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In Baran v Beaty, 479 F.Supp.2d 1257 (S.D.
Alabama, 2007) Petitioner Gareth Alexander Baran ("Baran"), an
Australian national, cohabited with respondent Susan Elizabeth Beaty ("Beaty"),
a United States citizen from Daphne, Alabama, in a de facto relationship
in Altona, Victoria, Australia, from October 2001 through August 2006.
Their union produced a son, Samuel Aidan Beaty Baran ("Sam"), who was
born in Australia on March 11, 2006. The almost five years that Baran
and Beaty spent living together in Australia were not a happy time.
Baran sustained serious and debilitating injuries to his lower
extremities in an automobile accident in October 2001, rendering him
unable to work or even to care for himself for some time thereafter.
Beaty, a registered nurse who had earned her nursing degree at the
University of South Alabama, tended to Baran and simultaneously worked
long hours in a nursing capacity to support the household financially,
including paying Baran's child support obligations for his two children
from a previous marriage. Those children, Troy (age 16) and Shaye (age
12), visit and stay with their father on a regular basis with no court
supervision. Money was tight, causing considerable stress for the
couple. Baran became depressed and drank heavily, to the point where he
was spending $30-$50 per day on alcohol and becoming intoxicated on an
almost daily basis. It was not uncommon for Baran to drive an automobile
while intoxicated (often to or from the pub or the gambling hall), nor
was it unusual for him to pass out after an
all-day drinking binge, sometimes with a lit
cigarette in his possession. When
Baran was drunk, he was violent, unstable and
mean, such that he frequently
flew into a rage and lashed out at whoever
happened to be nearby. His anger
was often directed at Beaty. In that regard,
Baran would berate Beaty in the
foulest of terms, would intimidate her
physically, and would on occasion
become physically abusive towards her. For
example, on one occasion Baran
slapped Beaty so hard that she fell to the
ground. Another time, Baran
screamed at and pushed Beaty in the presence of
his daughter, Shaye,
frightening and upsetting her. On another
occasion while Beaty was quite
pregnant with Sam, Baran pinned her between a
door and the wall, pushing on
the door in a manner that applied intense
pressure to Baran's abdomen and
risked injury to Baran or her unborn child.
Other times, Baran hurled
furniture at Beaty and (during her third
trimester) smashed the door of the
couple's microwave oven in a fit of anger. The
arrival of Sam in March 2006 did nothing to temper these behaviors in
Baran. Quite the contrary, Beaty (who was on maternity leave from her
nursing job from February 2006 through August 2006) found that this
development exacerbated Baran's alcohol abuse and intensified his anger;
indeed, Baran's demeanor and conduct had begun deteriorating markedly
even in Beaty's third trimester. Baran commenced drinking all day every
day, and participated only minimally in Sam's care and supervision.
Baran in no way muted his erratic, volatile and abusive conduct in the
presence of his newborn son. In fact, he endangered Sam on more than one
occasion. One cold March night when Sam was less than a week old, Baran
became highly intoxicated and decided he wanted to show his drinking
companions "how big Sam's balls were," in his words, so he took Sam,
undressed him, and carried him out into the evening chill balanced on
one hand, before stumbling into a table, sending glassware flying as he
did so. Much more serious were the events of July 13, 2006, when Baran
subjected Beaty to a six-hour,
expletive-laden barrage of verbal abuse and
threats, all while she held Sam in
her arms. On that occasion, Baran screamed to
Beaty that he hated her, that
she was never going to see Sam or her family
again, and that he was going to
bash her face in. To punctuate the threat,
Baran repeatedly swung a portable
telephone at her head, causing Beaty to fear
for her very life. Throughout
this ordeal, she held Sam and attempted to use
her body to shield the infant
from his father's rage. For his part, Sam
remained very quiet, wide-eyed and
still as he did on the many occasions when
Baran became enraged in his
presence, but he cried out when Baran tore him
from Beaty's arms and deposited
him on a couch unsupervised. Despite these
incidents of endangerment, there
was no evidence that Baran had ever beaten or
otherwise physically harmed Sam.
Baran made it very clear in his alcohol-fueled
tirades to Beaty that he did
not want Sam. Indeed, at various times Baran
told Beaty in pointed terms that
she had "tricked" and "trapped" him with the
pregnancy, that he did not want
another child, that Beaty should not blame him
if anything happened to Sam,
and that she should have gotten an abortion.
