Opinion
V-15193-15
07-08-2016
O.A.,Petitioner, v. D.B., Respondent.
For the Petitioner: Enrique Benitez II The Benitez Firm, PLLC 75 S Broadway, Floor 4 White Plains, NY 10601 (914) 861-5161 For the Respondent: Goetz L. Vilsaint Law Office Of Goetz L. Vilsaint 930 Grand Concourse Suite 1B Bronx, NY 10451 (718) 293-2941 Attorney for the Subject Children: Janette Cortes-Gomez 930 Grand Concourse, Suite 1B Bronx, NY 10451 (718) 402-2245
For the Petitioner: Enrique Benitez II The Benitez Firm, PLLC 75 S Broadway, Floor 4 White Plains, NY 10601 (914) 861-5161 For the Respondent: Goetz L. Vilsaint Law Office Of Goetz L. Vilsaint 930 Grand Concourse Suite 1B Bronx, NY 10451 (718) 293-2941 Attorney for the Subject Children: Janette Cortes-Gomez 930 Grand Concourse, Suite 1B Bronx, NY 10451 (718) 402-2245 Llinet M. Rosado, J.
Petitioner Father, O.A., a Norwegian citizen, petitions this Court for the return of his daughters, D.A.P. and D.P. (hereinafter the "subject children"), to Norway. The petition is brought pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (1343 UNTS 89, TIAS No. 11, 670, 1343 [1980]) (hereinafter the "Hague Convention"), and its domestic implementing legislation, the International Child Abduction Remedies Act, 42 USC §§ 11601 (hereinafter "ICARA"). Respondent mother, D.B., an American citizen, opposes the petition and states that a return of the family to Norway will subject the subject children to a grave risk of harm. The parties are married.
Petitioner was assigned Enrique Benitez, Esq., as his attorney and respondent was assigned Dana Stricker, Esq., as her attorney. Subsequently, respondent retained Goetz Vilsaint, Esq., as her attorney and Ms. Stricker was thereby relieved. Towards the end of this proceeding, Mr. Vilsaint made an application to be assigned as an 18b attorney on the ground that respondent could no longer afford to pay him. The Court granted said application in the interest of justice and without objection from any of the attorneys. The Court appointed an attorney for the subject children, Janette Cortes-Gomez, Esq., who initially did not have a position but subsequently did not support the return of the subject children under the Hague Convention.
On April 24, 2015, shortly after the petitioner learned that respondent was not returning to Norway with the subject children, petitioner filed the instant petition.
The petitioner contends that: respondent wrongfully retained the subject children in the United States; prior to the wrongful retention, Norway was the subject children's habitual residence; retention of the subject children in the United States is a breach of custody rights under Norwegian law; petitioner was exercising custody rights at the time of the wrongful retention; and a return of the subject children to Norway will not subject the subject children to grave risk of harm.
Respondent argues that a return of the family to Norway will subject the subject children to a grave risk of harm because of the repeated domestic violence petitioner inflicted upon respondent. Respondent also alleges that some of the said domestic violence incidents occurred in the presence of the eldest subject child. Respondent also argues that it is not in the subject children's best interests to be returned to Norway.
The Court held a hearing to determine whether any of the limited exceptions or defenses to the Hague Convention can be established by the Respondent. Said hearing was held on October 14, 2015; November 16, 2015; November 23, 2015; December 2, 2015; December 10, 2015; January 8, 2016; January 21, 2016; February 9, 2016; February 10, 2016; March 14, 2016; March 16, 2016; March 30, 2016; and April 11, 2016. The Court held an in camara of the subject children on March 23, 2016. The Court heard testimony from fact witnesses including: (1) petitioner; (2) respondent; (3) petitioner's mother, Ms. M; and (4) Ms. C, a case manager retained by the respondent. The Court allowed petitioner and his Norwegian attorney, Mr. Bjorn Stefanussen, to appear at the hearing via video hook-up from Norway.
While the Court is aware of the statutory time frame by which a Hague hearing needs to be concluded, several factors made it impossible to adhere to said time frame. The case was initially transferred from New York County Family Court to Bronx Family Court. It took time for this Court to obtain the court file. Once the Court obtained the file, the Court assigned attorneys to both parties and gave the attorneys an opportunity to confer with their clients. Subsequently, respondent's attorney filed a motion and the Court had to render a decision on said motion. Respondent then retained a private attorney who needed an opportunity to familiarize himself with the case. Afterwards, the Court needed to set up the video hook-up equipment in order to allow petitioner to appear in the proceeding from Norway. The Court also assigned the subject children an attorney, who needed to meet her clients and familiarize herself with the matter. On one appearance, respondent brought her witness and one of the subject children to court. However, the children's center was closed that day and the Court could not proceed with the subject child present in the court room. On two appearances, the petitioner did not appear because he was sick. Malfunctions with the video hook-up; coordinating dates and times between all attorneys; communicating with other courts; and the difference in time between the two countries presented unique challenges to this Court's efforts to expeditiously conduct the hearing on the instant petition. Given said challenges, it was not possible to resolve the instant petition within six weeks of filing. Hague Convention, Article 11.
The Court is cognizant of the tremendous amount of time, effort and resources expended by all counsel, including Mr. Bjorn Steffanussen, who appeared with the petitioner via video hook-up for every appearance; and the Court's staff to date. The Court also thanks the litigants for their patience during all the video hook-up malfunctions. Finally, the Court expresses its appreciation to all those involved in enabling the Court to conduct the instant hearing especially the staff of Bronx Family Court.
