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In Van De Sande v. Van De Sande, 431 F.3d 567
(7th Cir., 2005) the Seventh Circuit noted that
although Jennifer submitted affidavits setting forth the circumstances
that she contended create such a risk, the district court granted
summary judgment for Davy, primarily on the ground that there was no
indication that the Belgian legal system cannot or will not protect the
children. Jennifer presented six affidavits--two by her and one each by
her father, her mother, her brother, and a friend. According to them
Davy began beating Jennifer shortly after their marriage in 1999. The
beatings were frequent and serious. For example, when she was seven
months pregnant with their first child, Davy slammed Jennifer's head
against a wall, choked her, and pushed her toward the top of a flight of
stairs, threatening to topple her down them. The beatings, which
typically consisted of choking Jennifer, throwing her against a wall,
and kicking her in the shins, and occurred several times a week
throughout the marriage whenever the two of them were together,
continued when they moved from the United States to Belgium. Davy's
mother joined in beating her daughter-in-law. She complained several
times to the Belgian police, but they said they could do nothing unless
she went to a doctor to verify her injuries; and she did not do that.
Davy's beatings of Jennifer continued after the two children were born,
and were often done in their presence, which caused them to cry. The
older child (born in August 2000, so 4 years old when her mother refused
to return to Belgium in October 2004) would tell her father to stop, but
without success. Physical abuse of the daughter by her father began when
she started wetting her bed. He would spank her, and once when Jennifer
entered the girl's bedroom and told Davy to stop beating their daughter
he grabbed Jennifer by the throat and shoved her out of the room. Once
he struck the daughter a sharp blow to the side of her head. His mother
(the daughter's grandmother) struck the daughter in the head at least
twice. Davy also abused Jennifer verbally in the children's presence.
The Court of Appeals stated that if the affidavits submitted by Jennifer
were accurate Jennifer satisfied the statutory requirement that her
evidence of risk of harm to the children be clear and convincing. The
Court stated that to give a father custody of children who are at great
risk of harm from him, on the ground that they will be protected by the
police of the father's country, would be to act on an unrealistic
premise. The rendering court must satisfy itself that the children will
in fact, and not just in legal theory, be protected if returned to their
abuser's custody. If handing over custody of a child to an abusive
parent creates a grave risk of harm to the child, in the sense that the
parent may with some nonnegligible probability injure the child, the
child should not be handed over, however severely the law of the
parent's country might punish such behavior. In such a case, any order
divesting the abducting parent of custody would have to be conditioned
on the child's being kept out of the custody of the abusing parent until
the merits of the custody dispute between the parents could be resolved
by the court in the abusive parent's country. At argument Davy's lawyer
was willing to entertain the possibility that the district judge should
have imposed such a condition on the order returning the children to
Davy in Belgium. This concession alone required that it remand the case
to the district court for further consideration, for 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, as an alternative to refusing to
return the child, will not always do the trick. Return plus conditions
("undertakings") can in some cases properly accommodate the interest in
the child's welfare to the interests of the country of the child's
habitual residence. But in cases of child abuse the balance may shift
against return plus conditions. In a comment on "undertakings" the State
Department has advised that "if the requested ... court is presented
with unequivocal evidence that return would cause the child a 'grave
risk' of physical or psychological harm, ... then it would seem less
appropriate for the court to enter extensive undertakings than to deny
the return request. The development of extensive undertakings in such a
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." The court added 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 abusive2."
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