J. Baer, New York, for appellant.
Offices of Randall S. Carmel, Syosset (Randall S. Carmel of
counsel), for respondent.
S. Bachner, Jamaica, attorney for the children.
J.P., Sweeny, Andrias, Moskowitz, JJ.
Family Court, Bronx County (Llinet M. Rosado, J.), entered on
or about June 15, 2016, as amended July 8, 2016, which, after
a hearing, granted petitioner father's petition to direct
respondent mother to return the parties' two minor
children to Norway, unanimously reversed, on the law and the
facts, without costs, the petition denied, and the proceeding
a citizen of Norway, and respondent, a United States citizen,
were married in New York in 2009, and their two children were
born in Norway in 2010 and 2012. The family lived in Norway
and also spent months at a time living in the maternal
grandmother's apartment in New York. In 2013, after the
mother was directed to leave Norway, the parties sold much of
their personal property and their car, and went to the
Dominican Republic, where they stayed for several months,
from September 2013 until January 2014. They then went to New
York and stayed with the maternal grandmother. At some time
in or about March 2014, the father returned to Norway to look
for an apartment and job, with the expectation that the
mother would follow with the children. In court, the parties
both confirmed their understanding that the mother would
return to Norway with the children when he was settled.
However, the mother testified that, following a long history
of domestic violence, including a choking incident in
February 2014 where the police were called and issued an NYPD
Domestic Incident Report, she determined not to return to
Norway and told the father she would not return. In April
2015, the father filed a petition for the return of the
children pursuant to the Hague Convention on the Civil
Aspects of International Child Abduction (1343 UNTS 89, TIAS
No. 11670 ) and its domestic implementing legislation,
the International Child Abduction Remedies Act (22 USC
§§ 9001-9011). A parent bringing such a petition
must demonstrate by a "preponderance of the
evidence" that the child has been "wrongfully
removed or retained" from her country of "habitual
residence" (22 USC § 9003[e][A]; Mota v
Castillo, 692 F.3d 108, 112 [2d Cir 2012]).
Nevertheless, a petition will be denied if the parent
opposing return of a child establishes "by clear and
convincing evidence" the exception set forth in article
13b of the Convention (22 USC § 9003[e][A]) - namely,
that "there is a grave risk that [the child's]
return would expose the child to physical or psychological
harm or otherwise place the child in an intolerable
situation" (Hague Convention art 13[b]).
determination of a child's "habitual residence"
requires inquiry into the "shared intent" of the
parents "at the latest time that their intent was
shared, " taking into account the parents'
"actions [and] declarations, " as well as
"whether the evidence unequivocally points to the
conclusion that the child has acclimatized to the new
location and thus has acquired a new habitual residence,
notwithstanding any conflict with the parents' latest
shared intent" (Mota, 692 F.3d at 112, quoting
Gitter v Gitter, 396 F.3d 124, 134 [2d Cir 2005]).
the record supports Family Court's determination that the
parties' last shared intent was to return to Norway, the
court did not consider the mother's evidence that the
children had been acclimatized to New York, and whether that
evidence trumped the parents' shared intent (see
id.; see also Hofmann v Sender, 716 F.3d 282');">716 F.3d 282
[2d Cir 2013]).
not remand for this purpose, however, because we conclude
that the mother met her burden to show, by clear and
convincing evidence, that the children's return to Norway
would result in a grave risk of harm to them (see
Hague Convention art 13[b]; 22 USC § 9003[e][A];
Blondin v Dubois, 189 F.3d 240, 245 [2d Cir 1999]).
The mother presented detailed testimony of multiple acts of
domestic abuse towards her by the father, at times in the
presence of the parties' children. She also presented
corroborating evidence, including the testimony of the
maternal grandmother, who witnessed two of the violent
incidents, including the February 2014 incident, and
testified to visible signs of injury to her daughter, which
was also noted in the Domestic Incident Report. The mother
also submitted copies of text messages sent by the father
threatening the mother's life. She further showed that
the father had a propensity for violent abuse, as
demonstrated by his violent acts, jealous rages, and, on at
least two instances, forceful treatment toward the older
daughter (see Ermini v Vittori, 758 F.3d 153,
164-165 [2d Cir 2014]; Souratgar v Lee, 720 F.3d 96,
104 [2d Cir 2013]; Blondin, 189 F.3d at 247). The
mother presented evidence that the nature of the abuse was
such that it would inevitably resume if the parties were
reunited. The father acknowledged that the parties fought
over the mother's infidelity, but broadly denied the
mother's claims, other than admitting to pushing or
grabbing the mother to restrain her. His testimony, however,
was entirely uncorroborated.
mother further presented evidence that, as a noncitizen of
Norway, there would be minimal, if any, domestic violence
resources available to her if she were to move there with the
children, and that, due to her immigration ...