Based upon the record as a whole and this Court's assessment of the credibility of the witnesses, the Court finds that the petitioner has established, by a preponderance of the evidence, each required element under the Hague Convention. Specifically, petitioner established that the subject children were habitual residents of Norway; that the subject children's removal was in breach of petitioner's custody rights; and that petitioner was exercising those rights at the time of the subject children's removal. In contrast, the Court finds that respondent has failed to prove by clear and convincing evidence of her affirmative defense. Specifically, respondent failed to establish that the subject children will be subjected to a grave risk of harm, psychologically or physically, if they return to Norway.
BACKGROUND
The parties met in the Dominican Republic while they were both on vacation in Santo Domingo in 2007-2008. (1/21/16 Tr. 45). At that time, petitioner was living in Norway and the respondent was living in the Bronx. (11/23/15 Tr. 38). The parties began a relationship and were married in New York City in 2009. (11/23/15 Tr. 30). Petitioner is a citizen of Norway and his entry into this country was barred once during the instant proceeding. The respondent is a citizen of the United States. The first child, D.A.P., was born in Norway on January 29, 2010 and the second child, D.P., was born in Norway on November 4, 2012. The parties lived in Norway but traveled to the maternal relatives in New York City several times and went to the Dominican Republic once, always returning to their habitual residence in Norway. (12/10/15 Tr. 26-27); (1/8/16 Tr. 10). The parties and the subject children traveled to New York City on vacation on or about the winter of 2013-2014. (11/23/15 Tr. 39); (12/10/15 Tr. 27). Petitioner returned to Norway to look for work on or about March of 2014. (12/10/15 Tr. 27, 29). The respondent was to follow with the subject children thereafter. On or about April of 2014, respondent informed petitioner she would not be returning to Norway with the subject children. (3/22/16 Tr. 22). The petitioner filed the instant petition.
Petitioner attempted to enter the United States on October 19, 2015 but was not allowed entry.
DISCUSSION
Wrongful Removal: Petitioner's prima facie case under the Hague Convention
Petitioner argues that the parties are married and under Norwegian law the parties have joint parental responsibility for the subject children and must provide consent to the subject children moving abroad. Petitioner contends he never consented to the subject children's permanent relocation to the United States and that the subject children should be repatriated to Norway because the petitioner filed for return of the subject children to Norway within a year, as required by the Hague Convention.
Article 12 of the Hague Convention states, "when a child is wrongfully removed or retained, the Contracting State shall order the prompt return of a child to his or her country of habitual residence if less than a year has elapsed between the alleged wrongful removal or retention and the commencement of the proceeding, unless one of the limited exceptions to the Convention applies." Article 3 of the Hague Convention states, "habitual residence is determined at the point in time immediately before the wrongful removal or retention."
In determining the habitual residence, the Court's primary consideration is the shared intention of the child's parents at the latest time that their intent was shared. Mota v Rivera Castillo, 692 F3d 108 (2d Cir 2013); Hoffman v Sender, 716 F3d 282 (2d Cir 2013).
On August 3, 2015, both parties appeared before this Court for the first time. The Court notes that on said date, respondent also moved the Court, via order to show cause filed on July 29, 2015, for an order pursuant to CPLR § 3212, granting summary judgment in favor of respondent and denying petitioner's application to repatriate the subject children to Norway; denying petitioner's demand for costs and fees; and determining that New York has jurisdiction to hear the underlying custody matter that respondent filed subsequent to the instant petition. Although the respondent alleged in said moving papers that she did not share an intent with the petitioner to return the subject children to Norway, in open Court, both parties swore, under oath, that they had a shared intent to return to Norway with the subject children. Based on said representations, the Court held that the habitual residence of the subject children was, in fact, Norway. (8/3/15 Tr. 14-18). A review of the record indicated that the subject children's wrongful retention began in May 2014, the time at which respondent refused to return the subject children to Norway, and the instant proceeding was commenced in April 2015. This Court held that the instant petition was commenced within one year of the wrongful retention of the subject children. Accordingly, the defense of acclimation is inapplicable to the case at bar since the petition was filed within one year as mandated by Article 12 of the Hague Convention.
Subsequently, the respondent testified that she told petitioner she would follow with the subject children to get him to leave because he could not handle it if she told him in person that she was not returning.
The Court finds the petitioner has established every element of a prima facie case under the Hague Convention. First, both the United States and Norway are signatories to the Convention since April 1, 1989. Second, both the subject children are under 16 years of age, were born in Norway, and resided there until respondent decided they would remain in the United States. Third, the subject children were habitual residents of Norway. Lastly, petitioner was exercising custody rights at the time of the removal and did not consent to the subject children remaining in the United States.
Since the petitioner established that the removal of the subject children was wrongful, the subject children must be returned unless respondent herein can establish, by clear and convincing evidence, one of the four narrow exceptions that apply under the Hague Convention. Friederich v Friederich, 78 F3d 1060 (6th Cir 1996).
Respondent's affirmative defenses under the Hague Convention
Respondent urges the Court to deny the petition because an exception applies under Hague Convention Article 13(b). The respondent contends the subject children face a real risk of being hurt, physically and psychologically, if repatriated to Norway because of the abuse petitioner inflicted on her and, at times, in the presence of said subject children. Additionally, respondent maintains that her lack of citizenship or immigration status in Norway compounds the grave risk of harm the subject children will face if they are repatriated and she can not remain with them.
Article 13(b) of the Hague Convention provides that the signatory state "is not bound to order the return of the child if there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation."
