Braude v. Zierler

Filing 48

OPINION & ORDER: For the foregoing reasons, Petitioner's request for relief under the Hague Convention is DENIED. The Petition is dismissed, and each party shall bear its own costs. The Court's prohibition on the removal of the children from this district during the pendency of this action is hereby lifted. The Clerk of Court is respectfully directed to enter judgment in favor of Respondent, and close this case. (Signed by Judge Nelson Stephen Roman on 7/29/2022) (ate) Transmission to Orders and Judgments Clerk for processing.

REDACTED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
7/29/2022

GADI BRAUDE,
Petitioner,

22 CV 03586 (NSR)

v.

OPINION & ORDER

DORONA MIA ZIERLER,
Respondent.

NELSON S. ROMÁN, United States District Judge:
Petitioner Gadi Braude (“Petitioner” or “the Father”) brought this case against respondent
Dorona Mia Zierler (“Respondent” or “the Mother”) pursuant to the Hague Convention on the
Civil Aspects of International Child Abduction (the “Hague Convention”), and the International
Child Abduction Remedies Act, 22 U.S.C. § 9001 et seq. (“ICARA”) seeking the immediate return
of their two sons to Canada. (ECF No. 5.) Beginning on July 11, 2022, the Court held a three-day
evidentiary hearing. The parties then submitted post-hearing briefing. (ECF Nos. 45 & 46.) After
carefully considering the evidence, the parties’ briefs, and the applicable law, Petitioner’s request
for relief under the Hague Convention is DENIED.
BACKGROUND
The following facts are taken from the parties’ filings, testimony provided at the
evidentiary hearing, and the record.
I.

The Family
The Mother and Father began to date in 2012 and were married on July 13, 2014. (Ex. 9;

Ex. 15 at GB000122.) They have two children, the oldest (“Child 1”) was born in 2017, and the

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youngest (“Child 2”) was born in 2021. (Ex. 15 at GB000122.) Both children were born in
Ontario, Canada and resided there at all times prior to December of 2021. (Id.)
The parties participated in couple’s counseling with Linda Hovanessian starting in July of
2016. (Ex. Z.) Respondent alleges Petitioner has a history of violent behavior and coercive
control, including being physically aggressive even after being asked to stop, throwing and
breaking objects, having fits of explosive anger, and forbidding her from speaking to her family,
friends, and therapist about him. (Ex. 15 at GB000189.) Specifically, Respondent recalls instances
where playful wrestling would turn into physical aggression to the point where she would feel
pain. (Id. at GB000195; Hearing Tr. at 316:7-22; 332:17-25; 334:3-13.) In one instance, the
couple was horsing around when Petitioner bit Respondent so hard it left a bruise. (Ex. Z.) In
another instance, Respondent informed Petitioner that she had shared information about him with
her therapist, and Petitioner became angry and threw his cellphone in Respondent’s direction and
left the home. (Id.) Respondent also recalled a time where Petitioner pulled a necktie around her
neck so tight that she started to see black and thought she was going to pass out. (Hearing Tr. at
317:16-23.)
In regards to the children, Respondent testified that some of this behavior would occur
between Petitioner and Child 1. At times, Petitioner would play with or wrestle with Child 1 to
the point where the child would cry and ask to stop, and Petitioner would ignore him. (Hearing
Tr. at 392:1–394:22.)
II.

The Father’s Mental Health History
Petitioner has been depressed since he was ten years old. (Ex. C at GB000214.) He has

had a longstanding history of depression “characterized by chronic low energy and motivation.”
(Id. at GB000213.) Petitioner attempted to end his life at ages ten, twelve, and thirty. (Ex. D at

