Return of child to abuser reversed

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The Seventh Circuit on Dec. 7 held that, under the “grave risk exception” to the International Child Abduction Remedies Act (ICARA), a child should not be returned to a foreign country unless the court is satisfied that the children will be protected if returned to their abuser’s custody.

Davy and Jennifer Van De Sande were married in 1999, have two children, and are habitual residents of Belgium, Davy’s native country. In 2004, while visiting Jennifer’s parents in the United States, Jennifer told Davy that she and the children would not return to Belgium.

Davy threatened to kill them all, and police escorted Davy from the house.

Davy returned to Belgium, and obtained an ex parte order from a Belgian court awarding him custody of the children. Davy then brought suit under ICARA in Illinois federal court, petitioning for return of the children.

In response, Jennifer presented affidavits from herself and five others, describing the domestic violence to which she was subjected. The affidavits also stated that the abuse occurred in front of the children and that the couple’s daughter was abused by both Davy and Davy’s mother.

The district judge ruled in favor of Davy, finding that most of the abuse was directed at Jennifer, rather than the children, the couple’s son was not abused at all, and that, while the girl was spanked and hit repeatedly, she was not injured. In addition, Jennifer presented no expert evidence of the psychological effect of Davy’s conduct on either child.

Jennifer appealed, and the Seventh Circuit reversed in a decision by Judge Richard A. Posner.

The court concluded that, if the affidavits submitted by Jennifer are accurate, Jennifer satisfied the statutory requirement that she present clear and convicting evidence of a grave risk of harm.

The court concluded, “The judge inexplicably gave no weight to Davy’s threat to kill the children. Perhaps, standing alone, such a threat could be discounted as an emotional reaction to the prospect of losing custody of them. But given Davy’s propensity for violence, and the grotesque disregard for the children’s welfare that he displayed by beating his wife severely and repeatedly in their presence and hurling obscene epithets at her also in their presence, it would be irresponsible to think the risk to the children less than grave. The probability that Davy, or his mother, another person of violent temper (if the affidavits are true), would some day lose control and inflict actual physical injury on the children (or at least on the daughter) could not be thought negligible.”

The court acknowledged holdings by other circuits that the law is just a venue statute, to deter parents from engaging in “international forum shopping in custody cases.”

Still other circuits have concluded that the question is not what the risk to the children might be in a jurisdiction that had no laws for the protection of children, but merely whether the jurisdiction of residence has adequate laws.

The court rejected both approaches, however, explaining, “There is a difference between the law on the books and the law as it is actually applied, and nowhere is the difference as great as in domestic relations. … 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.”

The court added, “To define the issue not as whether there is a grave risk of harm, but as whether the lawful custodian’s country has good laws or even as whether it both has and zealously enforces such laws, disregards the language of the Convention and its implementing statute; for they say nothing about the laws in the petitioning parent’s country. … 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.”

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The court also suggested that it is unrealistic to order the children returned, upon condition that the children be kept out of the custody of the abusing parent until the merits of the custody dispute could be resolved by a court in the
abusive parent’s country. The court found this would result in the children being placed in foster care, although there is no allegation that Jennifer is an unfit parent.

Accordingly, the court concluded, “Concern with comity among nations argues for a narrow interpretation of the ‘grave risk of harm’ defense; but the safety of children is paramount. Jennifer presented at the summary judgment stage sufficient evidence of a grave risk of harm to her children, and the adequacy of conditions that would protect the children if they were returned to their father’s country is sufficiently in doubt, to necessitate an evidentiary hearing in order to explore these issues fully. The hearing should be held promptly and conducted expeditiously in order to comply with the Convention’s goal of expediting the return of abducted children to their country of habitual residence, provided that the return will not expose the children to a grave risk of harm (citations omitted).”

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David Ziemer can be reached by email.