| In Foster v Foster, 654 F. Supp 2d
348 (W. D. Pennsylvania, 2009) the district court held that the "grave
risk of harm" defense set forth in Article 13(b) of the Hague Convention
was not established to prevent the return of Isaiah to Canada. The Court
pointed out that the United States Department of State has offered the
guidance as to the applicability of this exception at 51 Fed.Reg. at
10,510 and that the meaning attributed to treaty provisions by the
government agencies charged with their negotiation and enforcement is
entitled to great weight." (Citing United States v. Stuart, 489 U.S.
353, 369, 109 S.Ct. 1183, 103 L.Ed.2d 388 (1989). It reviewed the
decisions of the Second Circuit in Blondin v. Dubois, 238 F.3d 153, 162
(2nd Cir.2001), the First Circuit in Whallon v. Lynn, 230 F.3d 450, 459
(1st Cir.2000), the Third Circuit in Baxter v. Baxter, 423 F.3d 363, 373
(3rd Cir.2005) and and Sixth Circuit in Simcox v. Simcox, 511 F.3d 594,
604 (6th Cir.2007). It noted that the Third Circuit has acknowledged
that evidence of a petitioner's abuse of his spouse is "relevant to the
District Court's determination of whether returning [the child] would
expose the child to a grave risk of harm." Application of Adan, 437 F.3d
at 396 n. 6. The Sixth Circuit has noted, however, that "the more
difficult question is at precisely what level ... the risk to the child
is grave, not merely serious." . The
Fosters were married on November 26, 1988 in Florida. They lived there
for approximately ten years before moving to Canada in 1998 and
ultimately settling in Val des Monts, Quebec. Isaiah was born in Canada
on October 28, 2000 and was subsequently legally adopted by the Fosters.
Both Fosters were present at Isaiah's birth. Respondent testified, in
essence, that from early on in the marriage Petitioner was verbally
abusive. While she denied any physical abuse while in Florida, she
testified that her husband would frequently call her an idiot or other
degrading names. The verbal abuse became more severe while awaiting
Isaiah's birth. Petitioner would frequently scream at her and chastise
her for not behaving like a "Proverbs 31 wife"-a contention that she was
not appropriately deferential or submissive to him. Respondent testified
that the first instance of physical abuse occurred when Isaiah was an
infant. An argument ensued when her husband told her he had been out
drinking with an old girlfriend. Matters apparently escalated to the
point where he threw her on the bed and squeezed her head. The other
incident of physical abuse directed toward Respondent occurred a number
of years later, when Isaiah was approximately six years old. Petitioner
and Respondent had become involved in an argument while driving home.
Isaiah became upset and Respondent was comforting him upstairs in her
bedroom after they got home. She testified that Petitioner came in,
grabbed her by the arm and pushed her through a doorway, causing her to
fall. Respondent testified in some detail as to the nature of
Petitioner's interaction with his son. She had observed that her husband
on occasion, when displeased with something Isaiah was doing, would
smack him on the head. If Isaiah fell short of his father's
expectations, such as an inability to perform a bike trick, he would
call him a "wuss" or a "wimp." This conduct occurred periodically since
Isaiah turned five. In the spring of 2008, Isaiah complained to her that
his dad had pulled his hair. She also recalled that Petitioner had
spanked Isaiah on approximately four occasions with a wooden spoon. She
relayed an incident where Petitioner had taken Isaiah to a ski resort
and, as a result of Petitioner's inattention, Isaiah had ridden up on a
ski lift by himself and, rather than debarking at the top, rode the lift
back down. She observed that Isaiah was quite upset by the incident.
Finally, she recalled an incident where Isaiah became quite frightened
when his father poured gasoline on a campfire that they had built on
their driveway. The court found, as a matter of fact, that the spoons
were plastic rather than wooden. As a result of what she perceived to be
an untenable domestic situation, she told her husband in mid-July of
2009 that she was picking up Isaiah from baseball practice. In fact, at
that point, she and Isaiah went to a shelter for abused women.
Thereafter, she and Isaiah traveled to Warren, Pennsylvania, and took up
residence with Respondent's parents.