To establish said defense, respondent must prove, by clear and convincing evidence, that the subject children face a real risk of being hurt, physically or psychologically, as a result of repatriation to Norway. 42 USC § 11603(e); Blondin v Dubois, 238 F3d 153 (2d Cir 2001). Courts have held that "spousal abuse is relevant to a grave risk inquiry because children are at a heightened risk of physical and psychological injury to themselves when they are in contact with a spousal abuser." Elyashiv v Elyashiv, 353 FSupp 2d 394 (EDNY 2005); Tsarbopoulos v Tsarbopoulos, 176 FSupp 2d 1045 (ED Wash 2001). "Prior spousal abuse, even when not directed at the subject children, can support the grave risk of harm defense." Walsh v Walsh, 221 F3d 204 (1st Cir 2000). However, evidence of some level of abuse by a petitioner, in and of itself, does not automatically establish grave risk to the child in repatriation. Additionally, when making a grave risk determination, the Court must also consider "the full range of options that might make possible the safe return of a child to the home country." Blondin, 238 F3d 153. Accordingly, the focus of the inquiry herein is on whether returning the subject children to Norway presents a real risk of harm to said subject children and not on the relationship between the parties.
It is evident both parties love the subject children. Notably, the attorney for the subject children stated in her summation that the subject children love both of their parents. (4/11/16 Tr. 42).
Both parties allege abuse; respondent alleges petitioner psychologically and physically mistreated her. (11/23/15 Tr. 30-32). Petitioner alleges respondent verbally and physically abused him. (1/21/16 Tr. 46). The Court was in the unique position to observe the demeanor and credibility of the witnesses at all the appearances before it. Based on the assessment of the witnesses' demeanor and credibility and the available corroboration or lack thereof, the Court finds that both parties have exaggerated their allegations. At different points during the hearing, the parties cried and, at times, laughed inappropriately. Petitioner had several outbursts and called the attorney for the children, "sweetie" and the attorney for the respondent, "brother." The Court had to admonish petitioner several times. Respondent became hostile with the petitioner's attorney and had to be admonished by the Court. In addition to Ms. M's contradictory testimony, the maternal grandmother was not credible in other respects which will be discussed below. Ms. C's testimony gave insight as to the range of some of the services available to non-lawful victim of domestic violence in Norway, but did not provide any specifics as to how a non-lawful immigrant victim of domestic violence can demonstrate that he or she is experiencing domestic violence via a court injunction, an order of protection, or something from a women's group that is assisting him or her, focusing her testimony instead on demonstrating said violence through a police offense report.
The Court is cognizant that a lack of contemporaneous reporting of abuse by domestic violence victims does not, in and of itself, render said victim's claims unbelievable. Victims of domestic violence seldom report said violence for many different reasons. In the case at bar, the respondent reported at least one of the six incidents to the police. Respondent never reported to the police or child abuse agency any incident whereby petitioner abused the subject children in either country. Respondent never filed or sought relief from any court regarding the subject children until the instant petition was filed. Additionally, respondent testified that she told no one, including her mother, about the most severe instances of domestic violence. There are also no medical records or police reports for the most severe incidents of abuse alleged by the respondent. Maternal grandmother, Ms. M, testified that she witnessed two incidents where petitioner was physically abusive with the respondent. In the first incident of abuse, Ms. M witnessed petitioner slap the respondent causing her to fall on the floor during an argument in her home. (10/14/15 Tr. 14); (11/16/15 Tr. 12- 14). Ms. M testified that the police were not called during the incident and the respondent did not seek medical attention. (11/16/15 Tr. 14). Respondent did not testify regarding this incident.
On August 3, 2015, the Court dismissed, without prejudice, the custody petition filed by the respondent subsequent to the instant Hague petition.
Both Ms. M and the respondent testified about an incident that occurred in the maternal grandmother's home in 2014 when petitioner arrived drunk at 3 in the morning and accused respondent of being unfaithful. Respondent testified that petitioner choked her while she was in the bed with the subject children who were sleeping. (11/23/15 Tr. 44-45). Respondent testified that the petitioner was arrested, but she did not pursue said charges because she wanted him to return to Norway. Respondent testified that she lied and told the police petitioner hit her instead of choked her because she was fearful petitioner would be charged with attempted murder if she told the truth. However, the police report states respondent said she was choked. (11/23/15 Tr. 46). The police report, filed contemporaneously with the incident, detailed that the petitioner grabbed respondent by her neck putting enough pressure to prevent her from normal breathing. The report also notes that the petitioner had injuries of scratches to his neck and face that appeared to be defensive wounds from the respondent. The report also states there was no prior history of domestic violence, the victim was not fearful, and the victim was not injured and did not go to the hospital. (3/30/16, Respondent's A in evidence).
While Ms. M corroborated that petitioner came home drunk and grabbed respondent by the neck, she also testified that she grabbed petitioner, to intervene on behalf of respondent, and then petitioner slapped respondent twice. (10/14/15 Tr. 14-15). Ms. M testified that the police were called and while waiting for their arrival, the petitioner kept grabbing and pushing the respondent. (10/14/15 Tr. 15). The respondent did not testify that her mother interceded during the incident, nor that petitioner slapped her twice. Respondent also did not testify that petitioner grabbed and pushed her while waiting for the police. The Court credits respondent's testimony to the extent that something physical occurred between the parties that night. Neither the police report, nor respondent mention anything about petitioner slapping respondent twice, Ms. M intervening on respondent's behalf, or respondent having scratches and black and blues afterwards as testified to by Ms. M. (10/14/15 Tr. 14-18). Notably, the report also makes no mention of both respondent's and Ms. M's allegations that petitioner hit respondent with the subject children sleeping in the bed. (10/14/15 Tr. 16). Ms. M testified further that the subject child D.A.P.came out of the room and started crying when she saw the respondent crying. (11/16/15 Tr. 18). Ms. M testified that she told her niece to take the subject child to the room. (11/16/15 Tr. 18-19). Ms. M testified that the other subject child was sleeping in the room when the incident occurred. (11/16/15 Tr. 20). Ms. M's contradicts herself with said testimony and respondent did not corroborate that D.A.P.came out of the room crying during the incident.
