Aly v. Aden
Filing
70
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER granting 1 Petition for Return of Minor Child(Written Opinion) Signed by Judge Judge John R. Tunheim. (DML)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
MOHAMED ALY SAAD ALY,
Civil No. 12-1960 (JRT/FLN)
Petitioner,
FINDINGS OF FACT,
CONCLUSIONS OF LAW AND
ORDER GRANTING PETITION FOR
RETURN OF MINOR CHILD
v.
AMAL ADEN,
Respondent.
Nancy Zalusky Berg and Lilo D. Kaiser, WALLING BERG & DEBELE,
PA, 121 South Eighth Street, Suite 1100, Minneapolis MN 55402, for
petitioner.
Brian Scott Carter, Katherine K. Bruce and Laura E. Nelson, ROBINS
KAPLAN MILLER & CIRESI LLP, 800 LaSalle Avenue, Suite 2800,
Minneapolis, MN 55402, for respondent.
On August 10, 2012, petitioner Mohamed Aly Saad Aly (“Aly”) filed a petition
against respondent Amal Aden (“Aden”), pursuant to the Hague Convention, 19 I.L.M.
1501 (1980) (the “Convention”), and the International Child Abduction Remedies Act
(“ICARA”), 42 U.S.C. §§ 11601 et seq., alleging that Aden wrongfully removed their
child to the United States. Aly contends that the child is a habitual resident of Canada
within the meaning of the Convention, and accordingly seeks an order from the Court
directing the prompt return of the child to that country. Aden opposes the petition,
alleging that Aly has not met the requirements under the Convention and raising
24
affirmative defenses to the return of the child – including that there is a grave risk of
harm should the child be returned to Canada.
The Court held an evidentiary hearing on November 13 and 14, 2012. The Court
heard testimony from numerous witnesses, including Aly and Aden. The Court then gave
the parties an opportunity to submit closing briefs. Based on the entire record and
proceedings, the testimony at the hearing and arguments of counsel, the Court enters the
following findings of fact and conclusions of law.
FINDINGS OF FACT1
1.
To the extent that the Court’s Conclusions of Law include what may be
considered Findings of Fact, they are incorporated herein by reference.
2.
The following facts are found to be established by a preponderance of the
evidence, except to the extent characterized below as allegations.
I.
THE PARTIES
3.
Petitioner Aly was born and raised in Cairo, Egypt. (Tr. 145:23-24.)2 Aly
has been a permanent resident of Ontario, Canada since 2007, where he is currently
pursuing a PhD in engineering at the University of Waterloo. (Tr. 30:9-11, 30:23-31:2,
1
Although the parties presented extensive evidence on myriad topics during the two day
evidentiary hearing, the Court includes in its Findings of Fact only those facts which are relevant
to providing context for the parties’ arguments and to determining the merits of the petition.
2
All citations to “Tr.” refer to the transcript of the evidentiary hearing that took place on
November 13, 2012, and November 14, 2012. (Tr. of Evidentiary Hr’g, Nov. 27, 2012, Docket
Nos. 63-64.)
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91:5-7.) Aly has applied for Canadian citizenship, and his application is currently being
processed. (Tr. 30:12-15.)
4.
Aly supports himself financially with a stipend he receives from serving as
a research/teaching assistant at the University of Waterloo, a temporary position that
terminates when Aly has completed his PhD. (Tr. 30:23-21:5, 91:2-7.)
5.
Respondent Aden is a United States citizen who was born in Somalia and
immigrated to Minnesota in 1999. (Tr. 291:2-7, 339:23-24.) Aden received a Bachelor’s
Degree in nursing in 2007 and currently works part-time at the Hennepin County Medical
Center. (Tr. 288:1-7, 291:15-18.)
6.
Aden and Aly are the parents of P.H.A.S.A., born August 27, 2011, in
Canada.
II.
THE BEGINNING OF ALY AND ADEN’S RELATIONSHIP
7.
Aly and Aden met in 2009 through muslima.com, a Muslim dating website.
(Tr. 29:10-13, 32:2-5, 294:14-15.) In February 2010, Aden traveled to Ontario to meet
Aly in person. (Tr. 32:6-9, 296:8-12.)
8.
Aly and Aden were religiously married in an Islamic ceremony in April
2010. (Tr. 33:10-13, 296:17-18.) On June 7, 2011, the couple was civilly married in
Canada. (Pet. Ex. 16.)3
3
When citing to “Pet. Ex.” and “Resp. Ex.” the Court is referring to the exhibits offered
by each party that the Court admitted at the evidentiary hearing.
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9.
In May 2010, Aden moved from Minnesota to Ontario and began living
with Aly in his apartment. (Tr. 33:18-34:9, 339:9-10.) Aden had purchased a townhome
in Minnesota in 2007, which she continued to rent to a tenant after moving to Canada.
(Tr. 80:14-17, 82:1-11, 288:8-11, Pet. Ex. 31.) Aden’s immigration status in Canada was
one of a visiting American. (Tr. 339:25-340:1.) Upon moving to Canada, Aden retained
her Minnesota driver’s license, and when it expired obtained a New York driver’s
license. (Tr. 341:21-23.)
10.
Shortly after Aden moved to Canada, Aly learned that Aden was legally
married to another man. (Tr. 34:10-14.) Aden was married to a Somali man in 2007.
(Tr. 291:19-292:7.)
In 2008, Aden separated from this man and the couple was
religiously divorced. (Tr. 292:8-18, 293:1-4.) In 2010, Aden initiated civil divorce
proceedings in Hennepin County, and the divorce was finalized on September 3, 2010.
(Tr. 293:1-15; Pet. Ex. 25.)
11.
In September 2010, Aden learned that Aly had been married and divorced
four times prior to meeting Aden.
(Tr. 324:4-9; Pet. Exs. 1-8, 26 at 1-2.)
Aly’s
marriages to two of these women overlapped for a period of time. (Tr. 104:7-10.) Aden
also believed, erroneously, that as of September 2010, Aly was still legally married to an
Egyptian woman. (Tr. 311:3-7; Pet Ex. 4.)
12.
After learning of Aly’s relationship history, Aden purchased a one-way
plane ticket to Minnesota. (Tr. 342:7-11.) Aden alleged that Aly checked Aden’s e-mail
and upon finding the ticket confirmation slapped Aden in the face several times.
(Tr. 324:4-17.) Aden also alleges that Aly smashed her laptop on the floor and threw her
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cell phone into the sink where he ran water over it. (Tr. 324:16-25.) Immediately
following this alleged outburst, Aly drove Aden to the airport to board her flight for
Minnesota. (Tr. 324:16-25.) Aly testified that in the fall of 2010 he and Aden enjoyed a
“loving relationship,” and denied any allegations of physical abuse. (Tr. 37:25-38:4.)
13.
Aden returned to Canada on October 4, 2010, several days after flying to
Minnesota. (Tr. 325:4-5; Pet. Ex. 32.)
14.
In November 2010, Aden and Aly applied for marriage license
authorization in Canada, and Aly added Aden to the lease agreement for his apartment.
(Pet. Exs. 11, 13.)
15.
Also in November 2010, Aden became pregnant with P.H.A.S.A.
(Tr. 313:9-22.)
16.
In December 2010, Aden began working as a nurse at Millard Fillmore
Gates Hospital (“Millard”) in Buffalo, New York. (Tr. 41:8-15, 332:12-15, 340:2-8.)
Shortly after beginning her employment, Aden fell and broke her ankle. (Tr. 340:10-11.)
The injury forced her to quit working until May 2011, when she resumed her nursing job.
(Tr. 340:11-16.) Aden rented a room from a family in Buffalo, and stayed overnight
there on days when she worked at Millard. (Tr. 342:15-18.)
17.
In January 2011, Aden alleges that she told Aly she wanted to separate.
(Tr. 313:16-18.) Aden alleges that Aly told her that she could leave, but would first need
to abort the fetus. (Tr. 313:18-21.) Aden alleges that she called an abortion clinic to
schedule a procedure, but was told she could not obtain an abortion because she was
taking blood thinners. (Tr. 313:22-314:6.) While Aden was on the phone with a second
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clinic, she alleges that Aly took the phone from her and hung up. After this incident,
Aden went to stay at her cousin Asha’s house for approximately two weeks. (Tr. 314:1112.) Asha lived in Canada, less than a twenty minute drive from Aly and Aden’s
apartment. (Tr. 217:17-18.) During the course of Aly and Aden’s relationship, Aden
went to stay with Asha six or seven times. (Tr. 214:23-215:2.)
III.
THE FEBRUARY 27, 2011 INCIDENT
18.
On February 27, 2011, Aly and Aden were involved in a violent incident.
(Resp. Ex. 75 at 036.) An argument began when Aly became upset that Aden did not
make him lunch, and instead suggested that he prepare his own lunch. (Tr. 314:16-20.)
19.
Aden alleges that the argument escalated verbally, and she began to pack
her bags, planning to end the relationship with Aly and move out of the apartment.
(Tr. 315:3-7.) At this point, Aden alleges that Aly threw her onto the bed, punched her in
the head several times, and lay on top of her. (Tr. 315:7-15.) When Aden got off the
bed, she alleges that Aly grabbed her by the shoulders to prevent her leaving the room
and kneed her forcibly in the stomach. (Tr. 315:15-18.) Finally, Aden alleges that she
locked herself in the bathroom and vomited. (Tr. 315:24-316:1.)
20.
Aly had an entirely different version of the February 27 events.
Aly
testified that as the verbal argument over the preparation of lunch escalated, Aden
threatened him with a kitchen knife and also threatened to kill herself or stab her belly.
(Tr. 49:13-14.) Aly further alleges that he, not Aden, sought refuge in the bathroom.
(Resp. Ex. 75 at 036.)
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21.
Aly called 911 and two police officers reported to Aly and Aden’s
apartment. (Resp. Ex. 75 at 036.) The officers observed that neither Aly nor Aden had
any injuries. (Id.) In their report, the officers indicated that they did not believe either
Aly’s or Aden’s description of the events. (Id.; Tr. 50:10-12.) The officers found Aly’s
story to be not credible because although he told them that Aden had threatened him with
a knife, he did not provide the police with a detailed threat and could not find or describe
the knife that Aden had allegedly threatened him with. (Resp. Ex. 75 at 036-037.) The
officers also found Aden’s version of the events and her description of her injuries not
credible. (Id. at 036.) Aden told the officers that Aly had pushed her, and she believed
her fingers were broken. (Id.) At the time Aden was using her hands without difficulty
to pack bags and carry suitcases. (Id. at 036-037.)
22.
At some point during the February 27 argument, Aly called Asha and asked
her to come get Aden. (Tr. 211:18-24, 316:2-3.) Asha arrived at Aly and Aden’s
apartment and, upon the suggestion of the police, took Aden to the emergency room at
St. Mary’s hospital. (Tr. 214:13-14.)