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GB000220.) At age ten Petitioner tried to jump in front of a truck, at age twelve Petitioner tried
to cut himself with a knife, and at age thirty Petitioner tried to kill himself with a ribbon after a
fight with Respondent. (Ex. F. at GB000253.) Petitioner has been diagnosed with Borderline
Personality Disorder (“BPD”) and “narcissistic traits.” (Ex. C at GB000215; Ex. F. at GB000253.)
BPD is treated with Dialectical Behavioral Therapy (“DBT”), an intensive therapy that takes years
to become effective. (Hearing Tr. at 217:2–218:19.) Petitioner has not participated in DBT. (Id.
at 228:4-6.)
Petitioner was brought to the Sunnybrook Health Sciences Centere (“Sunnybrook”) by
police on December 23, 2019 after a fight with Respondent led her to call the police due to concern
for his safety. (Ex. C at GB000213; Ex. D at GB000216.) Petitioner reported experiencing
thoughts about wishing to be dead and general thoughts of wanting to end his life. (Ex. D at
GB000216.) Petitioner was experiencing “a reduction in mood and suicidal ideation for 4 days”
and “experienced suicidal ideation 10-11 times during that 4-day period.” (Ex. C at GB000213.)
Just three days after his Sunnybrook visit, the parties were involved in a “serious argument”
resulting in Petitioner throwing his cellphone in Respondent’s direction. (Id.; Ex. Z.) The
argument started when Respondent told Petitioner that she had shared information about him with
her therapist, including that he is “verbally abusive.” (Ex. C at GB000213.)
Petitioner visited Sunnybrook again on January 10, 2020. (Ex. C. at GB00213.) This was
the first time Petitioner was diagnosed with BPD. (Hearing Tr. at 240:16–241:4.) On February
13, 2020, Petitioner’s primary care provider referred him to the Centre for Addiction and Mental
Health (“CAMH”) for treatment in their BPD clinic so that he could start DBT. (Ex. H at
GB000262; Hearing Tr. at 241:16–242:11.)

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On April 2, 2020, Petitioner attempted to commit suicide by trying to strangle himself in
front of Respondent. (Ex. I at GB000266.) Child 1 was asleep in the home at this time. (Hearing
Tr. at 361:23-24.) Petitioner was hospitalized for five days. (Ex. I at GB000266.) While
hospitalized, Petitioner was assessed and diagnosed with “Major Depression and Narcissistic
personality traits.” (Id. at GB000268.) The hospital offered a three-month psychiatric follow up
and couple’s counseling, and recommended DBT. (Id.) Petitioner was not willing to take
medication. (Ex. Z.) On April 22, 2020, his primary care provider referred him to CAMH for
treatment recommendations to address his “[l]ong standing [history] of mental health issues.” (Ex.
I at GB000266.) On July 2, 2020, Petitioner’s primary care provider again referred him to CAMH
for DBT to address his “[l]ong standing periods of low mood and emotional distress” and
“borderline traits.” (Ex. G at GB000257.)
III.

The Father’s Arrest 1

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The parties received a letter dated July 7, 2022 from the Ministry of the Attorney General in Ontario
stating that as Petitioner’s criminal case is ongoing, it “is limited in what information it can provide in order to
preserve the integrity of the ongoing prosecution, the fair trial rights of the accused and to protect against any
witness tainting.” (Ex. V.) Therefore, it declined to provide a copy of the statement Petitioner provided to police at
the time of his arrest as well as the child pornography evidence collected in the course of the investigation. (Id.)

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Petitioner was arrested on October 14, 2020 for possession of child pornography. (Ex. 15
at GB000123.)

On October 27, 2020, Petitioner was charged with possession
of child pornography and access of child pornography. (Ex. 15 at GB000123.) Petitioner was
released after his arrest with certain conditions, including that he “not [] be alone with anyone
under the age of 18 years UNLESS it is [his] biological son and [he has] obtained written
permission from Jewish Family and Child Service (“JFCS”) in advance.” (Ex. 12 at GB000031.)
Respondent was his original surety. (Ex. 15 at GB000123.) On October 14, 2020, the family
moved in with Petitioner’s parents. (Id. at GB000122.)
In October of 2020, Petitioner reported feeling suicidal to Hovanessian, and stated that
“every consecutive [suicide] attempt is going to get more dangerous.” (Ex. Z.) On November 10,
2020, Petitioner admitted to Hovanessian that he “had watched child pornography” and that he
“watched from the perspective of the one being abused or humiliated.” (Id.) In November of
2020, Petitioner began meeting with Benita Joy, a therapist from the Toronto Relationship
Counselling Clinic who had experience working with sex offenders. (Id.) He saw her every two
weeks for about two or three months. (Hearing Tr. at 244:1-18.) He terminated this treatment
after his attorney and another therapist told him it would not help with his criminal case. (Id. at
247:16–248:10.)

He then began treatment with another therapist every two weeks for

approximately two months. (Id. at 244:25–245:12.)

