|
[HOME]
[SITE MAP]
ARTICLES BY SUBJECT
Adoption
Agreements
Alimony, Maintenance and
Spousal Support
Child Abuse
Child Abduction
Child Custody
and Parental Alienation
Child Support
Child Visitation
Common Law Marriage
Domestic Violence
Degrees and Licenses
Engagement Gifts
Enforcement
Grandparent Visitation
and Non-Parent Visitation
Grounds For Divorce
International Child Abduction
Legal Fee Awards and
Awards For Expenses
Litigation and Procedure
Marital Property
Property
Distribution
Questions About
Taxes
Retirement Benefits
Separate Property
Spousal Support
Uniform Child
Custody Jurisdiction and Enforcement Act
| |
|
| Cuellar v Joyce, ---
F.3d ----, 2010 WL 624886 (9th Cir.(Mont.))
|
In Cuellar v Joyce, --- F.3d ----,
2010 WL 624886 (9th Cir.(Mont.)) Richard Joyce built a sailboat and
sailed it to Panama, where he met Leyda Cuellar. They married in Panama,
where she eventually gave birth to a baby girl, K.C. Leyda lived in
Neuva Livia, a neighborhood that Richard described as "slum-like,"
"beyond the end of the road" and "very dangerous," although Leyda
pointed out that Richard never complained when they were dating. When
K.C. was nineteen months old, Richard arranged for Leyda and K.C. to
meet him in Australia. At the Sydney airport, Richard separated himself
and K.C. from Leyda and flew to the United States, leaving Leyda behind
without her passport. Leyda tracked Richard down in Montana, where he
lived with K.C., and petitioned the district court there for K.C.'s
return. The district court denied relief. The Ninth Circuit reversed in
an opinion by Chief Judge Kozinski.
At the outset, the court pointed out that Article 13(b) of the
Hague Convention provides that return need not be ordered where "there
is a grave risk that ... return would expose the child to physical or
psychological harm or otherwise place the child in an intolerable
situation." So as not to impair the Convention's general policy, this
exception is "narrowly drawn," and all facts supporting the exception
must be established by clear and convincing evidence. 42 U.S.C.
11603(e)(2)(A). He noted that the district court withheld return based
on the grave risk exception. The court cited Leyda's living conditions
in Panama, K.C.'s medical needs and K.C.'s psychological attachment to
the United States and her father. The district court credited Richard's
testimony about the home where Leyda lived with K.C.: that the home "has
no indoor running water"; that "residents in this area use a nearby
creek and outhouse for waste disposal"; and that the home "has no
climate control, no refrigeration, and very little furniture." Accepting
all this as true, Judge Kozinski found it came nowhere close to
establishing a grave risk of harm if K.C. were returned to Panama to
live with her mother. He pointed out that billions of people live in
circumstances similar to those described by Richard. If that amounted to
a grave risk of harm, parents in more developed countries would have
unchecked power to abduct children from countries with a lower standard
of living. At the time the Convention was adopted, the State Department
took care to emphasize that grave risk doesn't "encompass ... a home
where money is in short supply, or where educational or other
opportunities are more limited." The district court made no finding that
K.C. was malnourished or that her diet in Panama had imperiled her
health. Nor was there evidence that could have supported such a finding.
Richard testified that K.C.'s "diet was poor, so she was kind of small
and thin," and the district court noted that a professor of early
childhood education called by Richard "did express concern that perhaps
K.C. was malnourished." This plainly did not amount to clear and
convincing evidence of a grave risk of harm, and the district court
erred by denying relief on that basis.
The district court also denied relief based on its conclusion
that "K.C. suffered a serious head injury that was easily preventable"
while in her mother's care. The district court appeared to have credited
Richard's testimony on this matter. The district court also relied on
Richard's testimony that K.C. was sometimes cared for by a sick
relative, had frequent ear infections and had unexplained burns behind
her earlobes. Based on this testimony, the district court concluded that
Leyda was so neglectful that to return K.C. to her custody would be
"unsafe." Judge Kozinski held held that by drawing this conclusion about
Leyda's fitness as a parent, the district court overstepped its mandate
and impermissibly addressed the ultimate question of custody.