23.
At the hospital, Aden reported that on February 27 she had attempted to
leave the apartment, and Aly had pushed her against the wall and also pushed her onto
the floor. (Resp. Ex. 23 at 014.) Aden repeated this recount of the events to domestic
violence center workers in early March 2011. (Resp. Ex. 25 at 003.)
24.
The emergency room doctor documented six small bruises on Aden’s wrist,
two swollen and painful fingers, and two small bruises on Aden’s upper arm.
(Tr. 319:13-320:2; Resp. Ex. 23 at 021-022.) An x-ray of Aden’s fingers showed no
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fractures or dislocations. (Resp. Ex. 23 at 009.) Aden also reported pain in her shoulder
and thigh, although the doctor reported that there were no visible injuries to those areas.
(Resp. Ex. 23 at 019-020.) Aden’s medical report also indicates that she complained of
abdominal cramping. (Tr. 320:3-6.)
25.
After Aden left the hospital she went to her cousin’s home and alleges that
she stayed with Asha for over a month, before returning to live with Aly. (Tr. 214:18-22,
322:19-23.)
In early March 2011, Aden went to the Domestic Violence Center in
Waterloo to receive services related to the February 27, 2011 incident. (Tr. 50:13-17;
Resp. Ex. 25.) Reports from the Center indicate that Aden attended a counseling session
on March 4, 2011, and when the social worker called Asha, Asha stated that Aden had
returned to Aly. (Resp. Ex. 25 at 008.) Additionally, Aden booked a plane ticket to
Minnesota on March 15, 2011, suggesting that her testimony about the length of her stay
at her cousin’s house is not credible. (Pet. Ex. 32.)
26.
The Court finds neither Aly’s nor Aden’s version of the events of
February 27, 2011 to be entirely credible. First, the police did not believe either of the
parties, and the Court gives weight to the objective observations of the two officers that
responded to the incident.4 The Court finds Aly’s testimony not credible because he was
4
Additionally, in this, and other credibility determinations in this matter, the Court is
influenced by the lack of truthfulness of both of the parties throughout their relationship to one
another and these proceedings. For example, both parties concealed their previous marriages
from one another. Additionally, Aden lied in her initial counterpetition about how she and Aly
met, and misstated the events precipitating at least one of Aly’s alleged assaults. (Tr. 297:4298:4.) Aly, as explained more fully below, lied extensively to the police when he called to
report his car missing on June 5, 2012. The parties have presented polar opposite accounts of
(Footnote continued on next page.)
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unable to identify for the police the knife with which Aden allegedly threatened him.
Additionally, Aly’s testimony that he did not assault Aden is not credible due to the
injuries sustained by Aden that were documented at the emergency room. The Court
finds Aden’s testimony credible to the extent that it believes Aly perpetrated some
violence against her during the course of the February 27, 2011 incident. This testimony
is corroborated by Aden’s emergency room records which revealed bruising and swollen
fingers. However, the Court does find Aden’s testimony to be exaggerated regarding the
nature and extent of the violence perpetrated against her. Specifically, the Court finds
Aden’s testimony that Aly threw her onto the bed, punched her in the head, and kneed her
forcibly in the stomach not credible. This description of the events is different than that
which she gave to the responding police officers, the emergency room doctors, and the
domestic violence center workers, and also seems inconsistent with the injuries she
sustained.
27.
Aden testified that in July 2011 she and Aly were involved in another
physical altercation, which arose out of a woman claiming to have married Aly in March
2011 contacting Aden. (Tr. 323:3-11.) Aden packed her belongings, intending to leave,
and Aly allegedly hit her in the head several times. (Tr. 323:21-324:3.) Aden also
____________________________________
(Footnote continued.)
nearly every relevant (and irrelevant) event in this matter. Because neither Aly nor Aden
appeared completely credible to the Court, it believes that the truth underlying many of the
alleged incidents likely lies somewhere in between the stories told by the parties. With respect to
those incidents the truth of which is material to the outcome of this matter, the Court has made
specific credibility determinations, and has relied on the parties’ general lack of truthfulness only
as one factor in that determination.
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alleges that Aly deleted instant messages in which he admitted that he hit her in the head
in July 2011. (Tr. 357:2-4.)
IV.
P.H.A.S.A’S BIRTH
28.
Aly and Aden initially planned for P.H.A.S.A. to be born in Minnesota.
(Resp. Ex. 33 at 003, Tr. 72:18-22, 103:1-10, 342:14-16.)
29.
In April 2011, Aden sent a letter to the American Consul’s Office
requesting a visa for Aly, so he could attend their child’s birth in the United States. (Pet.
Ex. 12.) The visa was denied. (Tr. 72:4-10, 343:20-25; Resp. Ex. 33 at 003.) When the
visa was denied, Aly and Aden next made plans for Aden to deliver the baby in Buffalo,
New York, where she had health insurance and had been attending her prenatal visits.
(Tr. 344:1-5.)
30.
When Aden was seven months pregnant she and Aly both signed a lease on
an apartment in Canada with a term extending from June 1, 2011, through May 31, 2012.
(Pet. Ex. 30; Tr. 80:22-81:4.)
31.
Aden was two weeks past her due date when she saw her doctors in Buffalo
on Monday, August 22, 2011. (Tr. 344:7-8.) The doctors scheduled Aden for a cesarean
section procedure on Saturday, August 27, 2011. (Tr. 344:8-9.) After her Monday
appointment, Aden returned to Canada to spend the week with Aly, and went into labor
on Friday, August 26. (Tr. 343:10-17.) Aly took Aden to a Canadian hospital, and the
doctors indicated that it would not be safe for Aden to be transported to Buffalo.
(Tr. 343:12-19.) Aly and Aden’s daughter, P.H.A.S.A., was born on August 27, 2011, in
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Canada. (Tr. 51: 22-23; Pet. Ex. 15.) Because Aden did not have health insurance in
Canada, she was ultimately billed $13,000 for her delivery at the Canadian hospital.
(Tr. 344:20-24.)
32.
P.H.A.S.A. is a Canadian and an American citizen. (Tr. 344:25-345:6;
Resp. Ex. 8.) P.H.A.S.A. also has a United States passport and social security card.
(Tr. 345:10-21; Resp. Ex. 19.)
33.
Aden took maternity leave from her job at Millard immediately following
P.H.A.S.A.’s birth. (Tr. 342:8-9.) During this period of time, Aden was P.H.A.S.A’s
primary caregiver, and Aden, Aly, and P.H.A.S.A. continued to live in Aly and Aden’s
apartment in Canada. (Tr. 346:3-13.) Aden returned to her nursing job at Millard in
October 2011 and began working weekends. (Tr. 340:13-19, 342:8-9.) On weekends
Aly would care for P.H.A.S.A. (Tr. 346:20-22.) Aly and P.H.A.S.A. would accompany
Aden to the Canadian border near Buffalo and stay at a bed and breakfast while Aden
worked. (Tr. 346:14-347:5.)
34.
Aden alleged that she “fear[ed] for [P.H.A.S.A.]’s safety” and “was
terrified” when she went back to work and left P.H.A.S.A. in Aly’s custody. (Tr. 326:711.) The Court finds this testimony to be not credible. Aden consistently left P.H.A.S.A.
in the sole care of Aly. These actions are inconsistent with Aden’s alleged terror. This is
particular true in light of Aden’s history of a willingness and ability to leave Aly. If
Aden truly feared for P.H.A.S.A.’s safety, the Court finds it somewhat unlikely that Aden
would have left her child with Aly. Additionally, Aden has made no allegations that
P.H.A.S.A. was harmed physically, psychologically, or emotionally while in the sole
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custody of Aly. Instead, instant messages between Aden and Aly reveal that Aly woke
early to care for the child, was aware of P.H.A.S.A.’s physical needs, and worried about
raising P.H.A.S.A. properly. (See Pet. Ex. 21.)
35.
Benefits.
After her birth, P.H.A.S.A. began receiving Canadian and Ontario Child
(Pet. Ex. 10.)
In December 2011, Aden filed a declaration with the
Summerside Tax Center declaring that Aly was P.H.A.S.A’s primary caregiver and
should therefore receive Canadian Child Benefits and Ontario Child Benefits on behalf of
P.H.A.S.A. (Pet. Ex. 10.) Aden alleged that this declaration was written by Aly, and
signed by Aden under duress. (Tr. 347:17-348:24.) Aly alleged that he, in fact, assumed
primary responsibility for caring for P.H.A.S.A. (Tr. 147:22-25.)
36.
Prior to April 26, 2012, P.H.A.S.A. attended all of her medical
appointments in Canada, including specialist appointments for a possible genetic disease.
(Pet. for Return of Minor Child, Ex. 3, Oct. 18, 2012, Docket No. 32.)
37.
In February 2012, Aden entered into another rental agreement with the
tenant for her Minnesota townhome. (Pet. Ex. 31.) The agreement granted the tenant a
lease through April 30, 2013. (Id.)
V.
P.H.A.S.A.’S REMOVAL
38.
On April 25, 2012, Aly and Aden had an argument during which Aden told
Aly she wanted to separate. (Tr. 299:10-15.) Aly began yelling, and told Aden she
should not leave with his child and would regret doing so. (Tr. 299:16-300:4.) Aden
alleges that while she was holding P.H.A.S.A. Aly slapped Aden in the face. (Tr. 300:7-
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10.) Aden alleges that this was the seventh time Aly had physically assaulted her.
(Tr. 313:7-8.) Aden testified that Aly then grabbed P.H.A.S.A. from Aden’s arms and
threw P.H.A.S.A. into the corner of the room. (Tr. 300:13-15.) P.H.A.S.A. landed on the
floor and began crying hysterically according to Aden’s account of the evening.
(Tr. 300:20-301:3.) Aden alleges that using her background as a neurological intensive
care unit nurse she examined P.H.A.S.A. for signs of injury, and checked on P.H.A.S.A.
hourly throughout the night to assess the infant for head trauma. (Tr. 300:22-301:17.)
Aden testified that she observed no injuries to P.H.A.S.A. during these examinations.
(Tr. 301:18-19.)
39.
Aden alleges that immediately after Aly threw the child he left the
bedroom, began pacing, and ultimately began watching something on his computer.
(Tr. 302:4-9.) Aly then requested that Aden make dinner for him, grabbed her, and asked
her to sit down and eat with him. (Tr. 302:17-25.) After Aly went to bed, Aden testified
that she began packing her and P.H.A.S.A.’s belongings and put the packed bags into a
storage room next to Aden and Aly’s apartment. (Tr. 303:4-8.)
40.
Aly denied all of the allegations of the April 25, 2011 event, and
specifically denied that he threw P.H.A.S.A. across the room. (Tr. 55:5-14.)
41.
