United States District Court, S.D. New York
CHRISTOPHER E. DAVIES, Petitioner,
SALLY K. DAVIES, Respondent.
OPINION AND ORDER
Vincent L. Briccetti United States District Judge.
Christopher E. Davies seeks an order directing the return of
his son, K.D., to French St. Martin, pursuant to the Hague
Convention on the Civil Aspects of International Child
Abduction (“Hague Convention”), as implemented in
the United States by the International Child Abduction
Remedies Act (“ICARA”), 22 U.S.C. §§
the Court is Mr. Davies's Verified Petition for Return of
the Child to Saint Martin. (Doc. #1).
following reasons, the petition is DENIED.
Court has subject matter jurisdiction pursuant to 22 U.S.C.
§ 9003(a) and 28 U.S.C. § 1331.
Court held a nine-day bench trial on November 14-18, 21-22,
and 28-29, 2016, during which petitioner, respondent, nine
other fact witnesses, and five expert witnesses testified.
Based on that testimony, as well as the parties'
stipulation of undisputed facts (Doc. #36), and the exhibits
received into evidence,  the Court makes the following findings
Sally K. Davies (“Ms. Davies”), was born in
Denmark and raised in New York. She is a citizen of the
United States and the United Kingdom. Petitioner Christopher
E. Davies (“Mr. Davies”) was born in and is a
citizen of the United Kingdom.
Ms. Davies were married on June 10, 2006, in
Croton-on-Hudson, New York. They lived in the Bahamas for the
first few months of their marriage, then moved back to the
United States, where they initially lived with Ms.
Davies's parents in Croton-on-Hudson and then rented
their own apartment in Mount Kisco, New York. In December
2007, the couple moved to Thailand, where they worked as
scuba diving instructors for a few months, before traveling
and working in other international locales for a few
additional months. Then, in June 2008, they moved to the
Caribbean island of St. Martin,  where they purchased a scuba
diving center, Octopus Diving SARL. The parties'
residence was located on the same property as this business.
2012, in French St. Martin, Ms. Davies gave birth to K.D.,
who is the subject of this petition.
December 2014, the parties established a second business,
Octopus Diving SXM, NV, on the Dutch side of the island.
parties lived together with K.D. in Grand Case, French St.
Martin, until July 8, 2016.
July 8-18, 2016, Mr. Davies stayed at a friend's house
and then at a hotel.
18, 2016, Ms. Davies left St. Martin with K.D. for New York,
without Mr. Davies's knowledge or consent. Prior to this,
K.D. never resided anywhere other than French St. Martin. Ms.
Davies and K.D. currently reside at Ms. Davies's
parents' house in Croton-on-Hudson.
Violence and Psychological Abuse
central questions presented here relate to whether and to
what degree Ms. Davies and K.D. were the victims of violence
and psychological abuse at the hands of Mr. Davies. Based on
the evidence adduced at trial, the Court makes the following
findings of fact and credibility determinations.
Davies credibly testified that Mr. Davies did not get along
well with Ms. Davies's family and, as a result, within
the first year of their marriage Ms. Davies's
relationship with her family, and in particular with her
sister, began to deteriorate.
Davies also credibly testified that unbeknownst to her, in
2007, Mr. Davies applied for diving instructor jobs for both
himself and Ms. Davies in Thailand, and when those
applications were accepted, she “felt [she] had no
choice but to go.” (Tr. at 35). Ms. Davies therefore
resigned from her job as a school teacher four months into
the school year.
the parties purchased Octopus Diving in June 2008, they were
both working fulltime running the company. According to Ms.
Davies, this is when their relationship changed. She
testified that Mr. Davies began to “criticize and find
fault in almost everything that I would do concerning the
business, ” from “a typo in an email” to
Mr. Davies's disapproving of the way Ms. Davies
“tied up the lines on the boat, ” or
“taught a scuba class, ” or the way she
“interacted with the employees.” (Tr. at 38). She
testified that Mr. Davies would “berate [her] for long
periods of time . . . sometimes yelling and . . . getting
more and more emotional about it[, a]nd angry about
it.” (Id.). She credibly testified that Mr.
