|
In Simcox v Simcox, --- F.3d —, 2007
WL 4547728 (C.A.6 (Ohio)) Claire Simcox appealed from the decision of
the district court ordering her to return to Mexico with two of the four
children currently residing with her in Ohio. Although the Sixth Circuit
agreed with much of the district court's legal analysis its ordered
undertakings were problematic on the facts of this case, particularly
its command that Mrs. Simcox herself return to Mexico. The Court
reversed and remanded to allow the court to reconsider what conditions,
if any, could ensure the safety of the children in Mexico during the
pendency of custody proceedings. The parties were both United States
citizens, were married in London in 1991. They traveled extensively
throughout their marriage and moved frequently, visiting approximately
45 countries. Mrs. Simcox maintained that the family had no real home
and lived a nomadic and isolated existence . Nevertheless, it appeared
that-apart from some temporary sojourns abroad-they resided in Mexico
since at least the birth of their youngest child there in 2002. The last
place of residence for the family was the town of Rafael Delgado in the
state of Veracruz. Mrs. Simcox characterized their residence in Rafael
Delgado as a flophouse, but the oldest child, who still resided there
with her father, testified that it was a lovely house that they all
considered home. The parties painted a starkly different picture of what
family life in Mexico was like. Mr. Simcox described the children's
lives as blissful, filled with exotic travel and wondrous educational
and cultural opportunities. Mrs. Simcox, on the other hand, claimed that
the children's lives were filled with hard labor, severe physical
punishment, exposure to [Mr. Simcox]'s humiliations and violent
behavior[,] and long weeks of travel confined to a car. The district
court expressed frustration at the lack of credibility of both [parties]
and noted that the disparities [in their testimonies are] so broad this
Court can only speculate on the truth. Nevertheless, it was clear that
Mr. Simcox was both verbally and physically violent with his wife and
children. For example, the oldest child testified that he would call
Mrs. Simcox a f---ing bitch [and] a c--- in the presence of the
children, and that [h]e would maybe grab her jaw and put his finger on
her neck, pulling hair. She also stated that her father once while
driving banged her mother's head against the passenger window of the
vehicle in which they were traveling, and that she often had to
intervene by placing herself between them. The other children (with the
exception of the youngest, who did not testify) expressed fear of their
father and recounted frequent episodes of belt-whipping, spanking,
hitting, yelling and screaming, and of pulling their hair and ears. They
also witnessed their father strike their mother on numerous occasions.
The District Court Ordered the return under the following conditions:
... the Court orders [the two youngest children] returned to Mexico but
[they] must remain in the custody of [Mrs. Simcox] in the family's
residence in Rafael Del Gado, Mexico until the Mexican Court hears and
determines whether a protective order is appropriate. [Mr. Simcox] shall
have no contact with [Mrs. Simcox] until the Mexican Court determines
access and visitation rights. Upon return to Mexico, [Mrs. Simcox] shall
provide [the oldest child] reasonable access to her siblings.
The Sixth Circuit pointed out that Habitual
residence is not defined by the Convention, but as it has noted, there
is no real distinction between ordinary residence and habitual
residence. Friedrich v. Friedrich, 983 F.2d 1396, 1401 (6th Cir.1993) (
Friedrich I ). A person can have only one habitual residence. On its
face, habitual residence pertains to customary residence prior to the
removal. The court must look back in time, not forward. In answering the
question of habitual residency, a court should consider whether the
child has been physically present [in the country] for an amount of time
sufficient for acclimatization and whether the place has a degree of
settled purpose from the child's perspective. (Citing Robert v. Tesson,
507 F.3d 981, 2007 WL 3354019 at *6 (6th Cir. Nov.14, 2007). Friedrich
was directly on point. The case involved a boy born in Germany to an
American mother and a German father; aside from a few vacations, he had
resided in Gertany his entire life (twenty months) until removed to the
United States by his mother. the youngest Simcox child was born in
Mexico and resided there her entire life (other than for some temporary
sojourns abroad). The second-youngest, who was about seven years old at
the time of removal, appears to have lived there since the age of four.
Mrs. Simcox conceded, the entire family stayed in Mexico since at least
2002. That they may have moved around to different communities within
Mexico, had a nomadic lifestyle, or often traveled internationally, did
not change the fact that Mexico was the country in which the family
principally resided during the period in question. The district court
credited evidence that Mr. Simcox presented regarding leases of real
property in Mexico, utility bills, frequent withdrawals on accounts in
Mexican banks, membership cards to various stores in Mexico, and Mrs.