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Further, during this time, the couple repeatedly discussed the possibility of Respondent
taking the two children and going to live in New York with her parents. (Ex. 15 at GB000194.)
On December 10, 2020, during couple’s counseling, Petitioner stated that Respondent would
receive his life insurance if he died, that his son would not remember him, and “Dorona will recreate her life in the USA and find another husband.” (Ex. Z.) Respondent responded that they
are “in a loving relationship” and that she would “get[] through this no matter what, to build the
best life for [their children].” (Id.) On March 8, 2021, Petitioner again stated that Respondent
“need[ed] to be in the USA, to start a new life without [him]” and that hopefully his son would not
remember him. (Id.) The couple reported that Respondent’s parents were willing to support her
return to America. (Id.) When Petitioner remarked that Respondent was leaving him, she stated
that he was “putting [her and the children] first, making the ultimate sacrifice by allowing [them]
to go.” (Id.) Respondent also expressed her hope that her and Petitioner would reunite. (Id.)
Respondent reported the
medication having a positive effect on Petitioner. (Hearing Tr. at 343:13-25.)
On June 3, 2021, a representative from JFCS sent an email to the parties discussing next
steps. (Ex. A.) JFCS determined that it was “agreeable to having Dorona act as the supervisor of
Gadi” with the children under several conditions, including that (i) the family spend weekends
with Petitioner’s parents; (ii) Respondent supervise Petitioner with the children at all times; (iii)
Respondent continue therapy and allow JFCS to contact her therapist on a regular basis; and (iv)
JFCS approve the current living conditions and continue frequent home visits. (Id.) The family
was then able to move back home. (Ex. 15 at GB000122.)
On July 30, 2021, Petitioner’s primary care provider referred him to CAMH for psychiatric
consultation and diagnostic clarification as he had “recently been arrested” and “[h]is lawyer [was]

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requesting [an] updated psych assessment.” (Ex. J at GB000270.) The referral was not accepted,
and Petitioner was not able to see a doctor. (Hearing Tr. at 251:6-9.) Petitioner eventually began
working with Dr. Julien Gojer in response to the charges in January of 2022. (Ex. 15 at
GB000131.) Dr. Gojer is a clinical psychologist tasked with compiling a forensic risk assessment
on Petitioner, the purpose of which would assist the court in determining the likelihood of
Petitioner repeating his offenses in the future. (Hearing Tr. at 88:1-21; 95:2-5; 255:1-3.) Dr. Gojer
referred Petitioner for individual counseling with a registered social worker named Caroline
Kerjikian. (Ex. E at GB000227.) Petitioner’s sessions with Kerjikian began on December 20,
2021 and ended on April 11, 2022, with a total of 7.5 hours of counseling. (Id. at GB000227;
GB000248; GB000235.) Petitioner then began treatment with Rob Peach, a registered social
worker and sex therapist, in February of 2022. (Hearing Tr. at 78:11-25.) Petitioner was also
referred to Peach by Dr. Gojer. (Id. at 79:1-4.) Peach’s work with Petitioner “focuses on
developing and understanding an awareness of his sexual thoughts, interests, and to develop
strategies to help him to regulate his thoughts and urges.” (Id. at 79:5-9.) Peach has used “standard
evidence-based treatment approaches that are routinely used to treat men that have had difficulties
with the law as a result of their sexual behaviors.” (Id. at 80:10-14.) Over their nine sessions,
Petitioner was entirely cooperative. (Id. at 82:21-22; 83:10-12.)

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During the evidentiary hearing, Petitioner testified under oath that he was arrested after he
was shared two unnamed links that he immediately deleted once realizing they contained child
pornography. (Hearing Tr. at 156:22–158:11; 274:18-24.) Dr. Gojer’s assessment was not yet in
evidence at the time of Petitioner’s testimony, and a review of Petitioner’s admissions to Dr. Gojer
show that this testimony was untrue. In general, the Court found Petitioner’s testimony to be
evasive and unpersuasive, and the differences between Petitioner’s statements in court and his
admissions to Dr. Gojer call into question the veracity of his entire testimony. As New York courts
instruct, falsus in uno, falsus in omnibus, or “false in one thing, false in everything.”
IV.