Petitioner denies said incident as testified to by respondent and her mother. (2/9/15 Tr. 25). Petitioner testified that he got home at 3 in the morning, almost drunk, and when he got into the bed and put his arm around petitioner, she kicked him off the bed. (2/9/15 Tr. 28-29); (3/16/16 Tr. 18). Petitioner testified that he then ran into the livingroom. Petitioner denied choking respondent and testified that Ms. M's ex-boyfriend showed him a video the next day of the respondent, her mother and cousin planning how they would have him arrested. (2/9/15 Tr. 29-34). Petitioner also testified that he waited for the police outside and wanted to file a police report against respondent, but the police did not allow him to. (2/9/15 Tr. 35-37). Petitioner testified that there were no allegations of endangering the welfare of the subject children; the charges were dropped; and there was never any order of protection against him. (2/10/16 Tr. 21). Petitioner testified that said incident was the only time he spent time in jail in his lifetime. (3/16/16 Tr. 20-21). Petitioner did not provide the alleged video Ms. M's ex-boyfriend showed him.
Ms. M's testimony as to the periods and times the parties were in her home changed several times and was contradictory. (10/14/15 Tr. 31); (10/14/15 Tr. 41- 44); (10/14/15 Tr. 57-59); (10/14/15 Tr. 73, 75, 77, 82). Ms. M testified that petitioner would hit the subject children on their backside when they did not want to eat. Respondent testified that petitioner would get physical with the subject child D.A.P.and, once, made her bleed from her mouth when he forced fed her with a spoon. (10/14/15 Tr. 30); (11/16/15 Tr. 23); (11/23/15 Tr. 53); (12/2/15 Tr. 15-17). Respondent then testified that petitioner pushed the spoon into the subject child's mouth making little scratches in her mouth that bled a little. (12/10/15 Tr. 22). Petitioner denied force feeding the subject child. (3/16/16 Tr. 23-24). Petitioner denied ever hitting the subject children and testified that he would talk to his daughters as a form of discipline. (3/16/16 Tr. 24-25). Both respondent and Ms. M testified that petitioner would call respondent derogatory names and, at times, in the presence of the subject children. (10/14/15 Tr. 20, 24); (11/16/15 Tr. 20-21); (11/23/15 Tr. 52). Both respondent and Ms. M testified that petitioner would question the paternity of the older subject child and call her derogatory names in Norwegian. (10/14/15 Tr. 28); (11/16/15 Tr. 21); (11/23/15 Tr. 54); (12/2/15 Tr. 18). Then, Ms. M testified that petitioner only questioned the older subject child's paternity when she was very little. (11/16/15 Tr. 22). Petitioner adamantly denied questioning the paternity of the subject children. (3/16/16 Tr. 16). Ms. M testified that her live-in boyfriend of 18 years did not get along with the petitioner and that he eventually left the home because of the petitioner. (10/14/15 Tr. 31, 56). Then, Ms. M testified that her boyfriend asked her to kick respondent out of her home and when Ms. M refused, he moved out. (10/14/15 Tr. 56 -57). Although Ms. M testified that the petitioner drank every weekend and became abusive, she also testified that she only witnessed petitioner being abusive twice. (10/14/15 Tr. 19); (10/14/15 Tr. 31-34); (10/14/15 Tr. 46-47). Ms. M also testified that she asked petitioner to move out and he was disrespectful to her and continues to send her dirty text messages to date. (10/14/15 Tr. 34-35).
Petitioner attempted to enter the United States on October 19, 2015 but stated he was not allowed entry because respondent was called and she said no. (3/16/16 Tr. 73-74). Although respondent adamantly denied said allegation, Ms. M corroborated petitioner's allegation as to the process of respondent being called when Ms. M testified that this occurred before and she told respondent to say yes so that petitioner could gain entry into the country, but not into her home. Ms. M testified that petitioner left two days later and she has not seen him since then. (10/14/15 Tr. 59-61).
The Court assumes the call came from the immigration department in the United States.
Respondent testified about an incident that occurred for her birthday in 2011 when the parties went out to the disco. Respondent testified that they were having a good time and then petitioner accused her of cheating. When they left the disco he slapped her and she fell on the ground. (11/23/15 Tr. 47-48). Respondent testified that when she fell on the ground, the ring that she was wearing penetrated her finger requiring stitches. (11/ 23/15 Tr. 48). The police arrested the petitioner, but respondent did not pursue charges against the petitioner because, at the time, he was the father of their child and she found out, on that day, she was pregnant with the second child. (11/23/15 Tr. 49).
Ms. M testified that when the parties were staying with her in 2012, the police came to her home to ask about an incident that took place between the parties at a disco. (10/14/15 Tr. 63-64). Ms. M testified that she did not know about that incident and did not see it. (10/14/15 Tr. 63). Ms. M said she did not know about it, yet she lived with her daughter and should have seen the stitches. Respondent did not submit medical records or a police report for said injury. Petitioner denies said incident.
The respondent testified about four other incidents. Respondent testified that five days after being in Norway, petitioner pushed her and they argued and he left her alone in a country she was not familiar with. (11/23/15 Tr. 32).
Respondent testified while in Santo Domingo, petitioner accused her of sleeping with someone in the bathroom of a disco. Respondent testified that petitioner then stuck his finger in her vagina in the presence of his family and called her a prostitute. (11/23/15 Tr. 33). Petitioner testified that the incident never occurred. (2/9/15 Tr. 21); (3/116/16 Tr. 14).
