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In Miltiadous v Tetervak, 686 F.Supp.2d 544, 686 F.Supp.2d 544 ( E.D.
Pennsylvania) Miltiadis Achillea Miltiadous, the father ("Petitioner"),
filed for a petition for the return of his two children from the United
States to Cyprus. Petitioner was a citizen of Cyprus and Respondent was
a Russian citizen. The two met in Cyprus in 2000 while the Respondent
was in Cyprus on a worker's visa. Petitioner and Respondent were married
on November 29, 2000, in Aradippou, Cyprus, and continued to live
together in Cyprus until November 23, 2007. After her marriage to
Petitioner, Respondent had temporary resident status in Cyprus that was
dependent upon Petitioner signing her visa yearly. Petitioner and
Respondent had two children together, Iliana Miltiadous and Achilleas
Miltiadous, born on August 24, 2002, and March 29, 2004, respectively.
The children were born in Cyprus and are Cyprus citizens. At the time
the motion was filed, the children were six and four years old,
respectively. Petitioner and Respondent experienced a violent and
tumultuous relationship throughout their marriage. Petitioner was an
"avid drinker and habitual drug user," and physically and
psychologically abused Respondent "almost throughout the duration of
their marriage." Although Petitioner had never physically harmed the
children, he has "always harassed the children by yelling at them and
threatening them that he would take them away and they would never see
their mother again."
On November 23, 2007, the family departed for a temporary vacation to
visit extended family in the United States. Return airline tickets were
purchased; Petitioner was to return to Cyprus on January 20, 2008, and
Respondent and both children were to return on February 24, 2008. While
the family was visiting Respondent's parents in the United States,
Petitioner's abusive behavior continued. On December 1, 2007, Petitioner
returned to Respondent's parents home drunk and aggressive. Respondent
called the police on December 1, 2007, and Petitioner left to stay with
his cousins in New Jersey. Petitioner was served with a "Notice of
Hearing and Order" for temporary restraints, issued by the Pennsylvania
Court of Common Pleas on December 10, 2007. On December 14, 2007, after
a hearing at which both Petitioner and Respondent were represented by
counsel, Respondent obtained a Protection from Abuse Order from the
Court of Common Pleas in Philadelphia, ordering Petitioner to stay away
from Respondent, granting Respondent sole custody of the children, and
allowing Petitioner weekly supervised visitation rights with the
children. Despite this order, on December 21, 2008, Petitioner called
Respondent and left a threatening voicemail, urging her to stop the
legal proceedings. Thereafter, Respondent called the police and a
warrant was issued for Petitioner's arrest.
Respondent filed for political asylum in the United States on May 9,
2008, seeking permanent asylum for herself and her children due to the
fear of imminent physical and mental abuse by her husband in Cyprus. On
July 22, 2009, Respondent was granted asylum and her children's
immigration status is derived from hers. Respondent and the children
currently resided with her parents in Philadelphia, Pennsylvania.
On November 14, 2008, Petitioner filed an "Application for Assistance
Under the Hague Convention on Child Abduction from Cyprus to the Central
Authority of the United States of America: Request for Return of Child
Under Article 12 of the Convention." In addition, Petitioner was
pursuing legal action in Cyprus for Respondent's retention of the
children in the United States without Petitioner's consent.
The Court pointed out that determination of a child's habitual
residence is a threshold question in deciding a case under the Hague
Convention. (citing Feder v. Evans-Feder, 63 F.3d 217, 222 (3d Cir.1995)
). In determining a child's habitual residence, the Third Circuit
provides, "a child's habitual residence is the place where he or she has
been physically present for an amount of time sufficient for
acclimatization and which has a degree of 'settled purpose' from the
child's perspective .... The determination of whether any particular
place satisfies this standard must focus on the child and consists of an
analysis of the child's circumstances in that place and the parents'
present, shared intentions regarding their child's presence there." This
standard focuses on the parents' shared intentions, the period of time
sufficient for acclimatization and the child's degree of settled
purpose. Harris v. Harris, No. 03-5952, 2003 WL 23162326, at *6 (E.D.Pa.
Dec. 12, 2003).