Annette Wilkins, a children's advocate at a
domestic abuse center in Warren, was called on behalf of Respondent. She
reported that Isaiah had informed her that his father was "mean", had
hit him with a spoon, and had scared him when he poured gasoline on a
fire. He also referenced that his father had pulled his hair when he was
in kindergarten and pushed his mom down and made her fall. Karen Greto,
Isaiah's second grade teacher, testified that when Isaiah first arrived
in class, he had difficulty interacting with his fellow students. She
indicated that, as time progressed, he became more comfortable with
other children. She relayed an incident where a number of children whose
parents were separated expressed the sentiment that they wished their
parents lived together. Isaiah raised his hand and told her that he
didn't want his dad in his neighborhood. Isaiah told her that he feared
his father and she concluded that his feelings were genuine rather than
the product of coaching by his mother.
Timothy Foster testified that he was ordained a
minister in 1991 and served for a period as director for Fellowship for
Christian Athletes. He resided with his girlfriend and her children and
split his time between her residence and his residence in Val des Monts.
He relayed in great detail his athletic accomplishments, including his
membership on the Canadian National Ski Team and an appearance on the
Wide World of Sports. He denied that he had ever been physically abusive
to his wife. The Court did not credit that testimony. It found, as
relayed by Respondent, that he did intentionally push her in the
bathroom doorway
causing her to fall to the ground. It also
found that he squeezed her head in the manner described by Respondent.
Petitioner testified that on two occasions he disciplined Isaiah by
spanking him on his rear end with a plastic spoon. He attributed the
spanking to punishing Isaiah for accidentally dropping hot embers on the
floor and engaging in other dangerous behavior. The court found it was
most likely that Isaiah was spanked two to four times. The spankings
were no doubt painful because, as Petitioner described it, "if there
were red marks and he couldn't sit down afterwards, that's the whole
point." With respect to the gasoline incident, he claimed that he only
poured gas on the fire because the logs were wet and it had been
raining. To the extent that Isaiah was shaken by the incident, he
attributed it to an earlier incident when he had removed Isaiah from a
docked powerboat just moments before it exploded and burst into flames.
I note, parenthetically, that it does appear that the child was
frightened for a brief period of time as a result of Petitioner's
actions in pouring gasoline on the fire but that it is at least probable
that some of the child's concern was driven by the previous boating
incident.
The Court conducted an in camera examination of
Isaiah Foster. He indicated that he enjoyed school in Warren and the new
friends he had made there. He also stated that he missed his friends in
Canada. However, he denied that he missed his father because, in
Isaiah's words, his father "had been mean to us," and he "wanted it to
stop." At the conclusion of the interview he became tearful and
responded that he would rather live in Warren because, in his words, "I
am able to see my pet, if I go back to Canada, I can't see her again."
Dr. Steven Neuhaus was called by Respondent.
The Court recognized him as an expert in the field of clinical and
forensic psychology. Isaiah told him that his father could be mean and
that he was fearful of him. By way of example, Isaiah relayed that his
father "yelled at people" and had made Isaiah's grandmother cry.
The Court found that Petitioner had been
verbally abusive to Respondent over the last several years of their
marriage and has, on at least two occasions, been physically abusive.
With respect to the nature of his interaction with Isaiah, it found
Petitioner to be domineering, excessively demanding and impatient. As a
result of his own egocentrism and lack of sensitivity, he insisted on a
performance level from his son that was simply unattainable. In many
ways, he treated his son like a fellow world class athlete and made no
allowances for the fears and limitations of an eight-year-old boy. The
court found that Respondent failed to demonstrate by the clear and
convincing standard that Isaiah would be subjected to a grave risk of
physical harm if he were returned to Canada. The spankings, name-calling
and physical discipline described by Respondent were more akin to the
"isolated and sporadic" abuse that, "while regrettable, w[ere]
insufficient to establish a grave risk of harm to the child,". Nor did
it find that demonstrated by clear and convincing evidence that Isaiah
would face a grave risk of psychological harm if ordered to return to
Canada. Dr. Neuhaus emphasized in his testimony that he was reluctant
and unable to predict grave psychological harm with any degree of
psychological certainty. His ability to do so would have been greater
if, as he explained, Isaiah had been subjected to more serious physical
or psychological abuse. Dr. Neuhaus also implied that his concerns
regarding harm to Isaiah might be less acute if Respondent were to
accompany his return to Canada. The court found it significant in the
grave risk of harm calculus that Dr. Neuhaus found Isaiah to possess
good coping skills. Further, no evidence was produced, as required by
Third Circuit precedent, that the Canadian judiciary or other
appropriate Canadian authorities are "incapable or unwilling to give the
child adequate protection." (Citing Application of Adan, 437 F.3d at
395).
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