Respondent testified about another incident in Santo Domingo that occurred on December 31, 2013, where the petitioner accused her of taking his money in front of family members. (11/23/15 Tr. 35-38). Respondent testified that she had the youngest subject child in her arms when petitioner attempted to slap her, but he accidentally hit the subject child instead. (11/23/15 Tr. 37-38); (12/10/15 Tr. 15). Petitioner testified that said incident never happened and that the respondent was lying. (3/16/16 Tr. 16).
Respondent testified about an incident that occurred in a relative's home in November of 2009 when respondent was pregnant with the first subject child. (11/23/15 Tr. 42). Respondent testified that her best friend, A.R., came to visit her and petitioner took a bottle and hit him over the head. The police were called, but petitioner was not arrested because respondent's aunt told the police it was A.R. that came to her home uninvited. (11/23/15 Tr. 43). Petitioner acknowledged said incident, but testified that A.R. had sent him eight naked pictures of the respondent performing sex with him and then A.R. came over to threaten and confront the petitioner. (1/21/16 Tr. 57-58); (3/14/16 Tr. 26-28). Petitioner testified that he was almost drunk and hit A.R. with a bottle in defense of the respondent. (1/21/16 Tr. 58-65); (2/9/15 Tr. 12). Petitioner testified that he was not arrested because A.R. was the initial aggressor. (3/16/16 Tr. 21). Respondent did not submit a police report of said incident and petitioner did not submit the pictures A.R. allegedly sent him.
Respondent testified that in December of 2013, petitioner caused the subject child, D.A.P., to cry and bleed from her ear while he cleaned it. (11/23/15 Tr. 62-63). Respondent then testified that there was no proof that the subject child D.A.P.'s ear infection was a result of petitioner cleaning her ear with a Q-tip. (12/10/15 Tr. 25). Petitioner denied making the subject child bleed from the ear and testified that he looked in her ear and then they took the subject child to the clinic. (3/16/16 Tr. 21-22).
Respondent testified that in January of 2014, the parties went to a hotel where petitioner, after having drinks, proceeded to rip respondent's clothes off; pushed her against the wall; pulled hair out of her head; and forced her to have sex with him. (11/23/15 Tr. 56-59). Respondent testified that she sustained swelling in her head and scratches, but did not call the police, obtain medical treatment, or tell anyone in her family. (11/23/15 Tr. 60-62).
Respondent acknowledged petitioner played a significant role in the subject children's lives as their father and that he participated in raising them because he was always home. (12/2/15 Tr. 28-29). Respondent acknowledged petitioner was there for both of the subject children's first steps. (1/8/16 Tr. 43). Respondent testified that the subject children are happy when they see respondent via FaceTime. (1/8/16 Tr. 54). Respondent testified that the older subject child did not understand when petitioner argued with respondent because she was only three years old at the time. (1/8/16 Tr. 56). Respondent testified that petitioner never forced her to travel with the petitioner to Norway, the Dominican Republic, or the United States. (12/10/15 Tr. 27); (1/816 Tr. 10); (1/21/16 Tr. 10). Ms. M testified that the respondent never expressed any concern about leaving to Norway with the petitioner and the subject children in 2012 or 2013. (10/14/15 68-69). Respondent never filed a family offense petition. (12/10/15 Tr. 29). Respondent testified that she never informed any pediatrician or any child protective agency in any country, that petitioner was abusive to the subject children because she did not want to harm him. (1/8/16 Tr. 9, 16). Respondent testified that the problems between the parties were always here and not in Norway. (1/8/16 Tr. 13). Respondent testified that when the petitioner was sober he was a good but jealous husband and a very good father. (1/8/16 Tr. 61-62). However, when he was drunk, he was bad and respondent feared for her safety and for the well being of the subject children. (1/8/16 Tr. 62). Despite all of her testimony regarding petitioner's alleged abuse of her daughter and granddaughters, Ms. M testified that she text the respondent and told him he is a good father and should come to New York and visit the subject children. (10/14/15 Tr. 56). Ms. M testified that petitioner was a good father because he was not a bad father but that he became another person when he drank. (11/16/15 Tr. 26-27).
Respondent testified that she complies with this Court's order and calls petitioner for the subject children, but that petitioner does not pick up the phone and then texts her derogatory insults including "rat." (1/8/16 Tr. 21-24; 45); (1/21/16 Tr. 15). Respondent testified that petitioner rarely speaks with the subject children. (1/21/16 Tr. 19). Petitioner testified that he did not speak to either of his subject children on their birthdays because respondent did not answer the phone. (3/22/16 Tr. 31-33).
Respondent testified that petitioner called her a prostitute and filthy, and did so at least twice in the last year in the presence of the subject children. (1/8/16 Tr. 48); (1/21/16 Tr. 40). Respondent testified that petitioner accuses her of bringing men home and "doing dirty things with them on the sofa." (1/21/16 Tr. 16). Respondent testified that petitioner questions the subject children about the respondent during his court ordered calls. (1/8/16 Tr. 53). Petitioner acknowledged calling respondent a "rat" and said he did so recently, in the last three months, in response to respondent keeping the subject children without his consent; putting men to sit with the subject children when he FaceTime's them; and publishing things about him and his mother on Facebook. (2/9/15 Tr. 17, 24). Petitioner testified that he called respondent derogatory names when she used profanity against him. (2/10/16 Tr. 22). Respondent testified that she could not bear being without the subject children. (1/8/16 Tr. 43).
Respondent testified that she called the police in Norway when petitioner threw a phone at her that almost hit her face. When the police arrived, they took her to stay with a friend. (1/21/16 Tr. 17). Respondent testified that she still has that friend in Norway and they have maintained communication via Facebook. (1/21/16 Tr. 41).