Simcox's own testimony in concluding that Mr. Simcox had met his burden
of demonstrating, by a preponderance of the evidence, that the family's
place of habitual residence was Mexico. The district court did not err
in so finding.
The Sixth Circuit noted that under Article 13b
of the Hague Convention, a court is not bound to order the return of the
child if ... 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. The grave risk exception is to be
interpreted narrowly, lest it swallow the rule. While all jurists would
agree that some level of domestic abuse will trigger the Article 13b
exception, the more difficult question was at precisely what level will
return expose the child to a grave risk of harm or place the child in an
intolerable situation? The court noted that it has favorably cited a
State Department report that states, The person opposing the child's
return must show that the risk to the child is grave, not merely
serious. Friedrich II, 78 F.3d at 1068 (citing Public Notice 957, 51
Fed.Reg. 10494, 10510 (March 26, 1986)); see also Walsh v. Walsh, 221
F.3d 204, 218 (1st Cir.2000) ([T]he harm must be a great deal more than
minimal.). The same report also noted that [a]n example of an
intolerable situation is one in which a custodial parent sexually abuses
the child because such circumstances would constitute a grave risk of
psychological harm. Even when confronted with a grave risk of harm, some
courts have exercised the discretion given by the Convention to
nevertheless return [the] child to the country of habitual residence,
provided sufficient protection was afforded. That protection may take
the form of undertakings, or enforceable conditions of return designed
to mitigate the risk of harm occasioned by the child's repatriation. The
determination of whether any valid undertakings are possible in a
particular case is inherently fact-bound and the petitioner proffering
the undertaking bears the burden of proof. Many courts and commentators
have advocated the use of undertakings in order to accommodate [both]
the interest in the child's welfare [and] the interests of the country
of the child's habitual residence. The same courts, however, have viewed
undertakings much more skeptically in cases involving an abusive spouse.
Undertakings are not appropriate in all cases, and a court must
recognize the limits on its authority and must focus on the particular
situation of the child in question in order to determine if the
undertakings will suffice to protect the child. The State Department,
whose comments are frequently cited in case law and are accorded great
weight, offered guidance on the proper use of undertakings. The State
Department recommends that undertakings should be limited in scope and
further the Convention's goal of ensuring the prompt return of the child
to the jurisdiction of habitual residence, so that the jurisdiction can
resolve the custody dispute. Undertakings that do more than this would
appear questionable under the Convention, particularly when they address
in great detail issues of custody, visitation, and maintenance. The
report goes on to assert, If the ... court is presented with unequivocal
evidence that return would cause the child a grave risk of physical or
psychological harm, however, then it would seem less appropriate for the
court to enter extensive undertakings than to deny the return request.
The development of extensive undertakings in such a context could
embroil the court in the merits of the underlying custody issues and
would tend to dilute the force of the Article 13(b) exception. In
examining this official guidance, courts have concluded that
undertakings are most effective when the goal is to preserve the status
quo of the parties prior to the wrongful removal. This, of course, is
not the goal in cases where there is evidence that the status quo was
abusive.
The Sixth Circuit held that in considering
whether a grave risk exists and whether any undertakings can ameliorate
it, a court should primarily focus on the time period between
repatriation and the determination of custody by the courts in the
child's homeland. While acknowledging that other circuits have stated
that the Convention does not require that the risk be immediate, only
that it be grave, and that undertakings that will protect the child from
grave risk for only a very limited time are insufficient to defeat an
Article 13(b) claim, it did not believe that these statements should be
interpreted as an invitation for a court to engage in an open-ended
grave risk analysis. That is, an inquiry that focuses on too lengthy a
period of time runs the risk of turning into a child's best interests
analysis, which is not the proper standard under the Convention. In
considering these authorities, the Court believed that Hague Convention
cases dealing with abusive situations can be placed into three broad
categories. First, there are cases in which the abuse is relatively
minor. In such cases it is unlikely that the risk of harm caused by
return of the child will rise to the level of a grave risk or otherwise
place the child in an intolerable situation under Article 13b. In these
cases, undertakings designed to protect the child are largely
irrelevant; since the Article 13b threshold has not been met, the court
has no discretion to refuse to order return, with or without
undertakings. Second, at the other end of the spectrum, there are cases
in which the risk of harm is clearly grave, such as where there is
credible evidence of sexual abuse, other similarly grave physical or
psychological abuse, death threats, or serious neglect. In these cases,
undertakings will likely be insufficient to ameliorate the risk of harm,
given the difficulty of enforcement and the likelihood that a serially
abusive petitioner will not be deterred by a foreign court's orders.