The Separation
On December 28, 2021, the couple got into an argument after Respondent expressed her

desire to tell a friend about Petitioner’s pending charges. (Ex. F at GB000252; Ex. 15 at
GB000131.) The next morning, the argument continued, and Respondent left the house with the

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children to see her sister and father who were visiting. (Id.) Petitioner began having thoughts of
suicidal ideation and wanting to overdose on tequila and some zopiclone and hydromorphone.
(Ex. F at GB000252.) Instead, he called and spoke to his friend. (Id.) Petitioner then called
Kerjikian for a session. (Id.) He told her that the last few days were “draining” in part because he
and Respondent got into an argument the day before after she stated it was difficult to keep his
court case a secret from her friends. (Ex. E at GB000227-228.) He also stated he had suicidal
thoughts earlier that day and thought about taking sleeping pills and alcohol, but denied any intent
to act on those thoughts. (Id. at GB000228.) After this discussion, Petitioner felt better and was
not having suicidal ideation anymore. (Ex. F at GB000252.)
Respondent returned to the house that evening with her sister Sara Zierler, friend, Rae
Szereszewski, and Szereszewski’s husband. (Ex. 15 at GB000131.) Petitioner would not let them
into the house at first, but eventually let them in. (Id.) While waiting outside, Szereszewski called
the police and told them that Petitioner was suicidal. (Ex. F at GB000252; Ex. 15 at GB000131.)
Once let inside, Respondent immediately began packing a suitcase. (Hearing Tr. at 293:4-14.)
While Petitioner testified that he placed the children’s Canadian health cards in their suitcase so
that they could receive health care while in the country, Respondent, her sister, and Szereszewski
all testified that he also added the children’s birth certificates as well. (Id. at 293:4-18; 349:3-19;
428:5-15; 436:13-24.)
Around 5 p.m., Petitioner called Kerjikian back stating “his wife had just told him that she
wanted to leave” and that he was “very taken aback by the news and unsure what to do.” (Ex. E
at GB000228.) She encouraged him to call a friend or the crisis line. (Id.) Kerjikian received six
missed calls from Petitioner between 5:47 p.m. and 5:50 p.m. while with another client. (Id.) She
eventually connected with Petitioner at 6:08 p.m., and he indicated he was with the paramedics

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and police. (Id.) Kerjikian informed the police that she did not have concerns during their sessions
that day but could not comment on his current state. (Id.)
Petitioner was brought to CAMH by the police. (Ex. F at GB000249.) Petitioner informed
the treatment providers that he had thoughts of suicidal ideation but was no longer having those
tendencies. (Id.) He also stated that he was messaging Respondent who was not answering, and
that he was concerned she may leave the country with the children as her father was leaving for
the United States the next day. (Id. at GB000252.) CAMH listed Petitioner’s level of suicide risk
as low. (Ex. N at GB000285.) Petitioner was released after about three hours. (Ex. 15 at
GB000131.)
At around 9:30 p.m., Petitioner sent several text messages to Respondent that state “[c]an
you at least tell me what you are planning. Like are you going to the states tomorrow. You can’t
just take the kids are [sic] run . . . Can I at least say goodbye . . . Please don’t take them away . . .
If I don’t here [sic] from you in the morning I will call the police and tell them that you have taken
the kids with out [sic] my permission.” (Ex. 15 at GB000132; GB000160.) Respondent did not
respond. (Id.)
Petitioner had a session with Kerjikian the next morning. (Ex. E at GB000229.) He stated
that the night before he was taken to CAMH for observation and released to his friend’s home.
(Id.) He also stated that Respondent told him she was leaving with the children and that he was
“distraught.” (Id.) He stated he “has since learned that his wife is in the United States with the
children” and that he “contacted the police and [JFCS].” (Id.) Petitioner learned the children’s
whereabouts by tracing the Mother’s cellphone location. (Hearing Tr. at 131:13-17; 174:5-8.)
On January 6, 2022, the couple had a mediation session with Hovanessian. (Ex. Z.) The
counselor notes that Respondent “left for the USA taking their children, according to [Petitioner]