Baran informed Beaty that when
the child grew older, he would tell Sam that he
did not want him. On at least
two occasions, July 31, 2006 and August 16,
2006, in the context of
disagreements concerning his family and/or
financial matters, Baran told Beaty
to "f* * * off back to the United States,"
admonishing her to take Sam with
her because Baran did not want him, did not
want this anymore, and wanted his
freedom. Based on this course of conduct, Beaty
came to fear for her life and Sam's
life if they remained in Australia with Baran.
Beaty felt isolated and believed that none of Baran's family could
provide any kind of support or intervention necessary to protect her and
Sam from Baran's explosive outbursts. Beaty never went to the Australian
police or judicial system for help because she firmly believed those
institutions would be unable to protect her. She never sought legal
custody of Sam from any Australian
tribunal. The Court found that Beaty genuinely
believed that she and Sam would
be in mortal danger if they continued to live
with Baran, and that she likewise believed that no one in Australia was
capable of helping or protecting them.
On August 16, 2006, Baran received a large
settlement (in an amount exceeding 325,000 Australian dollars, which
equates to more than $260,000 in U.S.
currency) as a result of his 2001 automobile
accident. From August 20, 2006 Beaty and Sam continuously resided with
Beaty's parents in Daphne, Alabama. Sam, who was five months old when he
arrived in America, quickly accepted female members of Beaty's family,
but was much more withdrawn in the presence of men. It took
approximately six
weeks before Sam's demeanor changed and he
became noticeably happier and
comfortable around males in the Beaty family.
For her part, Beaty wa adamant that she will never return to Australia
again under any circumstances because she fears that Baran will do
physical violence to her if she does.
All parties agreed that Sam was habitually
resident in Australia immediately before his removal in August 2006 and
that such removal was in breach of Baran's custody rights under
Australian law that he was actually exercising at the time.
The Court pointed out that Article 13(a) of the
Convention establishes that a court need not order the return of a child
if the petitioner "had consented to or subsequently acquiesced in the
removal or retention. Consent need not be expressed with the same degree
of formality as acquiescence. Nonetheless, that defense is likewise
focused on the petitioner's subjective intent. In examining a consent
defense, it is important to consider what the petitioner actually
contemplated and agreed to in allowing the child to travel outside its
home country." Accordingly, the appropriate formulation for the consent
defense is that the respondent must prove by a preponderance of the
evidence that the petitioner harbored a subjective intent to permit the
respondent "to remove and retain the child for an indefinite or
permanent time period." A petitioner's conduct following the removal of
the child may be beneficial in ascertaining whether such consent had
been provided at the time of removal. As evidence of consent, Beaty
proffered her own testimony that on two occasions (July 31, 2006 and
August 16, 2006), Baran told her in coarse terms to go back to the
United States and to take Sam with her. Her testimony reflected that
these statements arose in the context of disagreements between the
parties on a variety of topics, such that Baran was agitated, upset and
distracted. For his part, Baran stated in his September 21 Affidavit
that at no time had he ever agreed to Beaty taking Sam to the United
States or remaining there. The Court's determined as a factual matter
that Baran did angrily tell Beaty on two occasions to go back to the
United States and to take Sam with her. A factual finding that Baran
uttered these words did not necessarily equate to a legal determination
that Baran consented for purposes of Article 13(a). Inquiry turns on
Baran's subjective intent. Notwithstanding whatever words Baran might
have spoken in a fit of anger (alcohol-fueled or otherwise) in the
context of a stressful, emotional discussion, the preponderance of the
evidence did not reflect that Baran subjectively intended to authorize
Beaty to remove Sam from Australia and to retain him in the United
States indefinitely or permanently. The argumentative context in which
the words were spoken did not suggest that Baran was acting in a
thoughtful manner, or that his words necessarily reflected his true
intent. No one understood this more than Beaty, who proceeded to concoct
a subterfuge to deceive Baran as she and Sam made their getaway to
America. Had Beaty believed that Baran truly subjectively intended to
consent to their departure, such trickery would hardly have been
necessary. Moreover, the prompt and extensive measures undertaken by
Baran after Beaty's departure to bring about Sam's swift and indefinite
return to Australia were persuasive evidence that he never subjectively
intended to consent to his son's permanent removal and retention in a
foreign land.
The other defense invoked by Beaty was that
prescribed by Article 13(b) of the Convention, pursuant to which a court
may decline to return a wrongfully removed 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." This defense has routinely been construed as applying with
equal force to "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." Examination of the Article 13(b) "grave
risk" affirmative defense is necessarily a fact-intensive determination.
