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Souratgar v. Fair

United States Court of Appeals, Second Circuit

June 13, 2013

ABDOLLAH NAGHASH SOURATGAR, Petitioner-Appellee,
v.
LEE JEN FAIR, Respondent-Appellant.

Argued: March 13, 2013

After Lee Jen Fair removed her child from Singapore to New York State in violation of a Singapore court order, Abdollah Naghash Souratgar, the child's father and Lee's husband, filed a petition under the Hague Convention on the Civil Aspects of International Child Abduction for repatriation of the child to Singapore. The United States District Court for the Southern District of New York (Castel, J.) granted the petition.

ROBERT D. ARENSTEIN, Law Offices of Robert D. Arenstein, New York, NY for Petitioner-Appellee.

RANDY M. MASTRO and Jane Kim, Gibson, Dunn & Crutcher LLP, New York, NY and Dorchen A. Leidholdt, Center for Battered Women's Legal Services, Sanctuary for Families, New York, NY for Respondent-Appellant.

JENNIFER BAUM, St. Vincent de Paul Legal Program, Inc., Child Advocacy Clinic, St. John's University School of Law, Jamaica, NY (Jenna M. DiCostanzo and Jennifer R. Kwapisz, St. John's University School of Law on the brief) for Amicus Curiae Guardian ad Litem.

William C. Silverman, Greenberg Traurig, LLP, New York, NY for Amici Curiae Tahirih Justice Center, Asian Pacific American Legal Center, Ayuda, Battered Women's Justice Project, The Central American Resource Center, Greater Boston Legal Services, Immigration & Asylum Clinic of Boston College Law School, Immigration Justice Clinic, John Jay Legal Services, Inc., Inmotion, Inc., Kentucky Coalition for Immigrant and Refugee Rights, Legal Services NYC, National Immigrant Women's Advocacy Project, New York Asian Women's Center, Inc., Philadelphia Legal Assistance, Sexuality & Gender Law Clinic, and Columbia Law School.

Joel Kurtzberg, Mary McCann, and Etienne Barg-Townsend, Cahill Gordon & Reindel LLP, New York, NY and Lynn Hecht Schafran and Elizabeth Grayer, Legal Momentum, New York, NY for Amici Curiae Legal Momentum, Domestic Violence Legal Empowerment Appeals Project, End Violence Against Women International, Iowa Coalition Against Sexual Assault, National Coalition Against Domestic Violence, National Network To End Domestic Violence, New Mexico Coalition of Sexual Assault Programs, Inc., the Pennsylvania Coalition Against Rape, and the Victim Rights Law Center.

Michael R. Lazerwitz, Lewis J. Liman and Kiesha Minyard, Cleary Gottlieb Steen & Hamilton LLP, New York, NY (William F. Gorin, Abigail Fee and Shira A. Kaufman, Cleary Gottlieb Steen & Hamilton LLP, on the brief) for Amici Curiae Dean Jeffrey L. Edleson, Ph.D., Professor Evan Stark, Ph.D., Professor Michelle Madden Dempsey, Ph.D., Dr. Stephanie Brandt, The Child Advocacy Clinic at Columbia Law School, The University of Baltimore Family Law Clinic, and the University of Oregon Domestic Violence Clinic.

Before: WALKER, WESLEY and DRONEY, Circuit Judges.

JOHN M. WALKER, JR., Circuit Judge.

Lee Jen Fair appeals the grant of a petition brought by her husband Abdollah Naghash Souratgar for repatriation of their son from New York to Singapore. In May 2012, Lee removed the boy to Dutchess County, New York, in direct violation of a Singapore court order. The United States District Court for the Southern District of New York (Castel, Judge) granted Souratgar's petition pursuant to the Hague Convention on the Civil Aspects of International Child Abduction ("Convention"), Oct. 25, 1980, T.I.A.S. No. 11, 670, 1343 U.N.T.S. 89, and its implementing statute, the International Child Abduction Remedies Act, 42 U.S.C. §§ 11601-10. Souratgar v. Lee Jen Fair, No. 12 CV 7797 (PKC), 2012 WL 6700214 (S.D.N.Y. Dec. 26, 2012).

The principal issue on appeal is whether Lee's affirmative defenses to repatriation should have prevailed in the district court. We find the district court correctly applied the Convention and affirm its order of repatriation.

I. Background

The boy at the center of this case, now four-year-old Shayan, was born in Singapore in January 2009 to Lee and Souratgar, who are both residents of that country. Souratgar is an Iranian national who has owned a business in Singapore since 1989. Lee is a Malaysian national who worked as an airline attendant, saleswoman, and retail manager in Singapore. She converted to Islam, Souratgar's faith, just prior to their marriage in Singapore in 2007. Shayan is a citizen of Malaysia with Malaysian and Iranian passports.

The parties' marital relationship has been stormy. At the district court hearing, they traded accusations and denials of domestic abuse. Souratgar accused Lee, among other things, of biting him, repeatedly threatening him with a knife and chopper, having suicidal tendencies, and inflicting injuries on herself. Lee asserted in her testimony more serious allegations – that Souratgar repeatedly slapped, beat, shook, and kicked her, and that he forced her to perform sex acts against her will. The district court carefully checked these assertions against the various police reports, medical records, and legal papers entered into evidence and, while it could not verify the most severe claims of abuse and found both parties' testimony to be incredible in certain instances, it did credit the accounts it could corroborate.[1] The district court found spousal abuse by Souratgar, including "shouting and offensive name-calling, " and several incidents of physical abuse in which he "kicked, slapped, grabbed, and hit" Lee.[2] Souratgar, 2012 WL 6700214, at *11.

The district court found no credible evidence of any harm directed against the child. Both parties, despite their acrimonious contest over his custody, acknowledge the other's love for Shayan, and it is not disputed that the boy dearly loves both of his parents.

The district court also found Souratgar and Lee to be intelligent, sophisticated individuals who were able to make use of legal proceedings in Singapore, Malaysia, and the United States. In April 2011, when Shayan was two, Lee filed an ex parte application in the Singapore High Court for sole custody. She cited concern that Souratgar would take Shayan from the country and cut her off from the boy. On May 16, the Subordinate Court of Singapore issued an ex parte order directing Souratgar to hand over Shayan's passports and personal documents to Lee and barring Souratgar from removing the child from Singapore without court approval and Lee's knowledge or consent. Souratgar complied with the order, denied Lee's charges, and cross-applied for sole custody. While the custody proceedings were pending in Singapore, Lee moved out of the marital home with Shayan and refused to disclose their whereabouts to Souratgar. He eventually found them in Malaysia, where Lee denied him access to the boy. ...


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