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without his consent.” (Id.) Petitioner reported feeling “blindsided” and that he wanted to talk it
through. (Id.) Respondent stated she was surprised he was so shocked, and that she hit her limit.
(Id.) Petitioner continued that Respondent “left without telling [him]” and “made the decision
without [him].” (Id.)
On January 21, 2022 2, JFCS sent a letter to the couple advising that it would be closing the
family’s file as “child protection concerns are mitigated due to the mother no longer residing in
Canada at this time therefore the father is not having in-person access visits with his children” and
therefore “the children are no longer in need of protection.” (Ex. 13.) JFCS recommended that if
the children were to return or have access to the Father without supervision, that it be contacted
immediately to access risk. (Id.) JFCS also continued to recommend that “the [F]ather not
participate in unsupervised access and that the [M]other maintain her full supervision of the
children with the [F]ather or a third party that understands the concerns and level of supervision
required.” (Id.) This same day, Petitioner’s parents were made his sureties. (Ex. 12.) Petitioner
moved back in with his parents on February 3, 2022. (Ex. 14; Ex. 15 at GB000123.)
On February 15, 2022, Petitioner filed requests for Return of Child pursuant to the Hague
Convention.

(Ex. 4.)

On March 1, 2022, Respondent’s attorney emailed Petitioner’s

representative stating that Respondent was currently visiting her parents with the children, but
would like to be able to relocate with the children to continue receiving their help. (Ex. 15 at
GB000168.) Respondent testified that the children have adjusted to life in New York, with Child
1 accepted to a new school and making new friends, and Child 2 enjoying having more space and
time with extended family. (Hearing Tr. at 353:4-12.) Petitioner has not provided Respondent
any money for the children since they left Canada. (Id. at 359:10-18.)

2

The parties agreed that the date on the letter is a typo. (Hearing Tr. at 148:21-23.)

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On March 8, 2022, Petitioner filed an action in the Superior Court of Justice in Ontario
requesting an order for the immediate return of the children, as well as a divorce, support for
children, decision-making responsibility, parenting time, and contact with children. (Ex. 15 at
GB000119-120.) Petitioner requested an order that the children reside with him and his parents.
(Id. at GB000120.) On March 21, 2022 the Superior Court directed Respondent to ensure that the
children have zoom calls with Petitioner at least three times per week. (Ex. Y at Ex. E.) The
action has since been stayed. (Ex. 15 at GB000212.)
On May 16, 2022, the Family Court of the State of New York, Sullivan County issued a
temporary order of protection directing Petitioner to stay away from Respondent and the children,
and to refrain from communication or any other contact with Respondent and the children except
for his zoom calls three times per week. (Ex. Y at Ex. G.)
V.

Procedural History
On May 5, 2022, Petitioner filed a Petition for Return of Children to Canada pursuant to

the Hague Convention and ICARA. (ECF No. 5.) On May 6, 2022, the Court prohibited the
parties from removing the children from this jurisdiction pending final disposition of this matter,
and ordered the Mother to surrender passports, identity cards, visas, and other travel documents
for the children to her attorney. (ECF No. 12.) Respondent filed a response to the Petition on May
25, 2022. (ECF No. 22.) The Court conducted a three-day evidentiary hearing beginning on July
11, 2022.
LEGAL STANDARD
The Hague Convention “seeks to secure the prompt return of children wrongfully removed
to or retained in any Contracting State, and to ensure that rights of custody and of access under the
law of one Contracting State are effectively respected in the other Contracting States.” Abbott v.

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Abbott, 560 U.S. 1, 8 (2010). The United States is a Contracting State to the Hague Convention,
which has been implemented through ICARA. Id. at 9. The central remedy under the Hague
Convention is the return of the child to his or her habitual residence. Id. “When a child under the
age of 16 has been wrongfully removed or retained, the country to which the child has been brought
must ‘order the return of the child forthwith,’ unless certain exceptions apply.” Id. (quoting Hague
Convention, Arts. 4, 12.)