This exception "encompasses evaluation of the people and circumstances
awaiting that child in the country of her habitual residence. The Court
may consider the environment in which the child will reside upon
returning to [the country of habitual residence]." The Court found that
Beaty presented overwhelming evidence at the hearing that Sam would face
a grave risk of physical or psychological harm if he were left in
Baran's care pending Australian custody proceedings. Respondent's
testimony was both compelling and extensive that Baran abused alcohol on
a daily or near-daily basis, that he was susceptible to lengthy drinking
and gambling binges that in no way abated during the five months that
Sam habitually resided with him, that he was only marginally able to
care for his own basic needs, that he had no close family members or
friends that could reasonably be expected to have meaningful involvement
in Sam's day-to-day care and protection, that he was emotionally
unstable and prone to uncontrolled destructive outbursts of rage, that
he was physically and verbally abusive toward Beaty in Sam's presence,
that he physically endangered Sam (both intentionally and
unintentionally) when Sam lived under his roof, and that Baran
repeatedly and pointedly stated to Beaty after Sam's birth that he did
not want Sam, that Sam should have been aborted, that Sam would die if
Sam "became an American", and that Beaty could not blame him if
"something happened to" Sam. Based on this disturbing and sometimes
chilling testimony, which the Court credited, the Court readily
concluded that Beaty has demonstrated by clear and convincing evidence
that Sam would face a grave risk of physical or psychological harm if,
as Baran expressly requested in his Application, Sam were placed in his
care in Australia pending the outcome of an Australian custody
proceeding.
The Court noted that case law reflects that,
even when confronted with a grave risk of physical harm, certain courts
"have allowed the return of a child to the country of habitual
residence, provided sufficient protection was afforded." Walsh, 221 F.3d
at 221. That protection may take the form of "undertakings," or
enforceable conditions of return that may be ordered to mitigate the
risk of harm occasioned by the child's repatriation. See Feder v. Evans-Feder,
63 F.3d 217, 226 (3rd Cir.1995) ("in order to ameliorate any short-term
harm to the child, courts in the appropriate circumstances have made
return contingent upon 'undertakings' from the petitioning parent").
Undertakings may include such conditions as, for example, ordering the
child's return to his country of habitual residence, subject to
placement of the child in the temporary custody of a third party
(e.g., foster care) in that country until the home country's courts sort
out permanent custody issues. The determination of whether any valid
undertakings are possible in a particular case is "inherently
fact-bound" and is an issue on which the petitioner bears the burden of
proof. Danaipour, 286 F.3d at 21, 25. The Court found two insuperable
difficulties to Baran's last-minute attempt to inject the issue of
undertakings into this dispute. First, although the Eleventh Circuit has
not spoken on this question and the parties addressed it neither in
briefs nor in oral arguments, substantial persuasive appellate authority
from other jurisdictions supports the proposition that undertakings may
be inappropriate in this kind of case. In a recent opinion, the Seventh
Circuit expressed profound skepticism at the use of undertakings in
cases of abuse. See Van De Sande, 431 F.3d at 571-72. In that regard,
the Van De Sande court cautioned against blind reliance on undertakings
in such cases, opining that to place children in the hands of an abusive
father "on the ground that they will be protected by the police of the
father's country, would be to act on an unrealistic premise." Id. at
571. The Seventh Circuit also relied on State Department guidance that
where the Article 13(b) exception is satisfied, "it would seem less
appropriate for the court to enter extensive undertakings than to deny
the return request" because the use of undertakings in that 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." Id.
at 1572 (citations omitted). Van De Sande also cited with approval the
First Circuit's assessment 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." Id. (citing Danaipour, 286
F.3d at 25.). The First Circuit's approach is similar, touting the State
Department's view that undertakings should be limited in scope, opining
that undertakings addressing in detail matters of custody and
maintenance appear questionable, and expressing aversion to the
unseemliness of a U.S. court issuing orders for a foreign court to
enforce, particularly given the specter that the foreign court may not
enforce such orders. The Danaipour court suggested that undertakings are
most appropriate when they are proposals agreed upon by the parties
which can be readily presented to a judge in the requesting state, so as
to obviate these international comity and transboundary enforcement
concerns. Thus, the Danaipour court struck down a district court's
return order which included undertakings that the district court
believed were necessary to protect the children from grave risk, but
that were based on the district court's erroneous assumption that
Swedish courts would simply copy and enforce those undertakings as
given.
The critical lesson that the Court derived from
the First Circuit, the Seventh Circuit, and the Department of State is
that where, as here, "substantial allegations are made and a credible
threat exists, a court should be particularly wary about using
potentially unenforceable undertakings to try to protect the child."
This was just such a case. The Court found that respondent had shown by
clear and convincing evidence that there is a grave risk that ordering
Sam to return to Australia would expose him to a grave risk of physical
or psychological harm, or otherwise place him in an intolerable
situation. The Petition for the Return of Child was denied.
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