Davies also got mad at small domestic infractions, such as if
she “didn't do the dishes or if the bedroom was
messy or if there were clothes on the floor.”
(Id. at 40). In addition, Mr. Davies began to read
Ms. Davies's private emails during this period, so she
started typing portions of emails in white font so Mr. Davies
would not know what she had written. Ms. Davies also credibly
testified that during this period, she began to have a
feeling of “fuzziness” when Mr. Davies would
berate her. She described this as feeling unable to think
clearly or form complete thoughts, unable to cope, having her
limbs feel “heavy” and her body “shut down,
” and feeling an “overwhelming sadness that just
clouds everything and makes it impossible to function.”
(Id. at 96-97). In addition, Ms. Davies credibly
testified that beginning in 2010, Mr. Davies began to
“throw things and slam doors and punch
doors.” (Id. at 44).
Ms. Davies's Pregnancy
to Ms. Davies, during her pregnancy with K.D. she suffered
from sea sickness when she was out on the scuba diving boats.
Nevertheless, Mr. Davies made her continue to take divers out
on scuba trips because if she did not “pull [her]
weight then [she] would get in trouble with” Mr.
Davies. (Tr. at 58). She credibly testified that when Mr.
Davies got angry during this period, he would scream, throw
things, slam doors, and threaten to fire staff.
Davies also testified that after she became pregnant, the
frequency of Mr. Davies's verbal assaults increased. She
testified “it took him less to get mad . . . [h]e got
mad more often, ” and when he got mad, “he yelled
and screamed for longer.” (Tr. at 60). At least once,
Mr. Davies's anger toward Ms. Davies caused her to
convulse to the point where she feared the baby's health
was in jeopardy.
Davies also became more controlling during this period. Mr.
Davies told Ms. Davies what she could and could not eat;
where she could go; to whom she could talk; and that when
they went out, she had to stand next to Mr. Davies.
Abuse After K.D.'s Birth
Davies credibly testified that after K.D. was born, Mr.
Davies's “verbal attacks became more frequent . . .
more violent . . . lasted for longer[, a]nd it took on
another level.” (Tr. at 82). Mr. Davies's violence
and physical threats also increased. In particular, he would
throw laundry at Ms. Davies, throw glasses, throw tools, and
would scream at her “right in [her] face, ” and
poke her or push her out of the way. (Id. at 82).
addition, Ms. Davies credibly testified that Mr. Davies's
controlling behavior continued after K.D. was born. When Ms.
Davies would go out to dinner with friends, Mr. Davies would
call and text her, and pressure her to leave before the
dinner was done by saying things like “a normal wife
wouldn't stay out this long and you need to come
home.” (Tr. at 99).
examples of this abuse were also provided through testimony
from several non-party witnesses. First, a childhood friend
of Ms. Davies, Helen Roberts, credibly testified about the
parties' relationship and several specific incidents she
witnessed. The Court has considered that Roberts is not an
impartial witness because she is a lifelong friend of Ms.
Davies. However, the Court found Roberts to be credible, and
found her testimony to be consistent with that of Ms. Davies
and several other witnesses at trial.
2013, Roberts traveled to St. Martin with several other
mutual friends for a bachelorette party. Roberts described
Ms. Davies having to leave the celebrations early because Mr.
Davies “ke[pt] calling her and . . . making it
unbearable for her, telling her that she should go home[, ]
making lots of phone calls until she went home, ” and
testified this made Ms. Davies “very upset and . . .
humiliated.” (Tr. at 905-06). In addition, while
Roberts was visiting Mr. and Ms. Davies in St. Martin in
2015, she witnessed Mr. Davies “frequently”
scream and push Ms. Davies out of the way. (Id. at
Lisa Wightman, a family friend, credibly testified regarding
what she perceived to be an “incredibly awkward
moment” when she visited the parties in 2014. (Tr. at
552). Specifically, Ms. Davies was making a chickpea salad
when Mr. Davies came up to her and told her she “was
making it wrong.” (Id.). Mr. Davies had an
“irritated pissed off look” on his face, and took
over making the salad. Ms. Davies “just dropped her
hands to her side and just moved over, ” with “no
comment . . . it was [Mr. Davies] was going to take over and
do this.” (Id.).
witness, Elizabeth Chafin, who worked for Octopus Diving on
the French side of St. Martin from approximately January to
September 2015, and then on the Dutch side for an additional
three to four months, also credibly testified to similar
behavior. Chafin had frequent opportunities to see the
parties interact with one another and with K.D. because the
business was on the same property as the Davies's home.