The next day, April 26, 2011, Aden took P.H.A.S.A. to a doctor’s
appointment in Hamilton City, Ontario, that had previously been scheduled. (Tr. 57:1219.) Aden brought the bags she had packed the previous night. (Tr. 304:5-15.)
42.
The medical records from P.H.A.S.A.’s appointment with a pediatrician on
April 26, 2012, indicate that P.H.A.S.A. was examined by a doctor, and had suffered no
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apparent injuries from the previous night. (Tr. 56:10-13; 304:20-23.) Moreover, Aden
did not mention the alleged throwing incident of the previous night to the pediatrician.
(Id.)
43.
The Court again finds neither party’s testimony regarding the events of
April 25 to be entirely credible. The Court discredits Aly’s testimony that no incident of
any kind occurred on the evening of April 25. Aly’s testimony is not credible because he
was unable to provide any details about the admitted conflict in his and Aden’s
relationship, and instead merely denied any and all accusations of physical or verbal
abuse. The Court finds Aden’s testimony credible to the extent that it believes a verbal
argument erupted between the parties and that Aly did become physically violent toward
Aden. The Court, however, finds Aden’s testimony that Aly grabbed P.H.A.S.A. from
Aden’s arms and threw her across the room to be not credible. The Court finds this
testimony not credible because Aden, a trained nurse, did not seek medical attention for
her eight-month-old child after the child was allegedly thrown across the room.
Additionally, the Court believes that if the allegations were true Aden would have
mentioned the incident at P.H.A.S.A’s doctor’s appointment the next day, since Aden’s
conduct on February 27, 2011, showed that she was not afraid to report incidents of
domestic abuse. Finally, the Court finds the testimony not credible to the extent that an
eight-month-old child grabbed forcibly from someone’s arms and thrown across a room,
landing on the floor, would likely have sustained some injuries visible to a doctor at an
appointment that occurred the day after the incident.
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44.
After P.H.A.S.A.’s doctor’s appointment, Aden drove with the child to
Buffalo, New York. (Tr. 304:24-25.) Aden withdrew her final paycheck from Millard
and began driving to Minnesota. (Tr. 305:1-3.)
45.
Aly called Aden in the afternoon on April 26 and asked where Aden and
P.H.A.S.A. were. (Tr. 305:6-9.) Aden told him that P.H.A.S.A.’s appointment was not
finished. (Tr. 305:6-9.)
46.
On April 27, 2012, shortly after midnight, Aly sent Aden an instant
message asking her to call him back or answer his calls. (Pet. Ex. 21 at 96.) Aden
alleges that Aly called her shortly after midnight on April 27 and she told Aly that she
had left for Minnesota with P.H.A.S.A. and would not return to Canada. (Tr. 305:10-12.)
Aden further alleges that Aly continued to call her repeatedly and eventually he stated “if
you take the child and leave, then I never want to hear from you or her the rest of your
life.” (Tr. 305:14-18.) Aly denies that any of these phone calls occurred, and alleges that
he did not learn that Aden and P.H.A.S.A. were in Minnesota until he called one of
Aden’s relatives in Minnesota.
(Tr. 64:16-20.)
The Court finds Aden’s testimony
credible to the extent that it believes Aly knew from phone calls on April 27 that Aden
and P.H.A.S.A. were en route to Minnesota. Aly’s testimony about when he learned that
Aden and P.H.A.S.A. were in Minnesota was vague, and he did not testify as to which
relative he talked to or when. Additionally, Aly’s inaction after the departure of his wife
and daughter are inconsistent with him not knowing their whereabouts.
47.
Aden and P.H.A.S.A. arrived in Minnesota on April 27, 2012. (Tr. 305:
19-20.) Aden sent Aly an instant message informing him that she and P.H.A.S.A. had
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arrived safely in Minnesota. (Tr. 306:25-307:2.) Aden’s townhome tenant made other
living arrangements, and Aden and P.H.A.S.A. eventually moved into this home.
(Tr. 350:3-16.)
48.
Aden testified that on June 1, 2012, Aly called and asked her to return to
Canada. (Tr. 307:20-308:2.) Aly called several more times. (Tr. 308:6-7.) Aden
testified that on June 5, 2012, Aly called Aden and told her that he would kill her for
taking away his daughter. (Tr. 308:9-11.) Aly denied making a threat to kill Aden and
alleges that Aden called him to tell Aly he would never see P.H.A.S.A. again. (Tr. 86:49.)
49.
In response to the allegedly threatening phone call, Aden filed an order for
protection in Anoka County against Aly on June 6, 2012. (Tr. 308: 13-16; Resp. Ex. 79.)
Aly was not served with the order for protection (Tr. 309:2-3.) An affidavit attached to
the order for protection indicates that Aly refused to accept service when it was attempted
by Canadian authorities. (Resp. Ex. 79 at 002.)
50.
Also on June 5, 2012, Aly contacted the Waterloo Police Department to
report that his car was missing. (Tr. 64:23-25, 65:14-18; Resp. Ex. 75 at 019.) When
Aly contacted the police, he told him that his wife had left but he was concerned only
with the car and did not want to report Aden missing. (Tr. 65:24-66:1; Resp. Ex. 75 at
009.) Initially, Aly did not report that P.H.A.S.A. was missing. (Resp. Ex. 75 at 006,
014.) Instead, Aly concocted an elaborate story and lied to the police, telling them that
P.H.A.S.A. was still in Canada and was staying with his cousin. (Tr. 112:8-10, 114:5-15;
Resp. Ex. 75 at 004-015.) Aly told the police that he visited P.H.A.S.A. at his cousin’s
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home weekly and called his cousin daily to check on P.H.A.S.A. (Resp. Ex. 75 at 006.)
Aly claims he did not tell the police that P.H.A.S.A. was missing because he did not want
to get Aden “in trouble.” (Tr. 66:23-25.) Aly told the police that he had last seen Aden
on May 3, 2012, and did not initially attempt to contact her when she did not return
home. (Resp. Ex. 75 at 004, 007.) Aly stated that he contacted Aden’s family in
Minnesota and they told him that Aden had not come to Minnesota. (Id. at 005.) Aly
also told the police that Aden had stolen his laptop, a claim the Court finds not credible
based on the documentary evidence. (Tr. 93-101.)
51.
On June 13, 2012, Aly filed an application in an Ontario court seeking an
order awarding custody of P.H.A.S.A. to Aly. (Resp. Ex. 33.) The court ordered on an
interim basis that Aly “shall have sole custody of [P.H.A.S.A.],” and that “the primary
residence of [the child] shall be with [Aly].” (Pet. for Return of Minor Child, Ex. 2 at
10.)
VI.
CONTROL ISSUES BETWEEN ALY AND ADEN
52.
Aly and Aden share a joint bank account at the TD Canada Trust Bank.
(Tr. 43:9-11; Pet. Ex. 23.) Aden has other bank accounts in New York and Minnesota,
which she never made joint with Aly. (Tr. 43:23-25, 44:3-7.) However, Aly had the user
names and passwords for online access to Aden’s American accounts. (Tr. 335:11-13.)
Aden provided extensive testimony that Aly exerted some control over her finances,
primarily by requesting that Aden withdraw money from her accounts and provide it to
Aly. (Tr. 332-37; Resp. Ex. 28.)
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53.
Aden also offered extensive testimony about Aly’s access to and use of
Aden’s online accounts. In July 2012 Aly accessed Aden’s facebook account and had an
instant messaging conversation with one of Aden’s friends while posing as Aden. (Resp.
Exs. 30, 30T; Tr. 238:25-239:15, 240:5-241:13, 243:4-249:25.) Aden also provided
testimony, which the Court finds credible, that Aly accessed Aden’s e-mail account, and
may have sent e-mails posing as Aden. (Tr. 351-58; Resp. Ex. 13-14.)
54.
Aly holds some beliefs about women, their abilities, and value, which have
manifested in distasteful remarks and attacks on the self-esteem of his various female
partners. (Tr. 215:15-21, 236:14-22, 331:12-14, Resp. Ex. 25 at 004.) Aly has made
disparaging remarks about women, calling them “sluts,” “needy,” and “[d]esparately
looking for a man.” (Tr. 215:15-21.) Additionally, Aly believes that women should be
subservient to their husbands. (Resp. Ex. 75 at 36; Tr. 236:14-22.)
55.
With respect to Aden specifically, Aly viewed her – a 30-year-old divorced
woman from Somalia – as a woman of little value. (Tr. 330:14-19.) Aly found less
educated women to be more appealing and would have preferred Aden to stay at home
rather than work. (Tr. 331:2-11, 332:16-20.) Finally, Aly told Aden she was “just a
nurse, woman” and “d[id]n’t count for much.” (Tr. 331:13-14.)
VII.
ALY’S PREVIOUS RELATIONSHIP
56.
One of Aly’s ex-wives, Nora Roundtree, offered testimony about her
relationship with Aly. (Tr. 222:23-223:3.) Ms. Roundtree alleges that during their
relationship, Aly physically abused her three times – twice squeezing her jaw and once
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punching her in the head. (Tr. 223:10-16.) Ms. Roundtree also alleges that Aly verbally
abused her and undermined her self-esteem. (Tr. 223:8-9, 236:14-22.) Aly denies that he
abused Ms. Roundtree. (Tr. 104:14-21.)
57.
In April 2002, Ms. Roundtree obtained a temporary restraining order from a
Louisiana State Court against Aly. (Resp. Ex. 38; Tr. 224:11-13.) The Louisiana court
found that based on the allegations presented by Ms. Roundtree, she had “good and
reasonable grounds to fear for her . . . safety.” (Resp. Ex. 38 at 002.) This temporary
restraining order was never served on Aly.
(Tr. 226:2-4.)
Aly allegedly came to
Ms. Roundtree’s house during the time period when the temporary restraining order was
in effect. (Tr. 230:5-7, 20-24.)
VIII. FEMALE GENITAL MUTILATION
58.
Aden alleges that Aly approves of the practice of female genital mutilation
(“FGM”). (Tr. 327:2-9.) Aden also alleges that Aly asked Aden to take P.H.A.S.A. to
Aden’s mother, who lives in Kenya, to have the child undergo FGM. (Tr. 327:24-328:4.)
Aden testified that Aly then stated that if Aden’s mother would not do the procedure, Aly
would take P.H.A.S.A. to his mother in Egypt to have the procedure done. (Tr. 328:511.)
59.
Aly denies that he approves of FGM or that he would subject P.H.A.S.A. to
FGM and instead alleges that Aden’s mother and Aden herself have been advocates of
subjecting P.H.A.S.A. to the procedure. (Tr. 145:7-12, 146:1-5.)
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60.
Aden has undergone FGM, and Aden’s mother had the procedure
performed on Aden’s younger sister despite Aden’s protests. (Tr. 327:24-328:4, 328:21329:1.) None of Aly’s female family members have undergone FGM, and Aly alleges
that none of his family members support the practice. (Tr. 145:2-6.)