“Any person seeking to initiate judicial proceedings under the

Convention for the return of a child . . . may do so by commencing a civil action by filing a petition
for the relief sought in any court which has jurisdiction of such action . . . .” 22 USCS § 9003(b).
The Hague Convention provides that
[t]he removal or the retention of the child is to be considered wrongful where (a) it
is in breach of rights of custody attributed to a person, an institution or any other
body, either jointly or alone, under the law of the State in which the child was
habitually resident immediately before the removal or retention; and (b) at the time
of removal or retention those rights were actually exercised, either jointly or alone,
or would have been so exercised but for the removal or retention.
Abbott, 560 U.S. at 8 (quoting Hague Convention, art. 3). Therefore, to establish a prima facie
case of wrongful retention under the Hague Convention, a petitioner must demonstrate by a
preponderance of the evidence that
(1) the child was habitually resident in one State and has been removed to or
retained in a different State; (2) the removal or retention was in breach of the
petitioner’s custody rights under the law of the State of habitual residence; and (3)
the petitioner was exercising those rights at the time of the removal or retention.
Gitter v. Gitter, 396 F.3d 124, 130–31 (2d Cir. 2005). Once a petitioner establishes a prima facie
case, the child must be returned to the place of habitual residence unless “one of the affirmative
defenses set forth in Articles 12, 13, and 20 applies.” Cruvinel v. Cruvinel, No. 19-CV-4237
(LDH) (SIL), 2022 WL 757955, at *5 (E.D.N.Y. Jan. 10, 2022).

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DISCUSSION
Respondent has conceded that Petitioner has established his prima facie case.
(Respondent’s Post-Trial Brief (“Respondent’s Brief”) ECF No. 46 at 20.) Therefore, the only
remaining issue before the Court is whether one of the Hague Convention’s enumerated exceptions
applies that would prevent return of the children. Respondent argues two of the exceptions apply:
consent and grave risk of harm. (Id.) The Court will evaluate both below.
I.

Consent
Respondent avers that Petitioner consented to Respondent removing the children to the

United States. (Respondent’s Brief at 35-37.) Article 13 of the Hague Convention provides that
“the judicial or administrative authority of the requested State is not bound to order the return of
the child if . . . the person . . . having the care of the person of the child . . . had consented to or
subsequently acquiesced in the removal or retention.” Hague Convention, art. 13(a). To establish
this defense, the respondent must show by a preponderance of the evidence that the petitioner
consented to the removal or retention. Velozny v. Velozny, 550 F. Supp. 3d 4, 15 (S.D.N.Y. 2021).
The consent does not have to be formal, instead the Court must analyze the petitioner’s conduct
prior to the removal or retention, and “consider what the petitioner actually contemplated and
agreed to in allowing the child to travel outside its home country.” Id. (citing Berenguela-Alvarado
v. Castanos, 950 F.3d 1352, 1359 (11th Cir. 2020); Baxter v. Baxter, 423 F.3d 363, 371 (3d Cir.
2005)). “The key to the consent inquiry is the petitioner’s subjective intent, including the nature
and scope of the alleged consent.” In re Kim, 404 F. Supp. 2d 495, 516 (S.D.N.Y. 2005).
Here, Respondent has failed to prove by a preponderance of the evidence that Petitioner
consented to Respondent taking the two children to New York on December 29, 2021. The parties
do not dispute that on the day of the separation, the Mother left with the two children and did not

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tell Petitioner where they were going. Petitioner called and texted the Mother, who refused to
answer. Specifically, that evening, Petitioner texted the Mother asking what she was planning and
whether she was going to the United States, and begging her not to take the children away. See
Padilla v. Troxell, 850 F.3d 168, 176 (4th Cir. 2017) (“[A] petitioner’s conduct after removal can
further inform whether [he or] she consented at the time of removal.”) (emphasis in original);
Chumachenko v. Belan, No. 18-CV-9728-LTS, 2018 WL 6437062, at *8 (S.D.N.Y. Dec. 7, 2018)
(holding the respondent failed to prove that the consent defense applied where “Respondent’s
departure to the United States was immediately followed by contemporaneous text messages from
Petitioner protesting Respondent’s actions, lamenting his unilateral decision to take the Children
away from her, and refusing to write a letter allowing the Children to live with Respondent”).
Further, the notes from both Kerjikian and Hovanessian reflect that Petitioner did not know the
children would be taken to New York. Petitioner told Kerjikian the next morning that he was
“distraught” and that he had contacted the police. In addition, during the mediation session with
Hovanessian, Petitioner stated he was “blindsided”, and that Respondent made this decision
without him.
While the parties had discussions about the Mother and children going to live with her
parents in New York after Petitioner’s arrest, these discussions do not indicate Petitioner provided
consent to their removal at the time of the separation. See Velozny, 550 F. Supp. 3d at 16–17
(holding the petitioner did not consent to removal where emails showed the petitioner discussed
receiving assistance from his father-in-law in New York but eventually rejected the idea of sending
the children there); Laguna v. Avila, No. 07-CV-5136 (ENV), 2008 WL 1986253, at *7 (E.D.N.Y.
May 7, 2008) (holding that the parties’ custody agreement that stated that after returning to
Colombia the child could move to the United States if he so desired was insufficient to establish