She said she witnessed Mr. Davies “yelling at [Ms.
Davies], becoming really irate and angry.” (Tr. at
948). She also testified that Mr. Davies is “quite a
bit taller than [Ms. Davies], so a lot of the times, he would
be in her face . . . towering over her, getting red in the
face, and flailing his arms about, just getting really angry,
slamming things” such as “doors . . . equipment .
. . things around the shop, [such as] papers.”
(Id.). According to Chafin, these outbursts resulted
from “normal business interactions.”
(Id.). Chafin described the demeaning and insulting
nature of the things Mr. Davies would say, such as telling
Ms. Davies that what she was doing was “so easy a
monkey could do it.” (Id. at 949). And she
testified these interactions were frequent.
to respond to the angry outbursts directed at her during this
period, Ms. Davies became “hypervigilant” about
meeting Mr. Davies's needs and desires. (Tr. at 96). She
also again described feeling “fuzzy” after Mr.
Davies would yell at her. (Id.).
Violence Directed at K.D.
Davies credibly testified that when K.D. was a baby, Mr.
Davies frequently grabbed K.D. from Ms. Davies's arms,
screamed at him, and called him names, like “ignorant
piece of shit” and “spoiled brat.” (Tr. at
103). Ms. Davies also testified that Mr. Davies wanted
“respect” from K.D. and would yell at him when
K.D. would be the slightest bit obstinate. (Id. at
102). She testified that “a lot of the things that [Mr.
Davies] was doing to [her] [she] could see that he was doing
to K.D.” (Id.).
Davies also credibly testified regarding numerous incidents
of aggressive overreaction by Mr. Davies toward K.D., or
toward Ms. Davies in front of K.D., because of something K.D.
had done. For example, on at least one occasion, Mr. Davies
slammed on the car brakes when K.D. refused to put on his
seatbelt or yelled in the car, causing K.D. to lurch forward.
Also, Mr. Davies once snatched a toy car from K.D. because he
was rolling the car on the hood of Mr. Davies's truck,
and then screamed at Ms. Davies in front of K.D. because Ms.
Davies “didn't react fast enough to stop [K.D.]
from doing it.” (Tr. at 332). In June 2016, when K.D.
accidentally knocked over Mr. Davies's beer, Mr. Davies
“hurl[ed] the beer across the room, ” and threw
his phone. (Tr. at 590).
Davies also credibly testified that K.D. was frequently
present and witnessed Mr. Davies's violent behavior. She
described K.D. witnessing Mr. Davies throw their puppy across
the room, breaking the puppy's leg. Mr. Davies frequently
screamed at Ms. Davies while she was holding K.D. in her
arms, and “would sometimes grab K.D. from [her] arms
and rip him away” from her. (Tr. at 84). She testified
she became concerned for K.D.'s safety.
Davies also credibly testified that Mr. Davies
“scream[ed] in her face” on one occasion
“because K.D. wanted to sleep with [Ms. Davies].”
(Tr. at 333). Ms. Davies also described an incident during
which Mr. Davies slapped K.D. on the behind, leaving a hand
print. In addition, Mr. Davies threw one of K.D.'s toys
across the room, where it hit a wall, upsetting K.D. An
argument ensued between Mr. Davies and Ms. Davies in their
bedroom. K.D. came to the room, but Mr. Davies pushed him
forcefully out of the room and slammed the door.
Davies also presented credible corroborating evidence of Mr.
