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In Elyashiv v. Elyashiv, 353 F.Supp.2d 394 (E.D.N.Y.,
2005), petitioner filed a petition against his wife, seeking the return
to Israel of their three children, who were currently residing with
their mother in the United States. Ms. Elyashiv opposed the petition,
arguing that returning the children to Israel would pose a grave risk of
physical or psychological harm, and the children, having attained a
sufficient age and degree of maturity, object to their return. The
petition was denied. The Court found throughout their marriage, Mr.
Elyashiv verbally and physically abused Ms. Elyashiv; he repeatedly
directed ethnic slurs towards her, kicked and hit her. One particularly
brutal incident occurred in front of Ma'ayan in 1995, when she was just
five years old; Mr. Elyashiv beat Ms. Elyashiv, resulting in bleeding
wounds to her nose and eyebrows and bruises on her legs that lingered
for over two months. The abuse intensified, evolving from kicking and
hitting to attempted strangulation, in that latter regard, approximately
a month before Ms. Elyashiv left Israel, Mr. Elyashiv placed his hands
around her neck, repeatedly shouting, "get out Satan." Mr. Elyashiv also
physically abused both David and Ma'ayan. Mr. Elyashiv's abuse
originated as verbal disparagement, but evolved to physical abuse. Over
time, a pattern developed whereby Mr. Elyashiv routinely used his belt,
shoes or hand to hit Ma'ayan and David approximately once or twice a
week. Most frequently, the abuse occurred when the children's playing
interfered with Mr. Elyashiv's sleep. Mr. Elyashiv became so enraged
that he placed a pillow over David's face to quiet his crying. When Ms.
Elyashiv intervened, Mr. Elyashiv hit her. Mr. Elyashiv, who had three
swords and a licensed gun in the home, threatened that "the big sword
was to hurt Ma'ayan, and the middle one for David, and the small one is
Inbar, and the gun is for [Ms. Elyashiv]." David and Ma'ayan were
diagnosed with Post-Traumatic Stress Disorder (PTSD). The Court noted
that the grave-risk exception is a narrow one. A "grave risk" exists in
only two situations: (1) where returning the child means sending him to
"a zone of war, famine, or disease"; or (2) "in 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." Blondin v. Dubois, 238
F.3d 153, 162 (2d Cir.2001) (Blondin IV ) (quoting Friedrich v.
Friedrich, 78 F.3d 1060, 1069 (6th Cir.1996)) Applying the teachings of
Blondin and the other relevant case law, the Court concluded that its
factual findings constitute clear and convincing evidence that warrant
invocation of the Article 13(b) grave-risk exception.
In the last paragraph of the decision the court
states, in part:
"... however, under the circumstances of this
case, especially in light of Dr. Brandt's report of Inbar's "terrifying
notion" of being separated from her siblings and mother, the Court
cannot find that there could be any viable arrangements that the Israeli
authorities, or anyone else, could provide; moreover, once again, Mr.
Elyashiv is not likely to obey any protective order. FN16
FN16. In Blondin III, the district court noted
that the expert explained that the younger child, who was four, did not
exhibit any "clear manifestations of traumatic stress-disorder ...
because he would probably have been too young to remember it or be able
to verbalize it." 78 F.Supp.2d at 291 n. 9. The court, nonetheless,
commented that it "will not separate the children," id., citing cases,
including Aristotle P. v. Johnson, 721 F.Supp. 1002, 1005-06
(N.D.Ill.1989) ("[C]hildren['s] relationships with their siblings are
the sort of 'intimate human relationships' that are afforded 'a
substantial measure of sanctuary from unjustified interference by the
State.' " (quoting Roberts v. United States Jaycees, 468 U.S. 609, 618,
104 S.Ct. 3244, 82 L.Ed.2d 462 (1984))). The court's decision, however,
as well as the Second Circuit's affirmance, inexplicably proceeded on
the basis that both children would experience post-traumatic stress
disorder if returned to France. Under the unique facts of the present
case, the Court need not grapple with the unpalatable prospect of having
to determine whether suitable arrangements by governmental authorities
could be arranged for some, but not all, siblings, requiring their
separation.
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