61.
Ms. Roundtree also alleges that Aly believes in FGM. Ms. Roundtree
alleges that she and Aly had a daughter together and Ms. Roundtree gave her daughter a
different last name to protect her from Aly. (Tr. 226:15-18, 228:22-229:14.) Aly denies
that he is the child’s father. (Tr. 105:17-22.)
62.
Aden presented expert testimony from Elizabeth Boyle about the practice
of FGM. (See Resp. Exs. 67-69.) Aly presented expert testimony from Mr. Abed Awad,
an expert on Islamic law, about the practice of FGM. (See Pet. Ex. 26.)
63.
FGM is associated with physical and psychological harm. (Tr. 136:11-14,
275:19-276:1.)
FGM can cause, among other things, hemorrhaging, infection, and
complications with childbirth, as well as anxiety disorders, depression, and posttraumatic stress disorder. (Tr. 137:5-16, 255:4-17.)
64.
Boyle testified that a number of factors specific to Aly put P.H.A.S.A. at
risk of being subjected to FGM. These factors include that Aly is a Salafi Muslim from
Egypt, that Aly “apparently said he wanted to have [P.H.A.S.A.] circumcised,” that Aly
“has shown an interest . . . in women’s chastity,” and that Aly has demonstrated a
conservative approach toward Islam as evidenced by his belief in polygamy for males
and his history of serial divorces. (Tr. 137:20-22, 256:5-257:17.) Boyle alleges that the
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most likely cause of harm to P.H.A.S.A. would be if Aly took her to Egypt, where “it’s
easy to get the practice performed.” (Tr. 259:14-19.)
65.
Mr. Awad testified that many variables enter into whether a child is
subjected to FGM. FGM is less likely as the level of education and economic status of
the child’s parent’s increases, and is also less likely where parents were raised in a
metropolitan area and currently live in a country where the practice is not prevalent.
(Tr. 270:9-271:3, 281:25-282:3, Tr. 282:23-283:2.)
66.
FGM is not a practice mandated by Islam. (Tr. 277:13-18.) And the
mainstream Islamic organizations’ position is that the practice is unIslamic. (Tr. 282:1921.) Additionally, FGM is not an accepted or prevalent practice in North America and is
illegal in both Canada and the United States. (Tr. 284:21-25.)
IX.
EXPERT TESTIMONY ON DOMESTIC VIOLENCE
67.
Dr. Jeffrey Edelson holds a PhD in social work, and provided expert
testimony regarding the likelihood of future domestic violence based on a perpetrator’s
history. (Resp. Ex. 41.)
68.
Dr. Edelson testified that four risk factors influenced his opinion that Aly
was likely to commit physical and psychological abuse in the future: (1) the prior record
of violence; (2) Aly’s alleged threat to kill Aden; (3) Aly and Aden’s estrangement since
April 2012; and (4) Aly’s pattern of exerting coercive control over Aden. (Tr. 174: 7-25,
176-84.) Of these factors, Dr. Edelson’s was particularly concerned about the previous
violence and threats to kill, and viewed coercive control as troubling in light of these
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other factors. (Tr. 184:16-185:7.) Dr. Edelson also testified that “there is a great cooccurrence of physical abuse against multiple family members, against mothers and
children in the same families.” (Tr. 178:16-18.) Finally, Dr. Edelson opined that “there
is a grave risk of physical harm and psychological harm to the infant [P.H.A.S.A.]
involved in this case . . . [s]hould she be returned” to Canada. (Tr. 173:6-10.)
X.
CANADA’S LEGAL RESOURCES
69.
Helen Gladkykh provided expert testimony about the legal systems
available in Canada for victims of abuse. (Tr. 153:10-13.) Gladkykh is a barrister,
solicitor, and notary public, specializing in family law, who practices in Ontario. (Id.)
70.
The Public Health Agency of Canada coordinates a family violence
initiative, which “is a long-term commitment of the government of Canada to address
violence within the relationship of kinship, intimacy, dependency or child.” (Tr. 154:1724.)
71.
Pursuant to Ontario’s Child and Family Services Act, all Ontario citizens
“who have reasonable grounds to suspect that a child is subject to moral, physical or
sexual abuse have [a] positive obligation to report such suspicions and information to the
government agencies.” (Tr. 155:9-20.)
72.
Victims of family violence in Ontario have various resources available to
them including “assistance of police and ambulance services, counseling services, crisis
lines and distress centers, house clinics and hospitals, legal assistance, transitional
houses, [and] victim services.” (Tr. 156:8-14.)
- 22 -
73.
Legal resources in Ontario for victims of family violence include
restraining orders, orders for exclusive possession of the matrimonial home, and orders
requiring supervised access to children. (Tr. 156:15-157:5.) In cases where a Canadian
court determines that “there is at least a minimal risk of violence toward the child,” the
Court is under an obligation to impose arrangements where the potentially violent parent
has access to the child only during specific periods of supervised time. (Tr. 157:6-10.)
74.
If P.H.A.S.A. is returned to Canada, Aden would be entitled to participate
fully in the custody proceedings that Aly initiated. (Tr. 157:15-19.)
CONCLUSIONS OF LAW
This case is brought under the Hague Convention on the Civil Aspects of
International Child Abduction, 19 I.L.M. 1501, 1988 WL 411501 (1980) (the
“Convention”). The United States is a contracting state to the Convention, and the
International Child Abduction Remedies Act (“ICARA”) implements its provisions. See
42 U.S.C. §§ 11601 et seq. Canada is also a signatory to the Convention. See Miller v.
Miller, 240 F.3d 392, 395 n.1 (4th Cir. 2001).
The Convention was adopted “in response to the problem of international child
abductions during domestic disputes.” Abbott v. Abbott, ___ U.S. ___, 130 S. Ct. 1983,
1989 (2010). The purpose of the Convention is to “protect children internationally from
the harmful effects of their wrongful removal or retention caused either by the removal of
a child from the state of its habitual residence or the refusal to return a child to the state
of its habitual residence.”
Barzilay v. Barzilay, 536 F.3d 844, 846 (8th Cir. 2008)
- 23 -
(internal quotation marks omitted). To effectuate its goal, the Convention seeks “‘to
secure the prompt return of children wrongfully removed to or retained in any
Contracting State,’ and ‘to ensure the rights of custody and of access under the law of one
Contracting State are effectively respected in other Contracting States.’” Id. (quoting
Convention, art. 1). The central operating feature of the Convention is the return remedy.
Abbott, 130 S. Ct. at 1989. Unless certain exceptions apply, the Convention provides that
a child under the age of sixteen who is wrongfully removed in violation of “rights of
custody” must be returned to the child’s country of habitual residence. Convention,
arts. 3, 5, 12; 42 U.S.C. § 11601.5
Returning the child to the country of habitual
residence “restore[s] the pre-abduction status quo” and serves to “deter parents from
crossing international borders in search of a more sympathetic forum.” Furnes v. Reeves,
362 F.3d 702, 710 (11th Cir. 2004).
A decision under the Convention is not an
adjudication of the merits of any underlying custody claim. Convention, arts. 16, 19; 42
U.S.C. § 11601(b)(4); Barzilay, 536 F.3d at 847. Rather the Convention and ICARA
merely “govern[] selection of the forum where such a [custody] dispute should be
brought.” Stern v. Stern, 639 F.3d 449, 451 (8th Cir. 2011).
5
P.H.A.S.A. is one year old, and therefore is within the age range of children subject to
the Convention’s provisions. Convention, art. 4.
- 24 -
I.
WRONGFUL REMOVAL UNDER THE CONVENTION
A.
Prima Facie Case
To obtain relief under the Convention, the petitioner must prove by a
preponderance of the evidence that his children were “wrongfully removed or retained
within the meaning of the Convention.” 42 U.S.C. § 11603(e)(1)(A). The Convention
provides:
The removal or retention of a child is to be considered wrongful where –
a) it is in breach of rights of custody attributed to a person . . . 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.
Convention, art. 3. To establish that removal was wrongful within the meaning of the
Convention, the petitioner must therefore prove that: (1) the petitioner was exercising a
right of custody at the time of the removal, which right was breached by the removal; and
(2) the country petitioner seeks to have the child returned to is the child’s country of
habitual residence. Convention arts. 3, 5, 12; 42 U.S.C. § 11601.
B.
Right of Custody
The Convention defines “right of custody” as including “rights relating to the care
of the person of the child and, in particular, the right to determine the child’s place of
residence.” Convention, art. 5(a). Courts broadly interpret a parent’s right of custody
under the Convention. See Abbott, 130 S. Ct. at 1991 (concluding that even parental
- 25 -
rights which do “not fit within traditional notions of physical custody” can be sufficient
to establish a right of custody under the Convention’s “broad definition”).
The parties here do not dispute that in April 2012 Aly was exercising a right of
custody over P.H.A.S.A. Ontario law provides that “the father and the mother of a child
are equally entitled to custody of the child.” Children’s Law Reform Act, R.S.O. 1990,
c. C.12, s. 20(1).6 Prior to her removal, P.H.A.S.A. lived with both Aly and Aden, and
Aly, as her father, was exercising his right to custody under Canadian law. The parties
agree that this right included the right to determine where P.H.A.S.A. resided, and that
the right was breached when Aden removed P.H.A.S.A. from Canada.
C.
Habitual Residence
Removal of a child is only wrongful within the meaning of the Convention, if it
“breaches the rights of a custodian under the law of the State in which the child was
habitually resident immediately before removal.” Sorenson v. Sorenson, 559 F.3d 871,
873 (8th Cir. 2009) (internal quotation marks omitted). Accordingly, if P.H.A.S.A.’s
habitual residence was not Canada in April 2012, the Convention would not compel her
return to Canada.
A habitual residence determination is a mixed question of law and fact. Silverman
v. Silverman, 338 F.3d 886, 896 (8th Cir. 2003).
The Convention does not define
“habitual residence” but directs courts to determine the habitual residence of the child at
6
The full text of the Children’s Law Reform Act can be found at http://www.elaws.gov.on.ca/html/statutes/english/elaws_statutes_90c12_e.htm
- 26 -
the point in time “immediately before the removal or retention.” Convention, art. 3.
A child can have only one habitual residence, and “it should not be confused with
domicile.” Silverman, 338 F.3d at 898. A child’s habitual residence is “the place where
he or she has been physically present for an amount of time sufficient for acclimatization
and which has a ‘degree of settled purpose’ from the child’s perspective.” Feder v.
Evans-Feder, 63 F.3d 217, 224 (3d Cir. 1995). “[S]ettled purpose need not be to stay in a
. . . location forever, but the family must have a ‘sufficient degree of continuity to be
properly described as settled.’” Silverman, 338 F.3d at 898 (quoting Feder, 63 F.3d at
223).7
In determining whether a particular place satisfies the standard for habitual
residence, “[t]he child’s perspective should be paramount,” and “[p]arental intent is not
dispositive.”