Davies's inappropriate behavior towards K.D. For example,
Helen Roberts testified that during her visit to St. Martin
in 2013, she witnessed Mr. Davies “grab [K.D.] from
his highchair and scream at him for throwing food on the
floor, ” causing K.D. to cry and get “really
upset.” (Tr. at 906). Roberts also described witnessing
Mr. Davies scream at Ms. Davies “right in her face,
” during an incident in January 2015, while K.D. was in
Ms. Davies's arms. (Id. at 907). According to
Roberts, Mr. Davies also yelled at Ms. Davies because she
left a glass on an outdoor table.
also described Mr. Davies yelling at Ms. Davies in front of
K.D. while Ms. Davies folded laundry, some of which was on
the floor. Roberts testified that Mr. Davies “pick[ed]
up the laundry and thr[e]w it at her face.” (Tr. at
907). She said K.D. hid behind a chair while this took place.
addition, Roberts testified that during her visit to St.
Martin in 2015, she observed Mr. Davies get mad at K.D. for
not using his “inside voice, ” and “grabbed
K.D. from [Ms. Davies's] arms and shouted at him, and
then he sort of thrust . . . him back into [Ms. Davies's]
arms so hard that she . . . had to step back to brace
herself.” (Tr. at 908).
Elizabeth Chafin testified that in 2015, she witnessed Mr.
Davies get angry at K.D. on numerous occasions. She testified
Mr. Davies's response to normal child behavior was
“pretty disproportionate to whatever it was that was
going on.” (Tr. at 950). He would “get angry and
yell, sometimes . . . grabbing K.D. out of [Ms. Davies's]
hands, going into the house and slamming the door.”
(Id.). Also, Mr. Davies would often be upset about
something unrelated to K.D. and misdirect his anger at K.D.
Chafin described incidents like this one as being
“run-of-the-mill.” (Id. at 952). Chafin
said K.D. would react to these outbursts by crying, yelling
back, or “sometimes . . . just get[ting] really quiet
and shut[ing] down.” (Id. at 950). Chafin also
testified that on a couple of occasions when Mr. Davies acted
violently towards Ms. Davies in front of K.D., K.D. stepped
between his parents and said things like, “no more
yelling, daddy, daddy, stop yelling at mommy.”
(Id. at 949).
Violence Towards Others
Davies's treatment of others lends further support to the
Court's conclusion that he has an uncontrollable temper,
serious anger issues, and a willingness to take the law into
his own hands when he feels it necessary.
Lisa Wightman recounted an incident in 2011, during which Mr.
Davies became enraged at an individual driving a vehicle
behind the one occupied by Wightman, her family, and the
Davies family. When they arrived at their destination, Mr.
Davies noticed the vehicle belonging to the individual with
whom he had become angry parked in the same parking lot.
Wightman testified that while she, her husband, and several
of their children were nearby, she witnessed Mr. Davies take
his keys out of his pocket and go “from the back of the
truck all the way up to the front of it and stuck [the key]
into the side of the man's vehicle, ” creating a
“visible scratch.” (Tr. at 548-49). Wightman said
Mr. Davies laughed after he had Dated this.
also described watching Mr. Davies get extremely angry at a
female employee in front of Wightman and her children in
2012. According to Wightman, Mr. Davies “started
swearing, ” his “hands started flailing, ”
and his “face turned red.” (Tr. at 550). Wightman
testified “there was always something that happened
that pissed [Mr. Davies] off, ” and there were moments
she “felt [so] uncomfortable . . . that [she] would
actually grab [her husband's] knee and squeeze.”
(Id. at 551). Wightman testified she observed Ms.
Davies “shrink back” and “go inside
herself” in reaction to Mr. Davies's angry
outbursts. (Id. at 553).
Roberts testified she witnessed Mr. Davies “get really
angry and scream and shout around other people on the road .
. . [and] [c]all them names.” (Tr. at 908). She said
this happened “the majority of times” she was a
passenger in a car being driven by Mr. Davies, and that K.D.
was present during at least some of these occasions.