Well-cared-for children do occasionally have accidents, and leaving a
child with a sick relative may or may not be neglectful, depending on
the circumstances. Richard's feeble showing, even if believed verbatim,
as the district court seems to have done, fell far short of clear and
convincing evidence of "serious abuse" that is "a great deal more than
minimal." It was not the district court's prerogative to determine
whether Richard or Leyda was the better parent.
Richard tried to fashion an exception to this rule where the
abducting parent believes the legal system in the country of habitual
residence is too corrupt to fairly decide the issue of custody. Richard
testified: I believe that if [K.C.] goes back to Panama, she'll be lost
the moment she gets off the plane. Neuva Livia is outside the bounds of
what we consider a civilization, and that will just be it. I can't show
up down there in some local court in Neuva Livia as the gringo and argue
anything. I don't believe I'll ever see her again. The court noted that
the animating idea behind the Hague Convention is to eliminate "any
tactical advantages gained by absconding with a child." Judge Kozinski
noted that at least one court has held that a petitioner may defeat
removal by showing that courts "in the country of habitual residence,
for whatever reason, may be incapable or unwilling to give the child
adequate protection" from a severely abusive or neglectful parent.
Friedrich, 78 F.3d at 1069. This statement is in some tension with the
theory of the Hague Convention and its holding that the grave risk
inquiry focuses only on "the period necessary to obtain a custody
determination." Gaudin, 415 F.3d at 1037. The Court did not have to deal
with the question of whether to adopt the Sixth Circuit's rule as its
own because the evidence presented by Richard came nowhere close to
raising the issue. Richard's speculative and unsubstantiated concern
about the fairness of Panama's courts fell woefully short of the showing
required by the Sixth Circuit in Friedrich.
The district court also concluded that K.C. exhibits "ataxia,"
which is a lack of coordination that may be symptomatic of a number of
underlying neurological conditions. It based this finding on Richard's
testimony regarding a diagnosis by an unidentified physician, testimony
by a professor of early childhood education whose primary area of study
is "intergenerational patterns of intimacy and autonomy" and a written
statement by Richard's sister (a registered nurse) prepared a full year
after she examined K.C. The professor didn't claim to be qualified to
give a medical opinion, and Richard's self-serving testimony about
actual medical doctors was vague and unsubstantiated. Even assuming the
sister's report wasn't hearsay, its probative value was limited given
the sister's likely bias, the lack of cross-examination, the time
elapsed between the sister's observations and her report, and the fact
that she's not a doctor. None of this amounted to clear and convincing
evidence of a medical condition. The district court clearly erred in
finding that it did.
The district court's finding that "Panama has doctors but they
will not have the specialized treatment and therapy that K.C. needs" was
unsupported by the record. A parent may be able to defeat or delay
return by showing that it would disrupt an ongoing course of medical
treatment and severely impact the child's health. But the parent would
have to provide clear and convincing evidence both of the child's
serious medical needs and of the home country's inability to provide the
necessary care. That evidence was entirely lacking here.
The district court also denied relief based on K.C.'s
attachment to the United States and her father, and the psychological
harm that would result if she were to return to Panama. This was a very
serious error. The fact that a child has grown accustomed to her new
home is never a valid concern under the grave risk exception, as "it is
the abduction that causes the pangs of subsequent return." Rather than
allowing an abducting parent to profit from the psychological
dislocation that he has caused, the Convention attempts to avoid the
harm by deterring parents from abducting their children in the first
place.
Judge Kozinski concluded that there was nothing special about
this case. Richard provided absolutely no evidence that should have
delayed K.C.'s return to her habitual residence in Panama. Although the
parties presented evidence on the question of whether Leyda consented to
K.C.'s removal to the United States, the district court assumed, without
deciding, that Leyda did not consent. The only evidence of consent that
Richard presented was the fact that Leyda allowed herself to be
separated from Richard and K.C. at the airport in Sydney. This was
plainly insufficient. Being victim of a successful abduction can never
prove consent. Even ambiguous statements or actions don't suffice; the
Convention requires the parent opposing removal to "unequivocally
demonstrate that [the petitioning parent] consented to the child's
indefinite stay in [America]." Asvesta, 580 F.3d at 1019. There was no
such evidence here; in fact, Leyda's email to Richard shortly after the
abduction, imploring him to "give me back my baby" and stating that "I'm
going to die if you don't return her," provided strong evidence to the
contrary. |
|
Go To Top of Page |
|