Stern, 639 F.3d at 452.
Finally, habitual residence is determined by
examining “past experience, not future intentions.” Nunez-Escudero v. Tice-Menley,
58 F.3d 374, 379 (8th Cir. 1995) (internal quotation marks omitted).
This case involves a different question than the typical Convention case. Rather
than determining whether there was a change in habitual residence, the Court must
determine whether eight-month-old P.H.A.S.A. ever established a habitual residence in
7
See also Feder, 63 F.3d at 223 (explaining that settled purposed does not require an
intent “to stay where [the child] is indefinitely. Indeed his purpose while settled may be for a
limited period. Education, business or profession, employment, health, family or merely love
spring to mind as common reasons for a choice of regular abode[.]” (internal quotation marks
omitted)).
- 27 -
Canada before being removed to the United States.8 See Delvoye v. Lee, 329 F.3d 330,
334 (3d Cir. 2003). In cases where the parents lack a settled intent to reside together at
the time of the child’s birth, the infant may not acquire a habitual residence in the country
in which she is born.9 However, “where a matrimonial home exists, i.e., where both
8
Aden argues that P.H.A.S.A.’s habitual residence has been the United States since her
birth. Aden asserts that she always intended for P.H.A.S.A. to reside in the United States. Aden
bases this argument upon two Eighth Circuit cases that have examined parental intent as one
factor in determining habitual residence. See, e.g., Stern, 639 F.3d at 451 (determining whether
the United States or Israel was the child’s habitual residence where the child was born in Israel
and later moved with his mother to Iowa by examining, among other factors, the parents’ intent
regarding the length and nature of the child’s stay in Iowa); Barzilay, 600 F.3d at 914-15, 918
(determining whether the United States or Israel was the children’s habitual residence where the
children had lived in the United States and traveled to Israel for the summer by examining the
parents’ intent regarding the move to Israel). Although both of these cases examined parental
intent as one relevant factor, neither of these cases involved a choice between two countries of
habitual residence, one of which the child has never even been to prior to the child’s removal. In
both of these cases, the Court examined parental intent “regarding the move.” See Barzilay, 600
F.3d at 918 (emphasis added). In this case there was no move; P.H.A.S.A. lived exclusively in
Canada for the first eight months of her life. Therefore the parental intent inquiry, as well as the
other factors examined in Stern and Barzilay regarding a change in habitual residence are largely
irrelevant to determining P.H.A.S.A.’s habitual residence. See Barzilay, 600 F.3d at 918
(examining such factors as “the purpose of the move to the new country,” “the change in
geography,” and “the acclimatization of the child to the new country” (emphases added)).
9
See Delvoye, 329 F.3d at 333-34 (“Where the parents’ relationship has broken down,
however . . . the character of the problem changes. Of course, the mere fact that conflict
developed between the parents does not ipso facto disestablish a child’s habitual residence, once
it has come into existence. But where the conflict is contemporaneous with the birth of the child,
no habitual residence may ever come into existence.”). In Delvoye, for example, the child’s
mother and father had met in New York where the mother resided. Id. at 332. The father was a
resident of Belgium, but moved into the mother’s New York apartment, spending a quarter of his
time there. Id. Several months after learning that she was pregnant, the mother traveled to
Belgium for purposes of delivering the baby, because the father refused to pay the cost of
delivery in the United States, and Belgium offered free medical services. Id. The mother
applied for a three-month visa which she did not extend when it expired. Id. She maintained her
New York apartment and left the majority of her belongings there. Id. The mother and father’s
relationship had broken down by the time the baby was born, and when the child was two
months old the mother removed him to the United States. Id. The court concluded that the child
never developed a habitual residence in Belgium because the mother and father “lack[ed] the
(Footnote continued on next page.)
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parents share a settled intent to reside, determining the habitual residence of an infant
presents no particular problem, it simply calls for application of the analysis under the
Convention with which courts have become familiar.”
Id. at 333.
Under these
circumstances, even very young infants can acquire a habitual residence. See NunozEscudero v. Tice-Menley, 58 F.3d 374, 378-39 (8th Cir. 1995).10 In Nunoz-Escudero, the
child’s father, a Mexican citizen, married the child’s mother, an American citizen, in
Mexico. Id. at 375. Less than a year later, the mother gave birth to the child in Mexico.
Id. Two months later the mother left Mexico, and took the child with her to her family’s
home in Minnesota. Id. The mother argued that she had “no intention of remaining in
Mexico,” and that the child was too young to form a habitual residence in Mexico. Id. at
378. The Court rejected the mother’s argument because “the baby was born and lived
only in Mexico until his mother fled to the United States. To say that the child’s habitual
residence derived from his mother would be inconsistent with the Convention, for it
would reward the abducting parent and create an impermissible presumption that the
child’s habitual residence is wherever the mother happens to be.” Id.
____________________________________
(Footnote continued.)
requisite ‘degree of common purpose’ to habitually reside in Belgium.” Id. at 334. Instead, the
evidence showed that the mother had traveled to Belgium solely for purposes of giving birth, and
intended for the child to be a habitual resident of the United States immediately following his
birth. Id. (“Where a child is born while his . . . mother is temporarily present in a country other
than that of her habitual residence it does seem . . . that the child will normally have no habitual
residence until living in a country on a footing of some stability.” (internal quotation marks
omitted)).
10
Although the Nunoz-Escudero court left the ultimate determination of habitual
residence to the district court on remand, the analysis and decision to remand indicate the court’s
belief that an infant is capable of acquiring a habitual residence.
- 29 -
In the present case, the Court finds that P.H.A.S.A. was a habitual resident of
Canada prior to her removal. Aly and Aden were married in Canada before P.H.A.S.A.’s
birth. At the time of their daughter’s birth Aly and Aden had lived together in a Canadian
apartment for over fifteen months. Both Aly and Aden were obligated on the lease,
which extended through May 31, 2012. Additionally, P.H.A.S.A. was born in Canada,
acquired Canadian citizenship, and lived in Canada for eight months before being
removed to the United States. Prior to her removal, P.H.A.S.A. had never been to the
United States. All of these facts indicate that Aly and Aden shared a settled intent to
reside with P.H.A.S.A. in their matrimonial home in Canada.11
That Aden retained numerous ties with the United States does not alter the Court’s
conclusion that P.H.A.S.A. was a habitual resident of Canada. Although Aden worked in
New York and stayed there on days she worked, and also maintained a driver’s license,
bank accounts, property, and family connections in the United States, the evidence shows
that Aden maintained her residence with Aly and P.H.A.S.A. in Ontario both before and
after P.H.A.S.A.’s birth. Aden’s contacts with the United States show that she may have
intended to relocate her family to the United States in the future, but it does not contradict
her and Aly’s settled purpose to remain in Canada, and raise their child there at least until
11
See Nicolson v. Pappalardo, 605 F.3d 100, 104 (1st Cir. 2010) (finding that Australia
was the child’s habitual residence, even though the mother claimed she had formed the intent to
move from Australia to the United States before the child was born where the child’s father was
a citizen of Australia, her mother, being pregnant had returned to Australia to marry the father,
the couple had married and was living together in Australia at the time of the child’s birth, the
child was born in Australia and lived there for three months with both of her parents before her
mother removed her to the United States).
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Aly was finished with graduate school.12 See Feder, 63 F.3d at 223 (explaining that
habitual residence may be based on the settled purpose of obtaining education, albeit for
a limited period).13
Additionally, Aly and Aden’s original plans for P.H.A.S.A. to be born in the
United States say nothing about their plans for where P.H.A.S.A. was to reside after her
birth, which is the relevant inquiry in determining habitual residence. See Delvoye, 329
12
To the extent Aden characterizes her intent regarding P.H.A.S.A. as a present intent to
raise P.H.A.S.A. in the United States immediately following her birth, this intent is insufficient
to establish habitual residence. A parent’s unilateral intention to move to another country does
not establish a child’s habitual residence in that country. See Silverman, 338 F.3d at 898; see
also Ruiz v. Tenorio, 392 F.3d 1247, 1253 n.3 (11th Cir. 2004) (“Standing alone, of course, the
mother’s intent that the child should one day live in the United States could not support a finding
of habitual residence.”). Further, the Court need not decide whether Aly sincerely intended to
move away from Canada in the future, because these are future intentions which do not form the
basis of the habitual residence inquiry. See Nunez-Escudero, 58 F.3d at 379 (explaining that
habitual residence is determined by examining “past experience, not future intentions”).
13
Aden has asked for an adverse inference with respect to habitual residence due to emails and instant messages which she alleges that Aly deleted. These e-mails allegedly
contained discussions of Aly’s intention to ultimately move to Minnesota with Aden and the
child. Because Aly allegedly destroyed these e-mails, Aden asks that the habitual residence of
P.H.A.S.A. be determined in her favor. To invoke the adverse inference sanction “there must be
a finding of intentional destruction indicating a desire to suppress the truth.” Stevenson v. Union
Pac. R.R. Co., 354 F.3d 739, 746 (8th Cir. 2004). An adverse inference is a severe sanction that
is only appropriate “upon a showing of bad faith.” Stepnes v. Ritschel, 663 F.3d 952, 965
(8th Cir. 2011). The Court need not determine whether an adverse inference would be
appropriate, because even if the e-mails revealed Aly’s intention to move to Minnesota
eventually, those e-mails would not contradict the settled, present intention of Aden and Aly to
raise their daughter in Canada. There was no evidence presented that Aly had any intention of
prematurely abandoning his graduate studies in order to move to the United States immediately
upon P.H.A.S.A.’s birth. Furthermore, to the extent the e-mails contained evidence of Aly’s
agreement to allow Aden and P.H.A.S.A. to move to Minnesota without him following her birth,
this evidence would be irrelevant in light of (1) Aden’s failure to move P.H.A.S.A. to Minnesota
until eight months after her birth; and (2) Aden’s refusal to give birth in Minnesota when Aly’s
visa application was denied, suggesting that Aden had no intention of raising P.H.A.S.A. apart
from Aly until she made the unilateral decision to return to Minnesota in April 2012.
- 31 -
F.3d at 333-34 (finding that merely traveling to another country to give birth due to
health care costs did not establish a child’s habitual residence in the country of birth). No
evidence was presented that Aly and Aden intended to move to the United States
immediately following P.H.A.S.A.’s birth. Instead, the record reflects only that the
couple intended P.H.A.S.A. to be born in the United States due to Aden’s health
insurance coverage. Indeed, shortly before P.H.A.S.A. was born Aly and Aden entered
into a year-long lease in Canada, indicating that Canada is where they intended to reside
with their child. Moreover, after P.H.A.S.A. was born, Aden entered into another lease
with the tenant living in her Minnesota townhome extending through April 30, 2013,
suggesting that, although Aden may have contemplated moving back to Minnesota in the
future, for the time being, Aden, Aly, and P.H.A.S.A. were settled in Canada.