Petitioner testified that the parties argue like in any other marriage but that he has never hit his wife. (1/21/16 Tr. 47). Petitioner testified that he has never pushed the respondent, but has held her by her hands to prevent her from hitting him. (1/21/16 Tr. 51-52); (2/9/16 Tr. 9). Petitioner denied arguing in front of the subject children. (1/21/16 Tr. 52). Petitioner testified that the parties have argued over Ms. M claiming the subject children on her taxes in New York. (1/21/16 Tr. 53-54). Respondent also testified that they argued over respondent and other men. (1/21/16 Tr. 54-55). Petitioner testified that he has never been in jail for domestic violence and has never hit a woman. (1/21/16 Tr. 66); (2/9/15 Tr. 10). Petitioner testified that he accused respondent of cheating when A.R. sent him the naked pictures of herand when he found communication between her and her ex-boyfriend on Facebook. (2/9/15 Tr. 23). Petitioner denied ever arguing with respondent in public. (2/9/15 Tr. 23). Petitioner testified that he has never been charged with domestic violence in the Dominican Republic or Norway, where he had a previous marriage with a Norwegian woman for seven years. (2/10/16 Tr. 25).
Petitioner testified that when he learned the subject children were not returning to Norway he felt bad because the parties had always agreed they would be in Norway and that is why respondent gave birth to them in Norway. (3/22/16 Tr. 25-30). Petitioner testified that if the instant petition is granted, he will come and get the subject children with the assistance of the Norwegian government and that they can attend a school which is five minutes away from his home. (3/30/16 Tr. 15-16). Petitioner testified that the subject children have doctors and schools waiting for them. (3/30/16 Tr. 17, 40-45). Petitioner testified that he has a two bedroom apartment with one room prepared for the subject children and the other for him and the respondent, if she chooses to return to the home. (3/30/16 Tr. 46-48). Petitioner testified that he is working as a mechanic and if respondent does not return with the subject children, they will be in school until petitioner picks them up at dismissal. (3/30/16 Tr. 49-50). Petitioner testified that he does not work on weekends and can care for the subject children. (3/30/16 Tr. 53). Petitioner testified that the subject children are automatically registered for school in Norway because they were born there. (3/30/16 Tr. 62). Petitioner testified that he could pay for the flights of the respondent and the subject children in order to facilitate their return to Norway. (3/30/16 Tr. 65).
Ms. M testified that petitioner got drunk every weekend and would accuse respondent of infidelity and would become aggressive, argumentative, and abusive. (10/14/15 Tr. 19); (10/14/15 Tr. 31-34). Ms. M testified that respondent had drinks while carrying the subject children. (11/16/15 Tr. 22). Yet, respondent never testified to that. Respondent testified that petitioner has a drug problem. Respondent testified that petitioner smoked marihuana in Norway and New York City. In Norway, petitioner would smoke in the kitchen while she and the subject children were in another room. In New York City, the petitioner would smoke in the bathroom while respondent and the subject children were present in the household. (12/2/15 Tr. 20, 22-23). Respondent also testified about an incident in Santo Domingo where petitioner's brother gave respondent something with white powder that respondent believed was cocaine. (12/2/15 Tr. 21-22). Respondent testified that petitioner would mix alcohol with marihuana and would become verbally and physically abusive, at times, in the presence of the subject child D.A.P.(12/2/15 Tr. 24). Ms. M never testified about petitioner smoking marihuana in her home. Additionally, the police report notes that there is no history of drug or alcohol use by petitioner. (10/14/15; 11/16/15; 3/30/16 Respondent's A in evidence). Respondent testified that petitioner was drunk when he was physically assaultive; called her degrading names; accidently hit the younger subject child when attempting to hit respondent; and when he hit respondent's friend, A.R., over the head with a bottle. (1/8/16 Tr. 59). Respondent testified that petitioner was drunk when he got into an argument with his mother; when he accused her of cheating; when he inserted his finger in her vagina in front of others; and when he forced her to have sex. (1/8/16 Tr. 60). Petitioner denied all those allegations except for the incident where he hit A.R. Petitioner testified that he drank with the respondent and that Ms. M bought him bottles of alcohol when he stayed in her home and would drink as well. (2/10/16 Tr. 29). Petitioner testified that no law enforcement official, in any country, ever talked to him about him drinking around the subject children. (3/14/16 Tr. 19-21). Respondent contends that her lack of citizenship or immigration status in Norway compounds the grave risk of harm the subject children will face if repatriated and she can not remain with them. Respondent testified that petitioner filed papers for her to get legal status, but it was never approved because he did not have a steady job. Respondent testified that she was expelled from Norway twice when she received letters telling her to leave. (11/23/15 Tr. 39). Respondent testified that the first time she received that letter, she left Norway but the second time, she stayed. (11/23/15 Tr. 40). Respondent testified that petitioner always threatened to take the subject children from her because they were born in Norway and the police would not listen to her because she had no papers. (12/2/15 Tr. 31). Respondent testified that petitioner has never made threats towards the subject children via text. (1/21/15 Tr. 28). Respondent also testified that petitioner has never made threats against her or the subject children should they return to Norway. (1/21/16 Tr. 31). Respondent testified that petitioner told her one day she would pay for what she has done to petitioner and the subject children. (1/21/16 Tr. 32). Respondent understood that to mean petitioner would do something bad to her. (1/21/16 Tr. 33).
