 April 2014 – Application for return filed with the courts of the United States of America (federal jurisdiction) – Return ordered – Main issue(s): habitual residence and Art. 13(1)(b) grave risk exception to return – The retention was deemed unlawful and the “grave risk” exception to ordering return had not been established
The case concerned a child born in March 2011 to a Spanish diplomat father and an American mother. The child was a citizen of Spain and the United States. The parents had been in a relationship for about eight years before marrying in 2009. The child was born in the United States and had spent time in both Indonesia and Spain, but had spent the majority of his life in Turkey where he lived and attended preschool immediately before his retention in the United States.
On 6 April 2014, the mother travelled to Kentucky with the child. In a letter he registered with the Spanish embassy, the father authorised the trip, indicating that the mother and child would return at the end of April or beginning of May 2014. After arriving in the United States, the mother informed the father that she would not be returning with the child. Both parties filed for divorce and custody in Kentucky and Spain, respectively.
The mother alleged several incidents in which the father had reportedly abused the child. These included shaking the child, force-feeding the child until he vomited, pinching and grabbing him, including by his genitals. Pliego denied all claims of abuse; he attributed some to differences in culture. Little evidence was produced to corroborate either the claims or denials: the court remarked that “largely the allegations come down to the differing testimony of [the father] and [the mother]”.
Further domestic abuse allegations were made against the father. The mother asserted that she had been abused physically and emotionally for years and alleged three cases of rape. The father testified that he had, on one occasion, pulled the mother away from a balcony after she threatened to jump off it. Both parties had been undergoing psychological treatment at different times.
The retention was deemed unlawful and the “grave risk” exception to ordering return had not been established. The court ordered the child to be returned to Turkey.
The father argued that the habitual residence of the child was in Spain or, alternatively, Turkey. The mother argued that the child’s habitual residence was the United States or, alternatively, that he did not have a habitual residence. Federal case law of the Sixth Circuit required the Court to “look backwards, not forwards” and ignore prospective matters such as the parents’ intention to return or other future plans.
Both Spain and the United States were rejected as possible States of habitual residence of the child; the United States because the court “cannot consider the child’s residence or other factors after the wrongful removal” and Spain because the child had not spent enough time in the country. Turkey was found to be the child’s State of habitual residence, chiefly because the child had spent almost two thirds of his life there and participated in many social and academic activities in the State, such that his presence in Turkey had a “degree of settled purpose". It did not matter that the child did not speak Turkish and was not a Turkish citizen. These were unique circumstances resulting from the diplomatic nature of the father’s work.
The Court referred to Sixth Circuit precedent to distinguish three categories of abusive situations under Article 13(1)(b) of the Convention: ‘minor abuse’, which is unlikely to meet the “grave risk” threshold; cases in which there is credible evidence of sexual abuse, death threats or other forms of abuse clearly qualifying as “grave”; and a third category ‘where the abuse is substantially more than minor, but is less than obviously intolerable’. An example of a case with a level of abuse too low to constitute a grave risk would be where the father was verbally abusive and had pushed his wife over once. A clearly intolerable situation would include an instance where the father regularly beat and threatened to take the lives of both children and wife, causing them to be diagnosed with psychological disorders.
The allegations were problematic given the significant differences in the mother and father’s description of events; the court described both witnesses as credible. The conclusion was that there was not enough conclusive evidence to establish whether the alleged abuse had happened, would happen again or what effect it would have on the child, especially given the need to interpret the grave risk exception narrowly. The lack of the mother’s reporting of the abuse, although the Court accepted there may be reason for this, was also deemed problematic. The Court, whilst making it clear that this was not due to any lack of credibility on the part of the mother, ultimately found there were no grounds to establish an affirmative defence of grave risk of harm. The issues of abuse and suitability would more appropriately be determined by the relevant court determining custody issues.