Furthermore, Aly did not have a United States passport, could not legally enter the United
States, and was in the midst of pursuing his graduate degree in Canada. The evidence
presented by Aden merely indicates that, at some point, she and possibly Aly intended to
change P.H.A.S.A.’s habitual residence, which is insufficient to demonstrate that
P.H.A.S.A.’s habitual residence was anywhere but Canada at the time when she brought
P.H.A.S.A. to Minnesota. See In re Kim, 404 F. Supp. 2d 495, 514 (S.D.N.Y. 2005)
(“[E]ven if there is some evidence that the parties intended to shift the habitual residence
of [the child], the law requires both a change in geography and that the child become
acclimatized to the new residence for a shift in habitual residence.”).
Finally, although the intent of the parents is relevant, the Court must also examine
the habitual residency inquiry from the perspective of P.H.A.S.A. See Stern, 639 F.3d at
- 32 -
452. Although P.H.A.S.A. was only eight months old when she was removed from
Canada, unlike cases involving very young infants, there is evidence suggesting some
degree of acclimatization.
In eight months, P.H.A.S.A. had never been outside of
Canada. P.H.A.S.A. had begun to form important contacts in Canada. P.H.A.S.A. was a
Canadian citizen and was the recipient of Canadian child benefits. Moreover, P.H.A.S.A.
attended all of her doctor’s appointments in Canada, including several visits to specialists
related to a possible genetic disorder. See Sorenson v. Sorenson, 559 F.3d 871, 873
(8th Cir. 2009) (finding the child’s habitual residence to be Australia, the country she in
which “the majority of her connections were” and where she “had spent the majority of
her life”).14 Therefore, the Court concludes that P.H.A.S.A. was a habitual resident of
Canada at the time of her removal, and Aly has therefore made out a prima facie case for
return under the Convention.
II.
AFFIRMATIVE DEFENSES
A.
Acquiescence or Consent
In her counterpetition, Aden alleges that P.H.A.S.A.’s removal was not wrongful
because Aly consented and acquiesced to P.H.A.S.A. remaining in Minnesota. The Court
is not bound to order the return of the child if the person who opposes the return
establishes that “the person . . . having the care of the person of the child . . . had
14
See also Friedrich v. Friedrich, 983 F.2d 1396, 1402 (6th Cir. 1993) (“This is a simple
case. Thomas was born in Germany and resided exclusively in Germany until his mother
removed him to the United States . . . therefore, we hold that Thomas was a habitual resident of
Germany at the time of his removal.”).
- 33 -
consented to or subsequently acquiesced in the removal or retention.” Convention, art.
13(a).
Aden has the burden of proving Aly’s consent or acquiescence by a
preponderance of the evidence.
42 U.S.C. § 11603(e)(2)(B).
The Court narrowly
construes both of these exceptions. See 42 U.S.C. § 11601(a)(4); Larbie v. Larbie, 690
F.3d 295, 308 (5th Cir. 2012).
Consent refers to “the petitioner’s conduct prior to the contested removal or
retention, while acquiescence addresses whether the petitioner subsequently agreed to or
accepted the removal or retention.” Baxter v. Baxter, 423 F.3d 363, 371 (3d Cir. 2005).
Both acquiescence and consent are subjective inquiries, and focus on the “actual
subjective intention of the wronged parent, not o[n] the outside world’s perception of his
intentions.” Antunez-Fernandes v. Connors-Fernandes, 259 F. Supp. 2d 800, 813 (N.D.
Iowa 2003) (internal quotation marks omitted); see also Larbie, 690 F.3d at 308-09 &
n.14. “In examining a consent defense, it is important to consider what the petitioner
actually contemplated and agreed to in allowing the child to travel outside its home
country.
The nature and scope of the petitioner’s consent, and any conditions or
limitations, should be taken into account.” Baxter, 423 F.3d at 371. Consent can be
evidenced by a petitioner’s informal statements or conduct. Nicolson v. Pappalardo, 605
F.3d 100, 105 (1st Cir. 2010). For example, helping prepare for the child’s departure and
arranging alternative living arrangements with the knowledge that one parent will be
leaving with the child can be evidence of consent. Id. at 106. Acquiescence may be
established in various ways, including, “an act or statement with the requisite formality,
such as testimony in a judicial proceeding; a convincing written renunciation of rights; or
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a consistent attitude of acquiescence over a significant period of time.” Friedrich v.
Friedrich, 78 F.3d 1060, 1070 (6th Cir. 1996) (internal quotation marks and footnotes
omitted); see also Nicolson, 605 F.3d at 106-07.
Aden has not presented any evidence that Aly consented to her taking P.H.A.S.A.
to Minnesota before April 26, 2012. Instead, the evidence shows that Aly did not help in
preparing Aden and P.H.A.S.A. for their journey to the United States. Nor did Aly know
about Aden’s planned trip and fail to object. Rather, Aly thought that Aden was merely
taking P.H.A.S.A. to a doctor’s appointment.
Similarly, Aden has failed to present evidence of acquiescence. Only two facts in
the record could possibly support a claim of acquiescence. First is the phone call from
Aly to Aden in which he allegedly stated “if you take the child and leave, then I never
want to hear from you or her the rest of your life.” This statement provides only
speculative support at best for a claim of abandonment of Aly’s right of custody over
P.H.A.S.A. Moreover, a single emotional statement does not amount to evidence of a
consistent attitude of acquiescence over a significant period of time. Second is the fact
that Aly waited almost a month before contacting authorities regarding P.H.A.S.A. and
initially lied to the police about her disappearance. A month does not constitute a
“significant period of time” for purposes of proving acquiescence under the Convention.
See Friedrich, 78 F.3d at 1070 (finding that a delay of 21 days before obtaining a custody
order did not constitute acquiescence). Additionally, Aly’s initial failure to tell the police
that P.H.A.S.A. was missing does not constitute an affirmative renunciation of his rights
to custody, nor does Aly’s constantly shifting story to the police demonstrate “a
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consistent attitude of acquiescence over a period of time.” Id. Instead, the Court finds
that Aly’s filing of an application for custody in an Ontario court, and “resolutely
s[eeking] custody of his [daughter] since that time” demonstrates that Aly did not consent
or acquiesce in P.H.A.S.A.’s removal. See id.
B.
Grave Risk of Harm
Aden argues that returning P.H.A.S.A. to Canada would put the child at a grave
risk of physical and psychological harm because of Aly’s history of abuse and desire to
subject P.H.A.S.A. to FGM. Under the Convention, the Court is not bound to order the
return of the child if the person who opposes the return establishes that “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.” Convention, art. 13(b). Aden has
the burden of proving a grave risk of harm by clear and convincing evidence. 42 U.S.C.
§ 11603(e)(2)(A). As an exception to operation of the Convention, the grave risk of harm
defense is narrowly construed. Rydder v. Rydder, 49 F.3d 369, 372 (8th Cir. 1995).
“[S]erious abuse or neglect” can qualify as a grave risk of harm under Article
13(b).” Silverman v. Silverman, 338 F.3d 886, 900 (8th Cir. 2003) (en banc) (internal
quotation marks and citations omitted). The grave risk inquiry is narrow in scope, and
“there must be evidence of a grave risk of harm to [the] child, not solely to a parent or
some other third party.” Acosta v. Acosta, Civ. No. 12-342, 2012 WL 2178982, at *7
(D. Minn. June 14, 2012).
The Article 13b inquiry does not include an adjudication of the underlying
custody dispute, and only requires an assessment of whether the child will
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face immediate and substantial risk of an intolerable situation if he is
returned to [his home country] pending final determination of his parents’
custody dispute. It is not relevant to this Convention exception who is the
better parent in the long run, or whether [the mother] had good reason to
leave her home . . . and terminate her marriage to [the father], or whether
[the mother] will suffer if the child she abducted is returned to [the home
country].
Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 377 (8th Cir. 1995). “[B]ecause the Hague
Convention provides only a provisional, short-term remedy in order to permit long-term
custody proceedings to take place in the home jurisdiction, the grave-risk inquiry should
be concerned only with the degree of harm that could occur in the immediate future.”
Gaudin v. Remis, 415 F.3d 1028, 1037 (9th Cir. 2005) (emphasis added).15 The petitioner
cannot rely on generalized evidence but must produce “specific evidence of potential
harm.” Rydder, 49 F.3d at 373.
With respect to physical and psychological abuse specifically, where the child
herself has been subjected directly to serious physical and psychological abuse, the grave
risk defense is typically met. See Blondin v. Dubois, 238 F.3d 153, 161-62 (2d Cir. 2001)
(explaining that where “the child faces a real risk of being hurt, physically or
psychologically” the grave risk of harm exception is met). 16
Typically, however,
“general evidence concerning abuse of the mother is not sufficient to establish the Article
15
See also Friedrich v. Friedrich, 78 F.3d 1060, 1069 (6th Cir. 1996) (explaining that
there is only a grave risk of harm “when return of the child puts the child in immediate danger
prior to the resolution of the custody dispute” (emphasis in original)).
16
See also Rodriguez v. Rodriguez, 33 F. Supp. 2d 456, 459-60 (D. Md. 1999) (denying a
petition for return where the petitioner belt-whipped, punched, and kicked the child, and choked
and broke the respondent’s nose)
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13(b) exception that return will expose the child to a grave risk of harm.” Rowe v.
Vargason, Civ. No. 11-1966, 2011 WL 4529341, at *7 (D. Minn. Sept. 28, 2011) (citing
Nunez-Escudero, 58 F.3d at 376).
In cases where abuse toward a spouse “is relatively
minor . . . it is unlikely that the risk of harm caused by return of the child will rise to the
level of a ‘grave risk’ or otherwise place the child in an ‘intolerable situation.’” Simcox
v. Simcox, 511 F.3d 594, 607 (6th Cir. 2007) (emphasis in original). But “where spousal
abuse evinces a propensity towards violence and is accompanied by other risk factors
specific to the child, a grave risk of harm to a child may be found.” Acosta, 2012 WL
2178982 at *7 (citing Baran v. Beaty, 526 F.3d 1340, 1346 (11th Cir. 2008)). A petitioner
must demonstrate a connection between the harm to her in returning to the home country
and a risk to the child. See Abbott, 130 S. Ct. at 1997.