C.C., a case manager, was retained by the respondent to conduct an investigation regarding available services for victims of domestic violence in Norway. (11/23/15 Tr. 6-7). Ms. C testified that there are services available for legal and illegal residents alleging domestic violence in Norway. (11/23/15 Tr. 8). Ms. C testified that the services available for victims of domestic violence who are lawful citizens include safe accommodation services, domestic violence shelters, a 24-hour hotline, and base services. (11/23/15 Tr. 8-9). Ms. C testified that non-lawful immigrant victims of domestic violence are eligible for the 24-hour hotline and temporarily safe accommodations. However, to ascertain whether such a person is eligible for said services, the police department in Norway must conduct an assessment and the alleged victim must prove that domestic violence is occurring in the home. (11/23/15 Tr. 9-10). Ms. C testified that a non-lawful immigrant victim of domestic violence must demonstrate that he or she is experiencing domestic violence by either an offensive police report, a court injunction, an order of protection, or something from a women's group that is assisting him or her. (11/23/15 Tr. 10). The domestic violence does not have to occur in Norway.
The Court does not know what Ms. C is a case manager of.
Ms. C testified that a non-lawful immigrant victim of domestic violence applies for said available services by requesting a police investigation but said victim must be in Norway when requesting it. (11/23/15 Tr. 10-11). Ms. C testified that The Ministry of Children Equality and Social Inclusion is Norway's equivalent of the Administration of Children's Services in the Bronx and that the children of victims of domestic violence are eligible for services. (11/23/15 Tr. 11). Ms. C testified that said children are eligible for preventative services in their home (11/23/15 Tr. 12). Ms. C testified that non-lawful immigrant victims of domestic violence are not eligible for public housing in Norway. (11/23/15 Tr. 13). Ms. C also testified that a non-lawful immigrant victim of domestic violence that is married and living in Norway as a family unit to a Norwegian citizen would be eligible for long-term domestic violence counseling and the children would be eligible for preventative services. (11/23/15 Tr. 13). Ms. C testified that there are domestic violence agencies in Norway but that more services are available to a legal citizen than a non-lawful immigrant. (11/23/15 Tr. 14-15). Ms. C testified that since the respondent is not a resident of Norway, she could not call the police department in Norway to demonstrate that domestic violence is occurring in the home. (11/23/15 Tr. 16).
On cross examination by petitioner, Ms. C testified that she is not familiar with petitioner's city in Norway and does not know if there is a domestic violence shelter in said city. (11/23/15 Tr. 16-17). Ms. C testified that the domestic violence shelters in Norway are open 24-hours a day and accommodate non-lawful immigrants and legal citizens and accommodate people of all languages and speak all languages. (11/23/15 Tr. 17). Ms. C testified that if a non- citizen is married to a Norwegian citizen and has children born in Norway, said non-citizen is provided extensive services. (11/23/15 Tr. 18).
On cross-examination by the attorney for the subject children, Ms. C testified that in order to obtain domestic violence services, you must be married and residing in Norway for a period of three months prior to seeking said services. (11/23/15 Tr. 23). Ms. C testified that to obtain legal status in Norway you must be married and residing in Norway for two years and to obtain citizenship, you must be married and residing in Norway for seven years. (11/23/15 Tr. 23-24). Ms. C testified that the respondent would only be eligible for a ticket back home because she does not have the required residency to receive domestic violence services. Ms. C testified that the subject children would be eligible for counseling. (11/23/15 Tr. 24-25).
Ms. C testified that respondent would be homeless if she returned to Norway. (11/23/15 Tr. 27). Ms. C testified that she conducted a country-wide investigation of the available services for non-lawful victims of domestic violence and not city by city. Ms. C based all her information on her communication with the Norwegian consulate. (11/23/15 Tr. 27-28).
While the Court is cognizant that because of their young ages, lack of maturity, and susceptibility to parental influence, no section of the Hague Convention requires the Court to interview the subject children or consider their wishes, the subject children were interviewed by the Court in the presence of their attorney on March 23, 2016. Kuffner v Kuffner, 519 F 3d 33 (1st Cir 2008). Both young girls, ages 2 & 5, are intelligent and vibrant and clearly know and love both their parents. The transcripts of said interviews are an integral part of the record of this proceeding and have been duly considered by the Court, but no further references will be made to the interview to protect the confidentiality and contents of their testimony. See Matter of Lincoln v Lincoln, 24 NY2d 270 (1969); Family Court Act § 664.
Despite the wide latitude afforded the parties at the hearing, there is no credible evidence that petitioner physically abused the subject children. Respondent never filed a family offense petition or any petition on behalf of herself or the subject children except for the custody petition she filed subsequent to the Hague petition. (12/10/15 Tr. 29). Respondent also testified that she never informed any pediatrician, police department, or child protective agency in any country that petitioner was abusive to the subject children. (1/8/16 Tr. 9, 16). While respondent alleges petitioner force fed the older subject child; cleaned her ear once causing it to bleed; and accidentally slapped the younger subject child in his attempt to hit the respondent; and her mother alleged the petitioner would hit the subject children on their backside when they refused to eat, said actions do not rise to a level of grave risk warranting denial of the instant petition.
Moreover, respondent acknowledged petitioner played a significant role in the subject children's lives as their father. (12/2/15 Tr. 28-29); (1/8/16 Tr. 43). Respondent also testified that the subject children are happy when they see respondent via FaceTime. (1/8/16 Tr. 54). Ms. M also testified that she text the respondent and told him he is a good father and that he was not a bad father but became different when he drank. (10/14/15 Tr. 56); (11/16/15 Tr. 26-27).
Respondent has also failed to show, by clear and convincing evidence, that returning the subject children to Norway will expose them to "physical, psychological harm or otherwise expose them in an intolerable situation." Charalambous v Charalambous, 627 F3d 462 (1st Cir 2010). Respondent testified that the problems between the parties were always here and not in Norway. (1/8/16 Tr. 13). Respondent also testified that the older subject child did not understand when petitioner argued with respondent because she was only 3 years old at the time. (1/8/16 Tr. 56). As such, respondent herself has acknowledged that whatever instances of domestic violence the subject child may have witnessed has not psychologically impacted her.