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the petitioner consented to retention of the child in the United States). Further, there is no evidence
that these discussions occurred anytime after March 2021, around the same time the Father began
his medication, a medication that both parties indicated helped his depression.
While the Mother provided testimony showing that Petitioner gave her the children’s birth
certificates before they left the house, this, without more, is insufficient to establish Petitioner’s
subjective consent to her taking the children to live in New York. See Kosewski v. Michalowska,
No. 15-CV-928 (KAM)(VVP), 2015 U.S. Dist. LEXIS 139924, at *44–45 (E.D.N.Y. Oct. 14,
2015) (denying consent defense where the record established that petitioner accompanied
respondent to a passport office after she requested that he consent to the child obtaining a passport,
but the parties disputed whether respondent told petitioner that she planned to move to the United
States with the child prior to petitioner’s agreement); In re J.J.L.-P., 256 S.W.3d 363, 375 (Tex.
App.—San Antonio 2008, no pet.) (upholding denial of the consent defense where the petitioner
surrendered the child’s travel documents to the respondents because petitioner testified that he
surrendered the documents to permit the child to enter the country for the holidays only).
Accordingly, the Court holds that Respondent has failed to prove by a preponderance of
the evidence that Petitioner consented to the children’s removal and retention.
II.

Grave Risk
Petitioner next avers that there is a grave risk that returning the children to Canada would

expose them to harm. (Respondent’s Brief at 20-35.) Article 13 of the Hague Convention prevents
the Court from ordering the return of a child when “his or her return would expose the child to
physical or psychological harm or otherwise place the child in an intolerable situation.” Hague
Convention, art. 13(b). “The potential harm to the child must be severe, and the level of risk and
danger required to trigger this exception has consistently been held to be very high.” Abdollah

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Naghash Souratgar v. Fair, 720 F.3d 96, 103 (2d Cir. 2013). The respondent bears the burden of
establishing the defense by clear and convincing evidence. See 22 U.S.C. § 9003(e)(2)(A).
The defense requires a real risk of the child being harmed, as the Second Circuit has
explained:
at one end of the spectrum are those situations where repatriation might cause
inconvenience or hardship, eliminate certain educational or economic
opportunities, or not comport with the child’s preferences; at the other end of the
spectrum are those situations in which the child faces a real risk of being hurt,
physically or psychologically, as a result of repatriation. The former do not
constitute a grave risk of harm under Article 13(b); the latter do.
Blondin v. Dubois, 238 F.3d 153, 162 (2d Cir. 2001).
Here, Respondent argues that the record has established “Petitioner’s unstable mental
health and demonstrated history of engaging in dangerous and illegal activities” and that this
creates a probability of grave harm and an extreme magnitude of harm. (Respondent’s Brief at
22.) Specifically, Respondent avers that Petitioner’s untreated mental health issues, history of
domestic violence and coercive conduct, and access and possession of child pornography together
demonstrate a grave risk of harm to the children. (Id. at 20-27.) The Court agrees.
The record reflects an existence of factors in combination that create a grave risk of harm
if the children were returned to Canada. First, Petitioner has a long and serious history of untreated
mental health issues. Petitioner has had suicidal ideation and attempts since the age of ten. He
has attempted suicide three times, including once when Child 1 was asleep in the house. Petitioner
was diagnosed with BPD in 2020, but did not answer in the affirmative when asked if he accepts
his diagnosis. He was not prescribed medication until March of 2021, and has been unable to
begin the treatment needed for BPD. While he acknowledges a need for treatment and to unpack
past traumas, Petitioner has had an unstable history of treatment, and only recently began working
with a psychiatrist in response to his criminal charges.
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Respondent presented testimony from Dr. Elizabeth Jeglic, a clinical psychologist and
professor, who testified that DBT is an intense behavioral treatment for those with BPD and
repeated suicide attempts, which typically takes years to become effective. (Hearing Tr. at 214:914; 217:2-12.)