With these principles in mind, the Court concludes that Aden has failed to
demonstrate that P.H.A.S.A. will face a grave risk of harm if she is returned to Canada.17
The Court takes very seriously any and all allegations of domestic abuse – whether
physical or psychological. However, for a number of reasons the Court finds Aden’s
17
In making this determination, the Court has considered the testimony of Dr. Edelson
regarding risk factors for domestic abuse. However, the Court notes that it is tasked with
determining whether P.H.A.S.A. will face a grave risk of harm, not whether Aly is statistically
likely to continue to abuse Aden if their relationship continues. Additionally, the Court does not
rely on Dr. Edelson’s ultimate conclusion that P.H.A.S.A. will be subjected to a grave risk of
harm because Dr. Edelson’s conclusions specific to this case are based on a number of factual
allegations which this Court has determined are not credible. Finally, the Court rejects as a basis
for its decision Dr. Edelson’s reliance on “estrangement” as a factor contributing to a finding of
grave risk, as nearly every Convention case, by its very nature, involves some estrangement of
the parents.
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allegations that P.H.A.S.A. will face a grave risk of physical or psychological harm at
the hands of Aly are either not credible or fail to meet the standard of clear and
convincing evidence required by the grave risk exception.
First, the Court finds that Aly has not directly abused P.H.A.S.A. as it found
Aden’s testimony alleging that Aly threw P.H.A.S.A. across the room and kneed Aden in
the stomach while she was pregnant to be insufficiently credible to satisfy the heightened
standard for establishing the grave risk exception. Therefore, the Court is faced with
determining only whether Aden’s other allegations of abuse sufficiently demonstrate
Aly’s general propensity to be violent as well as identify specific risk factors with respect
to P.H.A.S.A. See Acosta, 2012 WL 2178982 at *7.
The court finds that Aly physically abused Aden on at least four occasions18 – in
the fall of 2010, on February 27, 2011, in July 2011, and on April 25, 2012.19 However,
the Court found Aden’s testimony regarding the severity of the February and April
violent episodes to be exaggerated. The incidents in the fall of 2010 and July 2011
involved some pushing and slapping. While truly unfortunate, these isolated instances of
18
Aden has also asked for an adverse inference with respect to grave risk due to the fact
that Aly allegedly deleted an instant message in which he admitted to striking Aden in the head.
Because the Court finds that Aly did physically abuse Aden, and considers this in making its
grave risk determination, it need not consider whether an adverse inference would otherwise be
appropriate.
19
In making this determination the Court gives weight to Ms. Roundtree’s testimony that
Aly was physically abusive during their relationship. Ms. Roundtree’s testimony supports
Aden’s allegations that Aly was physically abusive. However, Ms. Roundtree’s testimony also
supports a finding that Aly’s episodes of physical abuse were isolated and not particularly
severe.
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abuse aimed at the mother do not rise to the level of severity required to meet the grave
risk exception, which focuses on a grave risk of harm to the child that would occur prior
to the resolution of a custody dispute and must be established by clear and convincing
evidence.
Additionally, Aly’s abuse was not characterized by prolonged violent
outbursts. See Acosta, 2012 WL 2178982 at *8 (finding a grave risk of harm in part
because petitioner’s “violent outbursts are not only severe, they are of a lasting duration”
where one of petitioner’s rages lasted for weeks). Indeed the record reflects that Aly’s
outbursts of rage were short-lived, and after becoming physically violent he would
immediately become calm and resume normal life activities.
Finally, and most
importantly, the Court finds that these incidents of violence have not directly impacted
P.H.A.S.A. This violence was not perpetrated against P.H.A.S.A., and only one incident
allegedly occurred in P.H.A.S.A.’s presence. Accordingly, the Court finds that, although
regrettable, the instances of physical abuse perpetrated by Aly against Aden are
insufficient to demonstrate by clear and convincing evidence that P.H.A.S.A. will be
subjected to a grave risk of harm.20 See Whallon v. Lynn, 230 F.3d 450, 460 (1st Cir.
20
Aden relies on three cases in particular to support her argument that Aly’s abuse
constitutes a grave risk of harm to P.H.A.S.A. The Court finds all of these cases distinguishable
from the factual situation presented in the instant case. In Walsh v. Walsh, 221 F.3d 204 (1st Cir.
2000), the husband had severely beaten his wife for more than five years, including when she
was pregnant. The beatings also took place in front of their children. Additionally, the husband
threatened to kill a neighbor, fled the country when charged with that threat, refused to return
when a fugitive warrant was entered, and violated Irish court orders when he stayed away from
his home. Id. at 208-11. The court held that such evidence was sufficient to establish a grave
risk. Id. at 221. In this case, the long history of severe abuse, perpetrated in front of the child, is
lacking. Similarly lacking is evidence that Aly has violated Court orders. The Court notes that
Aly has not attempted to violate Aden’s current order for protection. Additionally, Aly was
(Footnote continued on next page.)
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____________________________________
(Footnote continued.)
never served with Ms. Roundtree’s order for protection; therefore any allegations that Aly came
to Ms. Roundtree’s house when the order was in effect are insufficient to demonstrate that Aly
knowingly violated a court order. The Court believes that Aly’s past behavior does not
demonstrate that he will be unable to comply with orders of a Canadian court with respect to this
child custody proceeding. Finally, although Aly may have threatened to kill Aden in a phone
call, in light of the other facts, the Court finds the risks in the current case do not rise to the level
present in Walsh and do not satisfy the Article 13(b) exception.
Aden also relies on Baran v. Beaty, 526 F.3d 1340 (11th Cir. 2008), in which the court
concluded that the child, Sam, would be subjected to a grave risk of physical and psychological
harm if returned to his father Baran. The district court in Baran had concluded that
Baran abuses alcohol on a daily or near-daily basis, that he is susceptible to
lengthy drinking and gambling binges that in no way abated during the five
months that Sam habitually resided with him, that he is only marginally able to
care for his own basic needs, that he has no close family members or friends that
could reasonably be expected to have meaningful involvement in Sam’s day-today care and protection, that he is emotionally unstable and prone to uncontrolled
destructive outbursts of rage, that he was physically and verbally abusive toward
Beaty in Sam’s presence, that he physically endangered Sam (both intentionally
and unintentionally) when Sam lived under his roof, and that Baran repeatedly
and pointedly stated to Beaty after Sam’s birth that he did not want Sam, that Sam
should have been aborted, that Sam would die if Sam “became an American,” and
that Beaty could not blame him if “something happened to” Sam.
Id. at 1345-46 (internal quotation marks omitted). The facts of this case, again, are readily
distinguishable. There is no evidence that Aly abused alcohol or engaged in any other addictive
behaviors that would put P.H.A.S.A. at risk. Aly is well-educated, supports himself financially,
and is able to care for his own basic needs. Additionally, the Court has found not credible
allegations that Aly was unable to care for P.H.A.S.A. or endangered her either intentionally or
unintentionally. Additionally, Aly has never threatened to kill or harm P.H.A.S.A.
Finally, Aden relies on Van De Sande v. Van De Sande, 431 F.3d 567 (7th Cir. 2005). In
Van De Sande, the husband beat his wife frequently, and seriously – often choking her, throwing
her against walls, and kicking her shins. These beatings occurred several times a week, and the
husband’s mother would often join in the beatings. After their children were born, the beatings
continued, and were often carried out in front of the children. The husband also spanked and
struck the children, and once grabbed a child by the throat and shoved her out of the room. The
husband also repeatedly threatened to kill the children and his wife. Id. at 569-70. The facts of
this case simply do not present the serious pattern of abuse present in Van De Sande sufficient to
sustain the grave risk exception.
- 41 -
2000) (finding the mother’s “allegations of verbal abuse and an incident of physical
shoving” distinct from “the clear and long history of spousal abuse” necessary to
establish grave risk).21
Additionally, the Court finds the allegations that Aly will subject P.H.A.S.A. to
FGM to be too speculative to demonstrate a grave risk of physical and psychological
harm by clear and convincing evidence. Although subjecting P.H.A.S.A. to FGM would
clearly constitute a grave harm, the grave risk inquiry focuses on “immediate” risks.
Nunez-Escudero, 58 F.3d at 377.22 At most, the record contains allegations that Aly
believes in the practice and has expressed a desire to subject his daughter to the
procedure, potentially by taking her to Egypt. None of the female members of Aly’s
family have undergone the procedure, suggesting that immediate family pressure is not
21
See also Nunez-Escudero, 58 F.3d at 376-77 (holding that evidence that the child’s
father refused to acquire a car seat, that the child’s grandfather hit his child, and that the father
physically, sexually, and verbally abused the child’s mother were insufficient to prove there was
a grave risk to the child); Vasquez v. Colores, Civ. No. 10-3669, 2010 WL 3717298, at *9
(D. Minn., Sept. 14, 2010) (“In this case, there is no evidence of severe physical abuse, or
evidence that Petitioner threatened others or has a history of violating court orders. Rather the
evidence presented demonstrated that Petitioner and Respondent did have arguments during
which Petitioner raised his voice and engaged in limited physical contact with Respondent
. . . .”); Lachhman v. Lachhman, No. 08-CV-4363, 2008 WL 5054198, at *9 (E.D.N.Y., Nov. 21,
2008) (concluding that petitioner’s arrest on domestic abuse charges did not establish grave risk
because there was no evidence that the petitioner ever harmed the child); Laguna v. Avila, No. 07
CV 5136, 2008 WL 1986253, at *8-9 (E.D.N.Y., May 7, 2008) (finding that there was no grave
risk where the petitioner had been violent to respondent but there was no evidence that petitioner
physically abused the child).
22
In making this determination, the Court gives little weight to the testimony of
Ms. Boyle and Mr. Awad. Both experts testified to the statistical probability of Aly subjecting
P.H.A.S.A. to FGM based on Aly’s background and religious beliefs. Although these factors are
not entirely irrelevant, the Court finds that the heart of this case turns on whether Aly actually
would subject P.H.A.S.A. to FGM and whether this threat is immediate – not whether his
background suggests he may be statistically more or less likely to do so.
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an issue. The record does not reflect that Aly would be able to obtain this procedure in
the United State or Canada, which the Court finds mitigates any immediate risk to
P.H.A.S.A. Aly is not currently in possession of P.H.A.S.A.’s passport, and the Court
finds no reason the passport cannot be kept in the possession of a neutral party pursuant
to a Canadian court order during the duration of the custody proceedings. Should Aly’s
alleged desire to subject P.H.A.S.A. to FGM manifest itself into actual plans to carry out
the procedure, the Court believes that the Canadian court is equipped to prevent this
occurrence. Finally, Aden’s family history – having undergone the procedure herself and
having a mother who subjected Aden’s younger sister to the procedure despite Aden’s
protests – suggests that it is possible that P.H.A.S.A. may face just as great of a risk of
undergoing the procedure while under her mother’s custody as she would face if she was
returned to Canada.