Consequently, unless the rendering court can satisfy itself that the
children will in fact, and not just in legal theory, be protected if
returned to their abuser's custody, the court should refuse to grant the
petition. Third, there are those cases that fall somewhere in the
middle, where the abuse is substantially more than minor, but is less
obviously intolerable. Whether, in these cases, the return of the child
would subject it to a grave risk of harm or otherwise place it in an
intolerable situation is a fact-intensive inquiry that depends on
careful consideration of several factors, including the nature and
frequency of the abuse, the likelihood of its recurrence, and whether
there are any enforceable undertakings that would sufficiently
ameliorate the risk of harm to the child caused by its return. Even in
this middle category, undertakings should be adopted only where the
court satisfies itself that the parties are likely to obey them. Thus,
undertakings would be particularly inappropriate, for example, in cases
where the petitioner has a history of ignoring court orders. Where a
grave risk of harm has been established, ordering return with feckless
undertakings is worse than not ordering it at all.
The Court noted that although the grave risk
threshold is necessarily a high one, there is a danger of making the
threshold so insurmountable that district courts will be unable to
exercise any discretion in all but the most egregious cases of abuse.
Absent a grave risk finding, the Convention leaves no room for a court
to establish, as the district court did in this case, ameliorative
undertakings designed to protect children against the risk of harm upon
their return. Once the district court determines that the grave risk
threshold is met, only then is the court vested by the Convention with
the discretion to refuse to order return. It is with this discretion
that the court may then craft appropriate undertakings. Given the
intensely fact-bound nature of the inquiry, district courts should be
allowed adequate discretion. In applying the above framework to the
present case, the Court believed it fit in the middle category. The
nature of abuse here was both physical (repeated beatings, hair pulling,
ear pulling, and belt-whipping) and psychological (Mr. Simcox's profane
outbursts and abuse of the children's mother in their presence).
Importantly, these were not isolated or sporadic incidents. A
psychologist who examined the children presently in Mrs. Simcox's
custody found that all but the youngest were suffering from some level
of post-traumatic stress disorder. Such psychological trauma could be
exacerbated if D. Simcox was returned to Mexico and come again into
contact with his father. Although S. Simcox, presumably due to her young
age, appeared to have largely escaped the physical and psychological
injuries suffered by her older siblings, nothing in the Convention
requires that a child must first be traumatized by abuse before the
Article 13b exception applies. The abuse in this case was somewhat less
serious than the abuse in which other courts have refused to order
return. But it was also decidedly more serious than the abuse in those
cases, cited by Mr. Simcox, in which courts had declined to find a grave
risk of harm. In sum, the case presented difficult, middle-of-the-road
facts. And though it was admittedly a close question, in weighing all of
the above factors-the serious nature of the abuse, the extreme frequency
with which it occurred, and the reasonable likelihood that it will occur
again absent sufficient protection the Court concluded that Mrs. Simcox
met her burden of establishing, by clear and convincing evidence, a
grave risk of harm in this case.
The Court found that the problem with these
undertakings was two-fold. First, the court ordered Mrs. Simcox herself,
not just the children, to return to Mexico. Thus, Mrs. Simcox could
arguably defeat the order of return by simply refusing to accompany her
children to Mexico; since the condition that the children remain in her
custody would be unfulfilled, the children would not be returned.
Further litigation would inevitably ensue. Assuming that the district
court could not compel Mrs. Simcox to return to Mexico, the court had to
provide for a contingency to assure the children's safety and care
should Mrs. Simcox choose to remain in the United States. By the
district court's analysis, Mr. Simcox had exhibited an arrogance, a need
to be in control and a tendency to act out violently; such traits raised
questions as to Mr. Simcox's willingness to abide by the court's
undertakings, as did his threats to have his wife arrested upon her
return to Mexico. On remand, it left it to the district court to
determine what undertakings, if any, will be sufficient to ensure the
safety of the Simcox children upon their return to Mexico pending the
outcome of custody proceedings. Any order on remand should be explicit
as to the appropriate and efficacious undertakings that will apply
should Mrs. Simcox decline to accompany her children. One possibility
may be for Mr. Simcox-who, like Mrs. Simcox, is a U.S. citizen and
passport-holder-to remain in the United States and surrender his
passport for a period of time. If the district court determines that no
such arrangement is feasible, or that the only way in which the children
may be protected from harm is for them to remain in the custody of their
mother, then it may be necessary to deny the petition. The burden for
establishing the appropriateness and efficacy of any proposed
undertakings rested with the petitioner.
|
