Return
of child to abuser reversed
By
David Ziemer
Wisconsin Law Journal
Dec.
14, 2005
| What
the court held Case:
Van De Sande v. Van De Sande, No. 05-2831. Issue:
Under ICARA, did the district court properly order a child returned to the jurisdiction
of its habitual residence, even though the abducting mother alleged that the father
had abused her and the children? Holding:
No. An evidentiary hearing must be held to determine if return to the father would
present a grave risk of harm to the other children. |
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.”
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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here for Case Analysis.
David
Ziemer can be reached by email.