(Id. at 909).
also testified regarding a time when Mr. Davies learned he
had bought a boat from someone who was not the boat's
owner, and Mr. Davies stated in front of Roberts, her
husband, Ms. Davies, and K.D. that he “was going to get
his boys to deal with it and have the guy's shit kicked
out of him or even killed to remedy the situation.”
(Tr. at 909). K.D. was sitting on Ms. Davies's lap when
Mr. Davies made these threats.
Chafin credibly testified regarding inappropriate behavior on
the part of Mr. Davies directed toward Chafin and her
boyfriend. After a disagreement she had with Ms. Davies
regarding a diving-related emergency, Mr. Davies called
Chafin on the phone and screamed and yelled at her. Mr.
Davies threatened to injure Chafin's boyfriend, and she
found the experience “pretty terrifying.” She was
so “scared for [her] own safety and for that of [her]
boyfriend, ” that they chose to stay with friends for
the remainder of their time on St. Martin because Mr. Davies
“kn[ew] where [Chafin and her boyfriend] lived.”
(Tr. at 951).
Thorpe, an employee of Octopus Diving from April to July
2016, credibly testified that after Ms. Davies left St.
Martin, he witnessed Mr. Davies kick one of their dogs
causing the dog to fly six to eight feet in the air.
cross-examination, Mr. Davies was confronted with emails he
had sent containing explicit threats of violence against
others. In one email, dated May 7, 2012, Mr. Davies told Ms.
Davies that their employee, Sven, should “look over his
shoulder every five minutes wondering who's going to beat
the fuck out of him.” (Tr. at 1233). About one customer
who left a bad review about Octopus Diving on TripAdvisor, he
emailed Ms. Davies on February 6, 2012, “the point is
that this cunt came here with one intent, to fuck us. So eye
for an eye, tooth for a tooth, I'm coming for ya. He will
pay.” (Id. at 1239).
Mr. Davies presented very little evidence to counter that
presented by Ms. Davies. He called Angie Witteveen, a
current employee of Octopus Diving, who testified
she never witnessed the parties argue and never witnessed Mr.
Davies act inappropriately toward K.D. The Court found this
witness credible, but found her testimony of limited
probative value. In particular, Witteveen works on the Dutch
side of the business, so she had fewer opportunities to
observe the parties together and with K.D. Also, she has an
interest in keeping her current job with Mr. Davies, so while
the Court credits her testimony, it nonetheless notes she has
a personal reason for testifying on Mr. Davies's behalf.
Davies also called Delphine Stervinou, who is the director of
the school K.D. attended in St. Martin. She testified she
observed Mr. Davies come regularly either to drop K.D. off at
school or to pick him up from school. She testified K.D. was
glad to see both of his parents when one or the other picked
him up from school. However, she also testified she had very
limited interaction with the parents; she was not K.D.'s
teacher and she did not see either party or K.D. outside the
confines of the school. Therefore, although Stervinou was a
credible witness, her testimony was of very limited probative
value on the issues central to this case.
same is true of Josette Sanon, the parties' housekeeper
and babysitter whom Mr. Davies also called as a witness at
trial. She testified she did not see anything troubling about
the interactions between Mr. Davies and either Ms. Davies or
K.D. However, her observations of interactions between the
parties were limited. When asked whether she ever heard Mr.
Davies yell under any circumstances, she responded,
“No, because he was not at home very often. He leaves
early and he comes back late.” (Tr. at 1035). Sanon
said she did not see any bruising on either K.D. or Ms.
Davies, but that is also of limited relevance, as the
allegations of abuse here are primarily psychological in
nature. Accordingly, the Court accepts Sanon's testimony
as substantially true, but does not find it to be
the parties stipulated regarding what Richard J. Torrisi
would have said had he been called to testify at trial.
Torrisi supervised a visitation between Mr. Davies and K.D.
that took place in and around Croton-on-Hudson on November
19, 2016 (during the trial of this case). Among other things,
Torrisi observed Mr. Davies “show[ing] a lot of
patience in helping K.D.” assemble a toy truck, and
observed K.D. tell Mr. Davies he wanted to return to St.
Martin, and cry when he was being returned to his
mother's care after the visitation. (PX 64). The Court
finds this testimony ...