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In Rial v Rijo, 2010 WL 1643995 (S.D.N.Y.)
Petitioner and respondent moved to Spain in May 2005, two months after
the birth of their daughter, D.R., who was the subject of this dispute.
After being subjected to an abusive incident with Mr. Rial in December
of 2009, Ms. Rijo decided that it was in her and her child's best
interests to leave him and she absconded with D.R. to her family's
residence in New York. Mr. Rial then brought an action seeking the
return of D.R. to Spain for custody proceedings. The district court
noted that a court determining habitual residence asks the following
questions. First, what was "the shared intent of those entitled to fix
the child's residence (usually the parents) at the latest time their
intent was shared? In
making this determination the court should look, as always in
determining intent, at actions as well as declarations." Second, does
"the evidence unequivocally point to the conclusion that the child has
acclimatized to the new location and thus has acquired a new habitual
residence, notwithstanding any conflict with the parents' latest shared
intent? (Citing Gitter v. Gitter, 396 F.3d 124, 134 (2d Cir.2005)..
Although intent is important, the facts of a child's residence may be
undeniable: if at the relevant moment, a person has been living in one
country ... for a sufficiently long period" "questions as to the purpose
of the residence become irrelevant." Gitter, 396 F.3d at 12. The Court
found that D.R.'s habitual residence was Spain. The couple moved her to
Spain when she was just two months old, and although they may have
intended to someday return to the US, they never did. The life they
planned in America was a future that year by year receded before them:
they bought a house, then enrolled D.R. in school, then Ms. Rijo herself
enrolled in school, then she applied for Spanish Citizenship. And as
time passed, D.R. came to be a Spanish-speaking five-year-old who had
lived her entire life in Spain and knew nothing else. D.R. lived two
months in the United States, then fifty-four in Spain.
Respondent objected to the petition because she
contended that D.R. faced a grave risk of physical or psychological harm
should she be returned to Spain. The district court pointed out that the
risk of harm necessary to support a 13(b) defense is "grave, not merely
serious." (Citing Friedrich v. Friedrich, 78 F.3d 1060, 1068 (6th
Cir.1996). The Second Circuit has explained that the defense applies "in
cases of serious abuse or neglect, or extraordinary emotional
dependence." (Citing Blondin v. Dubois, 238 F.3d 153, 162 (2d Cir.2001).
The evidence demonstrated that petitioner had been a verbally, and
sometimes physically, abusive husband to Ms. Rijo. Ms. Rijo has
testified that he frequently shouted at her, lost his temper, chastised
her in front of others, and even said he would kill her. On a few
occasions this abuse became somewhat physical: he would sometimes push
her as he passed her in the house, or would "drag her" between rooms.
D.R. was present for at least some of this abuse. While this level of
abuse is less frequent and less severe than in other 13(b) cases, D.R.'s
emotional dependence on Ms. Rijo was great and in the opinion of
respondent's
expert, Dr. Fixman, D.R.'s return to Spain in the sole custody of her
father "would really put the child at very serious, serious risk." The
Court understood Dr. Fixman's opinion to be a professional opinion that
persuaded the Court that the psychological trauma for D.R. would indeed
be grave if she were separated from her mother. The Court explained that
the 'grave risk' exception considers, inter alia, where and how a child
is to be returned." The Second Circuit has recognized the availability
of undertakings, or promises by the petitioning parent, "to alleviate
specific dangers that might otherwise justify denial of the return
petition."
Blondin v. Dubois, 238 F.3d 153, n. 8 (2d Cir.2000). Petitioner agreed
to a number of undertakings that the Court believed would ensure D.R.'s
safe and speedy return to Spain. Petitioner has agreed to rent an
apartment in the center of town for six months, where both respondent
and D.R. could feel secure upon their return to Spain. Petitioner agreed
not to press charges against Ms. Rijo for the abduction, and to pursue
the dismissal of any charges that may have been brought. In addition,
petitioner agreed to pay child support in the amount of 500 euros/month
for three months or until a Spanish court enters an order regarding
support,
whichever occurs earliest. The parties were to make arrangements for D.R.
to spend ample time with her father once in Spain, or, failing
agreement, as the Spanish court may order. Based on these undertakings
and conditions, the Court found that the risk of harm to D.R. was not
grave and granted Mr. Rial's removal request. |