It also observed that the grave risk of harm affirmative defense,
under Article 13(b) of the Hague Convention, requires proof by clear and
convincing evidence. 42 U.S.C. 11603(e)(2)(A). The Third Circuit
Court of Appeals explained that a grave risk of harm exception
encompasses "situations in which the child faces a real risk of being
hurt, physically or psychologically, as a result of repatriation," but
not "situations where repatriation might cause inconvenience or
hardship, eliminate certain educational or economic opportunities, or
not comport with the child's preferences." In re Application of Adan,
437 F.3d 381, 395 (3d Cir.2006). For the grave risk exception to apply,
the respondent must cite specific evidence of potential harm to the
child upon his return. Baxter, 423 F.3d at 374.
The Court found that the children's habitual residence immediately
prior to their wrongful retention was in Cyprus. Petitioner retained
custody rights despite Pennsylvania's protection order relevant to the
parties in this case. Accordingly, the wrongful detention of the
children in the United States was a violation of the Petitioner's
custody rights. Petitioner was exercising his custody rights at the time
of the children's retention. Petitioner's burden here was minimal. See
Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259, 277 (3d Cir.2007)
("Essentially, nothing short of clear and unequivocal abandonment will
prove that the petitioner failed to exercise his or her custodial
rights."). A Petitioner meets his burden upon a showing that he kept, or
attempted to keep, some sort of regular contact with the child. (citing
Baxter, 423 F.3d at 370). The record was devoid of evidence that
Petitioner failed to exercise his custody rights at any point before the
children were wrongfully retained. The evidence indicated Petitioner was
involved in the daily lives of the children in Cyprus. Also, Petitioner
appeared to have provided the children financial and overall support for
their care. The Court found that Petitioner had shown that Respondent
wrongfully retained the children in the United States, away from their
country of habitual residence-Cyprus.
The Court then pointed out that grave risk defense requires proof by
clear an convincing evidence. 42 U.S.C. 11603(e)(2)(A). This exception
has been held to apply in at least two sets of cases: (1) "when return
of the child puts the child in imminent danger ... e.g., returning the
child to a zone of war, famine, or disease ...;" and (2) "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."
Baxter, 423 F.3d at 373 (citing Friedrich v. Friedrich, 78 F.3d 1060,
1069 (1996)).
The evidence presented demonstrated that returning the children to
Cyprus posed a grave risk of physical or psychological harm to the
children. Petitioner's physical and emotional abuse throughout the
duration of the parents' marriage, the inability of the Cyprus
authorities to protect Respondent from abuse and Iliana's resulting
psychological disorder warranted the grave risk of harm determination.
The Court found that Respondent testified credibly about extensive
physical and emotional abuse she suffered throughout her marriage. She
testified that the Petitioner beat her repeatedly and, at one point,
broke her nose. She testified that she required surgery on her nose
because of this incident. "Spousal abuse ... is a factor [in the
grave-risk inquiry] because of the potential that the abuser will also
abuse the child." Tsarbopoulos v. Tsarbopoulos, 176 F.Supp.2d 1045,
1057-58 (E.D.Wash.2001). Respondent also testified that Petitioner would
drink heavily and become enraged at Respondent and the children.
Respondent testified that Petitioner kept a gun in the house and
threatened to kill her. According to Respondent, Petitioner aimed the
gun on her several times, but did not shoot. Petitioner admitted the two
argued often and that he hit Respondent, but in self-defense. Petitioner
denied abusing Respondent; however, the Court found his testimony to be
not credible. Respondent's testimony was supported by testimony from her
mother, Irene Boritsaya. Ms. Boritsaya testified that, as a result of
her visits to Cyprus with Respondent, she suspected there was
significant spousal abuse in Cyprus. She added that she witnessed the
abuse firsthand while the family was in the United States on vacation.
She testified that at times Petitioner became highly agitated, yelled
and cursed at the family. Ms. Boritsaya testified that Petitioner also
pushed her and threatened to harm her and her family. Respondent's
evidence of spousal abuse compeled a finding that the grave risk of harm
affirmative defense applies here. See, e.g., Van De Sande v. Van De
Sande, 431 F.3d 567, 570 (7th Cir.2005) (reversing order of return where
the father had "beat[en] his wife severely and repeatedly in [the
children's] presence," and also threatened to kill them); Walsh, 221
F.3d at 219-20 (reversing order of return where father was
psychologically abusive and had severely beaten the children's mother in
their presence); Elyashiv v. Elyashiv, 353 F.Supp.2d 394, 398-400
(E.D.N.Y.2005) (refusing return where father frequently hit the
children, threatened to kill his son, and severely abused their mother
in their presence); Rodriguez v. Rodriguez, 33 F.Supp.2d 456, 459-60
(D.Md.1999) (refusing return where child had been belt-whipped, punched,
and kicked, and where the child's mother had been subjected to more
serious attacks, including choking her and breaking her nose).
