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In Charalambous v Charalambous, --- F.3d ----,
2010 WL 4963063 (1st Cir.(Me.)) Savvas Charalambous filed a petition for
the return of his two children, A.C. and N.C., to Cyprus .The children
were removed in June 2010 from Cyprus, their country of habitual
residence, to the United States by their mother, Elizabeth R.
Charalambous. She did not return the children to Cyprus before September
2010 as she had represented she would. She defended against the petition
primarily on the ground that returning the children would expose them to
a grave risk of harm, an exception to return under Article 13(b) of the
Convention. Following an evidentiary hearing, the district court held
that there was no clear and convincing evidence of a grave risk of harm
to the children, and that the Convention required their return. The
court ordered the children placed in their father's custody. The First
Circuit affirmed finding no error of law by the district court and
holding that its findings and conclusions were well supported. Savvas, a
citizen of Cyprus, married Elizabeth, a citizen of the United States, in
a civil ceremony in Virginia in 1996, and again in a religious ceremony
in Cyprus in 1998. The couple has resided in Limassol, Cyprus since
December 1997, save for a few months in 2004 during which Elizabeth and
Savvas briefly separated and Elizabeth returned on her own to her
parents' home in Maine. They had two children: N.C., born in 2002, and
A.C., born in 2008. On June 18, 2010, Elizabeth, N.C. and A.C. departed
Cyprus for a summer visit to Elizabeth's family in Maine. Elizabeth had
purchased return tickets to Cyprus, and Savvas expected Elizabeth and
the children to return in August 2010. By July 2010, Savvas came to
believe Elizabeth would not return to Cyprus with the children as
planned, based on her failure to provide the children opportunities to
speak to their father, the infrequent nature of her communications with
him, and what she said when she did communicate. These beliefs were
confirmed when Elizabeth informed Savvas on July 23, 2010 that she and
the children would not be returning as planned. Consequently, on July
26, 2010, Savvas filed an application for return of his children under
the Hague Convention with the Central Authority in Cyprus. Savvas then
filed a petition in the District of Maine on September 3, 2010, alleging
that Elizabeth had wrongfully retained N.C. and A.C. in the United
States, and seeking the return of the children to Cyprus pursuant to the
Hague Convention and ICARA.
On October 12, 2010, the court entered its
Findings of Fact and Conclusions of Law, granting Savvas's petition, and
ordering the children returned to the custody of their father by October
20, 2010. (See Charalambous v. Charalambous, No. 10-CV-375, 2010 WL
4115495, at *12 (D.Me. Oct. 12, 2010). The court concluded that
Elizabeth had wrongfully retained the children in Maine and that
Elizabeth had failed to prove either that Savvas had consented or
acquiesced to the retention or that the children faced a grave
risk of physical or psychological harm if they were returned to Cyprus.
The First Circuit affirmed. On appeal,
Elizabeth waived most of her claims and only pursued discrete portions
of her grave risk defense. The Court pointed out that under Article
13(b), "grave" means a more than serious risk, but it need not be an
immediate risk. See Danaipour, 286 F.3d at 14 (citing Hague
International Child Abduction Convention: Text and Legal Analysis, 51
Fed.Reg. 10,494, 10,510 (Mar. 26, 1986)); Walsh, 221 F.3d at 218.)
Elizabeth argued that the district court made
an error of law and asserted that the court only considered physical
harm, sexual abuse, and spousal abuse, and overlooked the question of
"psychological harm," a term used in Article 13(b). This argument flatly
ignored the fact that the district court made an express finding that
Elizabeth had failed to meet her burden of showing psychological harm.
Elizabeth also argued the district court failed
to adequately consider the risk that, if returned to Cyprus, N.C. will
be less likely to get the psychological treatment she believes he needs.
She said that treatment is unavailable, citing that there are only three
therapists specializing in the treatment of children in Limassol, and
that Savvas's extended family will prevent N.C. from obtaining the
psychological services he requires. The First Circuit noted that the
district court explicitly considered "the ... evidence relating to the
influence of the Charalambous family in Cyprus," and concluded that "the
total weight of the evidence did not present a clear and convincing case
of grave risk."
"The Article 13(b) defense may not be used 'as
a vehicle to litigate (or relitigate) the child's best interests.' " (Danaipour,
286 F.3d at 14 (quoting Hague International Child Abduction Convention:
Text and Legal Analysis, 51 Fed.Reg. at 10,510).
The Second Circuit's decision in Blondin v.
Dubois, 238 F.3d 153 (2d Cir.2001), did not help Elizabeth. That
decision was based on a diagnosis that the children's post-traumatic
stress disorder would recur if they were returned to their home country,
not the relative availability of resources in each country. The court
expressly rejected the argument, made here by Elizabeth, that the grave
risk exception prevents "return to a home where money is in short
supply, or where educational or other opportunities are more limited
than in the requested State." The relevant inquiry is not whether there
would be a grave risk of harm to Elizabeth if she returned to Cyprus;
rather, the grave risk inquiry goes to the children. (See Abbott, 130
S.Ct. at 1997 (noting that if respondent could demonstrate returning
child to home country "would put her own safety at grave risk, the court
could consider whether this is sufficient to show that the child too
would suffer 'psychological harm' "); Walsh, 221 F.3d at 220). Elizabeth
failed to draw a connection establishing, by clear and convincing
evidence, that any risk to her constituted a grave risk to the children.
The district court found that "Elizabeth was subjected to some verbal
and emotional abuse and that there was one incident of physical abuse"
which "did not require any medical treatment." The court further
determined that "the record does not reflect that N.C. and A.C. have
witnessed their father being abusive toward their mother." In light of
these findings, the court reasoned it could not conclude "the Children
would suffer from psychological harm or be placed in an intolerable
situation based on spousal abuse if they are returned."
In view of the district court's well supported
findings, there was no grave risk to the children under Article 13(b)
associated with any potential future abuse of their mother. Finally,
Elizabeth argued that the district court failed to consider the impact
that returning the children to Cyprus without their mother would have on
them, given her stated choice to remain in the United States regardless.
She focused on evidence of the "extraordinary attachment" between the
children and their mother.
The district court supportably found that
Elizabeth's stated refusal to return to Cyprus was based upon "her
subjective perception of a threat" that was "not corroborated by other
evidence in the record." Regardless, the court weighed the consequences
of Elizabeth choosing not to return to Cyprus, and concluded that "the
alternative of allowing these children to remain wrongfully retained in
this country is equally likely to traumatize the children."
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