Hague Abduction Stay on Appeal Second Circuit – Rejection of 13(b) Expert

Souratgar v. Fair (S.D.N.Y. 2012)

The Court held:

“Based on the findings of fact, the Court concludes that petitioner has proven by a preponderance of the evidence that (1) the child was a habitual resident of Singapore; (2) the removal of the child from Singapore violated petitioner’s custody rights under the law of Singapore; and (3) that petitioner was exercising these rights at the time of the child’s removal. These are the only required elements he need prove under the Hague Convention.

       The Court concludes that respondent has not proven by clear and convincing evidence her defense under Article 13(b) of the Convention, i.e. that returning the child to Singapore will subject the child to a grave risk of harm.

       The Court also concludes that respondent has not proven by clear and convincing evidence her defense under Article 20 of the Convention, that returning the child is prohibited by the fundamental principles of the United States relating to the protection of human rights and fundamental freedoms.

       Because petitioner has established his case under the Hague Convention and respondent has failed to prove her Article 13(b) and Article 20 defenses, the Convention and the case law cited above require that the petition be granted. The petition is granted.”

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In denying the stay, the Court stated:

“The Court has considered whether to stay its Order pending the hearing and determination of an appeal. For reasons that will be explained, the Court concludes that it would be an improvident exercise of discretion to stay the Order pending appeal.

In leaving Singapore with the child in violation of the Singapore court’s order, the mother traveled from Singapore to Taipai and then booked a separate trip from Taipai to Los Angeles, making it more difficult to uncover her ultimate destination. Once in Los Angeles, she travelled to the community of Red Hook, New York in Dutchess County. Petitioner located the mother and child through the use of private investigators and a bit of luck in matching a social network photo of a relative of the mother featuring a nail salon in the background with photos of nail salons available on the internet. The Court ultimately ordered the U.S. Marshal Service to take the child and turn him over to the father. This, thankfully, was executed peacefully and expertly on November 2, 2012 without significant incident. Based upon the foregoing, as well as the mother’s proven willingness to flaut the orders of the court in Singapore, which led to that court granting the father temporary custody of the child, this Court has ordered the child to remain in the father’s temporary custody with liberal visitation by the mother in locations that are capable of being monitored. The Court has disallowed overnight visits with the mother or visits in locations that cannot be monitored because there is a significant risk that she will flee with the child and avoid detection.”

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On Expedited Appeal, the Second Circuit stayed the return order ” Upon due consideration, it is hereby ORDERED that the motion for stay pending appeal is GRANTED.”

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The Second Circuit affirmed the ruling below, and affirmed the trial court’s rejection of expert terstimony:

“Lee contends that the district court erred in discounting the likelihood that Shayan would be exposed to renewed domestic strife and suffer grievous psychological harm upon his return to Singapore. She also faults the district court for refusing to credit expert testimony characterizing Souratgar as having a coercive and controlling personality type with a tendency to hurt women and children. At the hearing, the district court heard the psychological expert testimony of Dr. B.J. Cling, who described abusive spouses of the “coercive control” type and of the “situational” type and placed Souratgar in the former category. The coercive control type is said to demand domination and control and grows more dangerous upon separation from the victim. On this  basis, Dr. Cling concluded that Souratgar still poses an “extreme danger” to Lee even though they had been estranged for more than a year. Dr. Cling’s assessment of Souratgar was based entirely on Lee’s answers to a survey, which the district court found to contain inaccuracies. The district court therefore discredited Dr. Cling’s conclusions. Our review of the record yields no basis for disagreement with the district court’s finding.5 For us to hold evidence of spousal conflict alone, without a clear and convincing showing of grave risk of harm to the child, to be sufficient to decline repatriation, would unduly broaden the Article 13(b) defense and undermine the central premise of the Convention: that wrongfully removed children be repatriated so that questions over their custody can be decided by courts in the country where they habitually reside. Simcox, 511 F.3d 594 at 604. Our holding today is not that abuse of the kind described by Lee can never entitle a respondent to an Article 13(b) defense; rather it depends on the district court’s finding that Shayan would not be in danger of being exposed to a grave risk of physical or psychological harm and that the Singapore court system has demonstrated its ability to adjudicate the dispute over his custody.

2. Risk of abuse by the father

Lee also contends that Shayan faces a direct risk of harm from his father, who, having been abusive to Lee, is also likely to turn on Shayan. In support of this assertion, amici cite the description of the “coercive control” type in the social science literature that draws certain correlations between perpetrators of spousal abuse and child abuse. However, given the problems with Dr. Cling’s methodology in type-casting Souratgar, the lack of any indicia of ill-will on the part of Souratgar toward Shayan, and contrary credited evidence of a loving father-son relationship, there is no clear and convincing showing in the record that the boy faces a grave risk of harm from his father.”

 

 

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