Respondent also testified that while in Cyprus she was afraid to call
the authorities because she feared the local police, who were well
acquainted with Petitioner, would not help. She testified that she once
called the police and filed a police report. However, she testified that
the Petitioner threatened to "throw her out of [Cyprus]" and she was
forced to recall her complaint. Moreover, Respondent, a Russian citizen,
testified that she has no legal citizenship status in Cyprus and was
uncertain if she had proper legal standing to fight a custody battle
there. Thus, there was evidence that the Cyprus authorities were unable
or would have been unwilling to protect Respondent. See In re Adan, 437
F.3d 381, 397 (3d Cir.2006) (noting that district courts must consider
testimony and evidence regarding the willingness and ability of the
local authorities in habitual residence to protect the parties from
abuse). Respondent testified that her daughter, Iliana, began having
night terrors and wetting the bed as a result of the stress from the
violence she witnessed. The Court heard testimony from Dr. Igor
Davidson, a licensed psychologist, who evaluated Iliana. Dr. Davidson
submitted a report and testified that Iliana suffers from Chronic Post
Traumatic Stress Disorder ("PTSD"). Dr. Davidson's report indicated that
"Iliana was referred for a comprehensive psychological evaluation
following a period of nervousness, unprovoked crying spells, appearing
to be 'in her own world', occasional aggression, fearfulness, nightmares
and avoidance." Dr. Davison concluded that "Iliana's emotional and
psychological problems are founded on the duress she incurred as a
witness to her mother's abuse. It appears that in the present day, this
condition continues to constitute significant personal distress for
Iliana and interfere with adequate social growth with adults and peers."
Dr. Davidson recommended a stable, consistent, structured and safe
family environment. Finally, Dr. Davison warned against Iliana's return
to Cyprus. "A return to Cyprus will subject Iliana to particularly those
persons, places and stimuli which founded her current difficulties and
as such is likely to result in severe psychological and emotional duress
for Iliana[.]" The Court relied on Dr. Davidson's expert opinion that
Iliana is suffering from Chronic PTSD as a result of the family violence
she witnessed in Cyprus. See Danaipour v. McLarey, 286 F.3d 1, 17 (1st
Cir.2002) (explaining that a finding that a child suffers from PTSD and
would deteriorate if returned to the country of habitual residence could
be evidence tending to support a finding of grave risk under Article
13(b)) (citing Blondin v. Dubois, 238 F.3d 153 (2d Cir.2001).); see also
Walsh, 221 F.3d 204, 211-12, Elyashiv, 353 F.Supp.2d at 398-399 (finding
that an expert's opinion that children suffering from PTSD would
deteriorate if returned to country of habitual residence warranted the
application of grave risk of harm affirmative defense). Returning Iliana
to Petitioner's residence would likely expose her to a grave risk of
both physical and psychological harm. This was so, given her witnessing
her father's abuse of their mother and the uprooting from her new home
in the United States to the country where she observed physical and
emotional abuse. This would be coupled with the relapse she would suffer
of her PTSD disorder. In light of the sole, unimpeached and
uncontroverted testimony of Dr. Davison that Iliana's return to Cyprus
would trigger her PTSD, there was no need for the Court to consider
alternative living arrangements or reach out to the Cyprus authorities
for their input. Even though there was no definitive evidence that
Achilleas, the now five-year-old male child of Petitioner and
Respondent, suffered from PTSD, returning him to Cyprus would also
expose him to a grave risk of physical and psychological harm. In
respect to physical harm, Achilleas was not insulated from the
likelihood of future abuse, given Petitioner's inability to control his
temper, his pattern of domestic abuse and his threats. As for
psychological harm, since his sibling, with whom he has lived all of his
life, would remain in the United States, and presumably his mother as
well, a separation from his mother and sibling is likely to cause him
harm. Under the unique facts of the instant case, the Court declined to
consider the challenging prospect of having to determine whether
suitable arrangements by governmental authorities could be arranged for
one, but not both, siblings, requiring their separation.
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