The respondent argues that through their witness, Ms. C, she has established that the subject children will be subjected to serious neglect and abuse in Norway and that she would not be eligible for any services based on her lack of immigration status. The Court disagrees. Nunez-Escudero v Tice-Menley, 58 F3d 374, 377 (8th Cir 1995). Firstly, Ms. C's research was limited to the services available to non-lawful citizen victim of domestic violence and nothing else. (11/23/15 Tr. 6-7). Secondly, Ms. C's research consisted solely of her communication with the Norwegian Consulate. (11/23/15 Tr. 27-28). Ms. C also testified that The Ministry of Children Equality and Social Inclusion is Norway's equivalent of the Administration of Children's Services in the Bronx and that the children of victims of domestic violence are eligible for services. (11/23/15 Tr. 11). Ms. C also testified that the subject children, who are citizens of Norway, are eligible for preventative services in their home. (11/23/15 Tr. 12). Although Ms. C testified that in order to obtain domestic violence services, you must be married and residing in Norway for a period of three months prior to seeking said services, she also testified that you can obtain said services through a court injunction, an order of protection, or something from a women's group that is assisting him or her. (11/23/15 Tr. 10, 23). As such, respondent can seek relief from the courts of Norway and obtain domestic violence services. Respondent can also seek permission from the courts in Norway to reside in the United States with the subject children pending the outcome of any custody petition filed by the parties. (11/23/15 Tr. 23).
Although Ms. C testified that the respondent would be homeless if she returned to Norway, she cannot know that for certain. (11/23/15 Tr. 27). The Court does not know if respondent is willing to move in with petitioner or if she is planning to return at all. There are no orders of protection, nor have there ever been any, barring communication between the parties. Additionally, respondent also testified that she still has a friend in Norway whom she has stayed with before and has maintained communication with. (1/21/16 Tr. 17, 41). Respondent also testified that petitioner has never made threats against her or the subject children should they return to Norway. (1/21/16 Tr. 31). Although respondent testified that petitioner told her one day she would pay for what she has done to petitioner and the subject children and she understood that to mean petitioner would do something bad to her, the Court finds that to be insufficient to establish grave risk. (1/21/16 Tr. 32-33). Additionally, when questioned by the attorney for the children as to whether he would welcome respondent into the home if she decided to escort the subject children to Norway, petitioner testified that he has a two bedroom apartment with one room prepared for the subject children and the other for him and the respondent if she chooses to return to the home. (3/30/16 Tr. 46-48). The Court finds the case at bar is distinguishable from the case cited by respondent because in that case the respondent submitted four affidavits including one from a psychologist and the Court did not consider it, as such the case was remanded back to the court for re-consideration. Id. The Court herein has considered Ms. C's testimony and finds it insufficient to establish that the subject children would face an intolerable situation in Norway.
The attorney for the children argues that the subject children will be psychologically harmed if removed from the environment they have known for the last two years. However, respondent testified that the shared intent was that the subject children would return to Norway, she cannot argue now that the subject children have become accustomed to their lives here. The Court cannot consider the disruption of the "sense of attachment that is created during a long stay in a single place with a single parent a grave risk of harm for the purposes of the convention." Friederich v Friederich, 78 F3d 1060 (6th Cir 1996). Petitioner has a two bedroom apartment; can pick the subject children up from school; and does not work on the weekends. There is absolutely nothing in the record to suggest that the subject children's lives in Norway would result in any permanent harm or unhappiness. Id. The attorney for the children also questions whether the respondent will even be allowed to re-enter. There is no evidence before the Court that respondent will not be allowed to enter. Further the Department of State, in a letter mailed to the Court and the attorneys and submitted as part of the petition, states that an American citizen, does not need a visa to visit in Norway and can stay up to 90 days in said country. Once there for ninety days she would be eligible for services according to Ms. C. (11/23/15 Tr. 23).
The Court finds that respondent has failed to establish grave risk of harm "that is something greater than would normally be expected" on taking the subject children from her and passing them to the petitioner. Thomson v Thomson, 119 DLR 4th 253, 286 (Can. 1994). There is no evidence to demonstrate that Norway is not capable or willing to afford the subject children adequate protection during any proceedings the parties may file for in Norway. ICARA, 4(e)(2)(A), 42 USCA § 11603(e)(2)(A). Through Ms. C, it has been established that Norway has reasonable procedures to ensure the safety of the subject children during the pendency of the custody proceedings if the parties chose to file for custody. Souratgar v Fair, 720 F3d 96 (2d Cir 2013).
CONCLUSION
Based on the findings of fact, the Court finds the petitioner has proven by a preponderance of the evidence that: (1) both the United States and Norway are signatories to the Convention since April 1, 1989; (2) the subject children were born in Norway and were habitual residents of Norway; (3) that the removal of the subject children from Norway violated petitioner's custodial rights under Norwegian laws; and (4) the petitioner was exercising said custody rights at the time of the removal and did not consent to the subject children remaining in the United States.
The Court finds that respondent has not proven by clear and convincing evidence her defense under Article 13(b) of the Convention, that returning the subject children to Norway will subject the subject children to a grave risk of harm.
Accordingly, since petitioner established his case under the Hague Convention and respondent failed to prove her Article 13(b) defense, the Hague Convention and case law cited above require the instant petition be granted. The petition is granted and the Court directs the return of the subject children.
This constitutes the Order of this Court. Dated: July 8, 2016________________________
HON. LLINET M. ROSADO Acting Justice
Bronx Family Court