Further, the Court finds that the generalized evidence presented by Aden about
Aly’s controlling behavior and disrespect toward women is insufficient to establish that
P.H.A.S.A. will be subjected to a grave risk of psychological harm if she is returned to
Canada for purposes of resolving Aly and Aden’s custody dispute. See Walker v. Kitt,
___ F. Supp. 2d ___, 2012 WL 5237262, *7-8 (N.D. Ill., Oct. 24, 2012) (“The Court must
reluctantly conclude that returning the Child to a community that may only ever afford
her second-class status because of her gender does not pose a grave risk of harm as
intended by Article 13(b) of the Convention.”). Although Aly’s apparent devaluation of
women is undoubtedly troubling, the Court does not find that these views will subject
P.H.A.S.A. to grave psychological harm in the period of time that custody proceedings
- 43 -
are pending in Canada. Moreover, although Aly may have exerted control of Aden’s
finances, there is no allegation that this control ever endangered P.H.A.S.A.’s safety or
well-being.
Finally, when determining whether a child will face a grave risk of harm, the
Court is tasked with considering the environment to which the child would be returning.
See Nunez-Escudero, 58 F.3d at 377. Although not dispositive of the grave risk question,
this environmental consideration may include assessing the availability of a competent
judiciary and other resources in the country for dealing with domestic violence. See
Acosta, 2012 WL 2178982, at *8 (citing Nunez-Escudero, 58 F.3d at 377-78). Here,
“courts in the abducted-from country are as ready and able as we are to protect children.”
Friedrich, 78 F.3d at 1068. “If return to a country, or to the custody of a parent in that
country, is dangerous, we can expect [Canada]’s courts to respond accordingly. . . . When
we trust the court system in the abducted-from country, the vast majority of claims of
harm – those that do not rise to the level of gravity required by the Convention –
evaporate.” Id.
Canada offers an extensive array of social and legal services to parents engaged in
custody disputes and those who are victims of domestic abuse. Upon P.H.A.S.A.’s return
to Canada, Aden will be allowed to fully participate in custody proceedings, and will be
entitled to challenge the ex parte order of the Ontario court awarding sole custody to Aly.
Additionally, Aden can seek a restraining order against Aly, an order for exclusive
possession of the matrimonial home, and an order requiring supervised access to
P.H.A.S.A. Finally, Aden can seek counseling and victim services. See Miller v. Miller,
- 44 -
240 F.3d 392, 403 (4th Cir. 2001) (“[W]e are confident that if [petitioner] truly poses a
danger to her children, the Ontario courts are ready and able to take every step to protect
them.”).23 In order to allow Aden time to avail herself of these services to prevent any
possibility of harm, of any nature, to herself or P.H.A.S.A. the Court will allow Aden up
to twenty days to return P.H.A.S.A. to Canada. Twenty days allows for P.H.A.S.A.’s
prompt return, while giving Aden a reasonable amount of time to make necessary travel
and other arrangements.
See Silverman v. Silverman, Civ. No. 00-2274, 2003 WL
22076555, at *2 (D. Minn. Aug. 28, 2003) (allowing twenty days to return children to
Israel); see also Antunez-Fernandes v. Connors-Fernandes, 259 F. Supp. 2d 800, 817
(N.D. Iowa 2003) (allowing approximately thirty days to return child to France).
The Court stresses that under the Convention, it is not charged with resolving this
custody dispute between Aden and Aly, determining which party is a better parent, or
inquiring into the best interests of P.H.A.S.A. The Court is constrained to determining
whether Aden has demonstrated by clear and convincing evidence that P.H.A.S.A. would
be subjected to a grave risk of physical or psychological harm if returned to Canada. See
Rowe v. Vargason, Civ. No. 11-1966, 2011 WL 4529341, at *10 (“Although there is
evidence that while they were together, the parties had a contentious relationship, and
that Petitioner physically and emotionally abused Respondent, the Article 13(b)
exception applies only where the evidence is clear and convincing that the child is subject
23
See also Foster v. Foster, 654 F. Supp. 2d 348, 362 (W.D. Pa. 2009) (returning the
child to Canada where “no evidence has been produced . . . that the Canadian judiciary or other
appropriate Canadian authorities are incapable or unwilling to give the child adequate
protection” (internal quotation marks omitted)).
- 45 -
to a grave risk of physical or psychological harm or would otherwise be placed in an
intolerable situation, if returned to Australia. On the record currently before the Court,
the evidence does not meet that threshold.”).24 Here, the Court finds that Aden has failed
to make such a showing.
C.
Violation of Fundamental Humanitarian Rights
Finally, Aden argues that returning P.H.A.S.A. to Canada would be a violation of
fundamental humanitarian rights. Article 20 of the Convention provides that “[t]he return
of the child under the provisions of Article 12 may be refused if this would not be
permitted by the fundamental principles of the requested State relating to the protection
of human rights and fundamental freedoms.” Aden has the burden of proving a violation
of humanitarian rights by clear and convincing evidence. 42 U.S.C. § 11603(e)(2)(A).
The defense for violation of fundamental human rights is “restrictively interpreted and
applied . . . on the rare occasion that return of the child would utterly shock the
conscience of the court or offend all notions of due process.” Hazbun Escaf v. Rodriguez,
200 F. Supp. 2d 603, 614 (E.D. Va. 2002) (internal quotation marks omitted); see also
Castro v. Martinez, 872 F. Supp. 2d 546, 557 (W.D. Tex. 2012) (declining to apply the
exception where the respondent alleged that corruption in Mexico would prevent a fair
determination of child custody upon the child’s return). The Court has found no cases in
24
Antunez-Fernandes, 259 F. Supp. 2d at 816 (“[T]he Hague Convention . . . does not
give the court in the abducted-to country a license to speculate on where the children would be
happiest; that decision is a custody matter and is reserved to the court in the country of habitual
residence.”).
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which a United States court has applied this exception to prevent the return of a child.
Hazbun Escaf, 200 F. Supp. 2d at 614 (“The parties have not cited, nor has the Court
found, any authority applying the Article 20 exception . . . .”).
Aden relies on the same allegations for invoking the grave risk of harm exception
as she does to invoke the exception under Article 20. Because the Court has already
determined that these same allegations do not establish by clear and convincing evidence
that returning P.H.A.S.A. to Canada would subject P.H.A.S.A. to a grave risk of harm, it
need not consider the exception for fundamental humanitarian rights, as the two articles
are essentially redundant in the case. See Hazbun Escaf, 200 F. Supp. 2d at 614 n.37
(“Article 20 and Article 13b appear to be redundant. If the return of the child would
violate fundamental U.S. principles relating to human rights, it would also involve
returning him to an intolerable situation.”).
Nothing about returning P.H.A.S.A. to
Canada “utterly shocks the conscience of the [C]ourt” or otherwise offends “notions of
due process.” See id. at 614.
III.
ATTORNEYS’ FEES
In his petition, Aly requests that the Court award all legal costs, fees, and travel
expenses incurred in securing the return of P.H.A.S.A. The Convention provides that:
Upon ordering the return of a child or issuing an order concerning rights of
access under this Convention, the judicial or administrative authorities may,
where appropriate, direct the person who removed or retained the child, or
who prevented the exercise of rights of access, to pay necessary expenses
incurred by or on behalf of the applicant, including travel expenses, any
costs incurred or payments made for locating the child, the costs of legal
representation of the applicant, and those of returning the child.
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Convention, art. 26. ICARA additionally provides that
Any court ordering the return of a child pursuant to an action brought under
section 11603 of this title shall order the respondent to pay necessary
expenses incurred by or on behalf of the petitioner, including court costs,
legal fees, foster home or other care during the course of proceedings in this
action, and transportation costs related to the return of the child, unless the
respondent establishes that such order would be clearly inappropriate.”
42 U.S.C. § 11607(b)(3). Because the Court has concluded that Aly has successfully
petitioned for the return of P.H.A.S.A. to Canada, Aden bears the burden of showing that
an award would be “clearly inappropriate.” Id. The Court has broad discretion in
determining whether an award of fees and costs would be clearly inappropriate. See
Whallon v. Lynn, 356 F.3d 138, 140 (1st Cir. 2004).
Although Aden is currently employed on a part-time basis, she has demonstrated
that due to her monthly income and expenditures, paying Aly’s attorneys’ fees and costs
would present a financial hardship. See Vasquez v. Colores, Civ. No. 10-3669, 2010 WL
3717298, at *10 (D. Minn. Sept. 14, 2010) (denying an award of fees and costs because
of respondent’s “current financial condition”). Additionally, Aden’s financial situation is
affected by the $13,000 hospital bill for P.H.A.S.A.’s delivery that is still outstanding, an
expense that Aden incurred on behalf of both herself and Aly. Moreover, the Court finds
that at least some of Aden’s current financial hardship is due to the control that Aly
exerted over her funds while Aden was living in Canada, including Aly naming himself
as the recipient of P.H.A.S.A.’s Canadian Child Benefits.
That Aly contributed to
Aden’s straitened financial circumstances makes an award of fees to Aly inappropriate.
Finally, the Court finds that Aly “bears at least some responsibility for the acrimony
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between the parties.” See Silverman v. Silverman, Civ. No. 00-2274, 2004 WL 2066778,
at *4 (D. Minn. Aug. 26, 2004). The Court has determined that Aly did not provide
truthful testimony, and was physically and verbally abusive toward respondent. These
factors are appropriately considered in determining whether a fee award would be
appropriate. See id. Further, in light of Aden’s financial circumstances, an award of fees
could compromise Aden’s ability to care for P.H.A.S.A. See Rydder v. Rydder, 49 F.3d
369, 373-74 (8th Cir. 1995); see Silverman, 2004 WL 2066778, at *4. For all of these
reasons, the Court therefore finds that an award of attorneys’ fees and costs is clearly
inappropriate in this case.
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1.
Petitioner’s Petition for Return of Minor Child [Docket No. 1] is
GRANTED.
2.
P.H.A.S.A. shall be RETURNED to Canada in the company of Aden no
later than twenty (20) days from the entry of this Order.
3.
Aden shall not remove P.H.A.S.A. from the District of Minnesota prior to
her return trip to Canada unless she first receives written permission from this Court.
Written requests for such permission shall be copied to petitioner and his counsel.
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4.
As soon as arrangements for the return are made, Aden shall inform the
Court and petitioner, in writing, of the date and travel information for the journey, and
shall inform the Court and petitioner of any subsequent modifications of the schedule.
5.
The passports of P.H.A.S.A. and Aden are to remain in the custody of
Aden’s attorneys until Aden proffers the Court with the travel plans noted above.
6.
Should Aden be unwilling to accompany P.H.A.S.A. in keeping with this
Order, the Court will issue a separate order providing for P.H.A.S.A.’s return through
other means, which determination may depend on Aly’s ability to enter the United States.
7.
The issue of permanent custody of P.H.A.S.A. is to be determined by the
Canadian courts.
8.
Aly’s request for attorneys’ fees and costs is DENIED.
DATED: February 14, 2013
at Minneapolis, Minnesota.
____s/
____
JOHN R. TUNHEIM
United States District Judge
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