Avans (respondent) is a naturalized U.S. citizen. In 1998, she met Adan (petitioner), a citizen of Argentina, in Argentina, and they began cohabitating shortly thereafter. Respondent testified before the District Court that petitioner began to abuse her almost immediately. For example, he would lock her in his bedroom, beat her, and threaten her with further harm if she ever leaves him. When respondent became pregnant in 1999, she moved to New Jersey. Petitioner followed her in a month and, according to respondent, the abuse resumed. Respondent gave birth to Arianna on June 15, 2000. The parents went on living in New Jersey where respondent filed reports of petitioner’s abuse with the New Jersey police twice in a two-months span.
In September 2000, the parties returned to Argentina and,
after receiving more abuse, respondent eventually began living apart from
petitioner. At some point, the parties allegedly reached an informal custody
agreement as to Arianna. Respondent next alleges that petitioner began sexually
abusing Arianna in 2003. The child allegedly told her mother that petitioner
took baths with her and that he apparently had put his tongue inside her mouth.
Respondent also said that the child described having been sodomized by
petitioner. In addition, respondent claimed that petitioner had raped
respondent in front of Arianna.
After these incidents, respondent went to a family court in Argentina and secured a 90-day temporary restraining order (TRO) against petitioner. According to respondent, when petitioner violated the order, the local police failed to enforce it. Shortly before the February 2004 return date on the TRO, respondent took her daughter back to New Jersey. Petitioner followed his wife and child to the U.S. In April 2004, respondent obtained a TRO against petitioner from the local court.
Next, petitioner applied to the New Jersey federal court to order Arianna’s return to Argentina pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”) [Oct. 25, 1980, T.I.A.S. No. 11,670, 19 I.L.M. 1501 (1980)]. The International Child Abduction Remedies Act (ICARA), 42 U.S.C. Section 11601 et seq. implements the Hague Convention in the U.S. The court granted the application. It found that respondent had not shown by clear and convincing evidence that Arianna would be subject to physical or psychological harm if returned to Argentina.
With respect to the allegations of sexual abuse, the Judge shrugged off the child’s descriptions of petitioner’s sodomy and other inappropriate sexual behavior as being trivial. Respondent appealed. The U.S. Court of Appeals for the Third Circuit vacates the order and remands for further proceedings.
As the appellate court explains: “The purpose of the Convention is to ‘protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.’”
“Under Article 3 of the Convention, removing a child from a country is wrongful when: ‘[a] it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and [b] at the time of removal or retention, those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.” [Slip op. 7-8]
Article 13(b) may, in effect, “ratify” an initially wrongful
removal, however, if there is proof of a grave risk that the child’s return
would expose her to physical or psychological harm or otherwise place her in an
intolerable situation. A petitioner must show by a preponderance of the
evidence that he had, and was exercising, custody rights over the child under
the country of origin’s laws and that the country of origin was the child’s
“habitual residence.” Upon such a showing, the burden shifts to the other party
to show by clear and convincing evidence that the Article 13(b) exception
applies.
The Third Circuit reviews cases like this de novo. The issues
on appeal are whether (1) Arianna was wrongfully removed from her habitual
place of residence; and (2) whether the exception for wrongful removal can be
applied to this case.
The Circuit Court concludes that Argentina is Arianna’s country of habitual residence. Though she was born in the U.S., the parents took Arianna to Argentina when she was three months old and lived there until February 2004. Petitioner and respondent clearly had a “settled purpose” and “shared parental intent” to raise their daughter in Argentina. On the other hand, the record is barren of any evidence of the alleged informal agreement between the parties about Arianna’s custody. Nor does it show that the parents had properly memorialized the agreement pursuant to Argentine law.
Moreover, the parties failed to cite, and the District Court did not refer to, any provisions of Argentine law dealing with the creation, terms, or enforceability of custody agreements. These lacunae make it impossible for the federal court to decide whether the alleged agreement had legal effects under Argentine law as the Convention requires.
In light of the lower court’s failure to consider these issues, “we are compelled to vacate its June 7, 2005 order and remand the case for further factfinding to determine: (1) what is the custody law of Argentina; (2) what are the terms of the parties’ agreement regarding custody of Arianna; (3) whether that agreement is enforceable under Argentine law; and (4) under the agreement (or, if the agreement is not enforceable, Argentine family law), whether [petitioner] had custody rights or mere rights of access, and whether he was validly exercising those rights at the time Arianna was removed. Upon the development of a proper factual record, we shall be in a better position to review the District Court’s factual and legal conclusions.” [Slip op. 13].
Case: In re Application of Adan, 437 F.3d 381 (3rd Cir.).
*** Ayn Traylor-Sadberry is a domestic relations, probate & criminal attorney in Birmingham, Alabama. Ms. Traylor-Sadberry received her B.A. degree in 1966 from the University of Oklahoma, her M.A. in 1973 from the University of Oklahoma, and her Juris Doctor from Howard University in 1981. She was admitted as an attorney in Alabama in 1989. Website: www.TraylorSadberry.com