Without this therapy, BPD symptoms including self-harming, suicide, and

emotional instability, would continue. (Id. at 217:13-23.) Further, Dr. Jeglic discussed the
intergenerational suicide risk which states that a parent who attempts suicide increases the risk of
their children engaging in suicidal behavior. (Id. at 203:6-25.) 3 There is no doubt that exposing
the children to suicidal behavior would create a real risk of psychological harm.
Second, Petitioner has a concerning history of angry and manipulative behavior. He has
threatened to commit suicide, hit and shoved Respondent out of anger, continued play fights with
both Respondent and Child 1 when asked to stop due to pain, and strangled Respondent to the
point of almost passing out. Petitioner also has intense, angry reactions when the Mother merely
brings up discussing him with others, including her therapist. While most of this behavior was
directed at the Mother, “evidence of prior spousal abuse, though not directed at the child, can
support the grave risk of harm defense.” Davies v. Davies, 717 F. App’x 43, 47–48 (2d Cir. 2017)
(upholding the district court’s finding that the grave risk of harm defense applied as the petitioner
had a history of “pervasive, manipulative violence” that consisted of psychological abuse). This
is particularly concerning now, as the Mother has discussed Petitioner’s mental health issues and
criminal charges with a full range of people, including her family, friends, and the Court.
Third, and perhaps most important, is the Petitioner’s arrest for access and possession of
child pornography.
and has discussed having sexual fantasies involving children. While she did not examine

3

There was no objection to Dr. Jeglic opining on this issue.

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Petitioner, Dr. Jeglic testified that those who possess child pornography are at an increased of risk
of contact sexual abuse. (Hearing Tr. at 196:11-23.) Further,

Therefore, it
appears that Dr. Gojer has established that without treatment, Petitioner does create a risk to
children. See M.M v. F.R, No. 11 Civ. 2355 (PKC), 2011 U.S. Dist. LEXIS 156760, at *26
(S.D.N.Y. June 30, 2011) (holding a grave risk of harm existed where eight years prior the
petitioner engaged in sexual abuse of a child and had since had a “lack of a meaningful and
continuing regimen of rehabilitation”). Further, while the children are too young to understand
what is happening now, Child 1 will soon be at an age where he will start to question what is
happening to his family. The “derivative harm” of Child 1 eventually learning about his Father’s
actions could prove to be “psychologically devastating.” Id. at *23–24 (discussing how it could
be “psychologically devastating” for the child to learn that his father sexually abused his halfsister).
Petitioner cites to Kufner v. Kufner, 480 F. Supp. 2d 491 (D.R.I. 2007), to support his
argument that the exception does not apply.

(Petitioner’s Post-Evidentiary Hearing Brief

(“Petitioner’s Brief”) ECF No. 45 at 10.) In that case, the respondent alleged that the petitioner
“engaged the children in a photo session disguised to create child pornography; [] the children
[felt] abused by this . . . ; and . . . the German courts and child welfare agencies [were] incompetent
or otherwise unable to see what [she] perceive[d] as an obviously harmful situation.” Id. at 509.

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However, the court found an “overwhelming absence of any evidence suggesting the children were
subjected to sexual abuse, or, if returned, [would] be abused.” Id. The court appointed an
independent expert in pediatrics, child abuse, child sexual abuse, and child pornography to offer
her expert opinion on the respondent’s arguments. Id. at 503. The expert explicitly rejected the
conclusion that the photographs could be considered child pornography or that the petitioner took
them in an effort to create child pornography and stated that the symptoms displayed by the
children were not due to sexual abuse. Id. at 510–11. In addition, there was a complete absence
of any evidence suggesting that the petitioner was a pedophile. Id. at 510. As the court agreed
with the expert, and as the respondent failed to produce any evidence to the contrary, the court
held that the grave risk exception did not apply. Id. at 510–11. Kufner is clearly distinguishable
from the facts presented here, as Petitioner

, and has admitted to watching

child pornography and having sexual fantasies involving children.
In addition,
the Second Circuit has not ruled out “the possibility of a case in which a petition
seeking a child’s return [was] filed less than a year after the child’s abduction, but
it [was] nevertheless established ‘by clear and convincing evidence’ on the child’s
behalf that . . . she [or he] is so deeply rooted in the United States that ‘there is a
grave risk that [the child’s] return would expose the child to . . . psychological
harm.’”
Cruvinel, 2022 WL 757955, at *7 (quoting Elyashiv v. Elyashiv, 353 F. Supp. 2d 394, 406
(E.D.N.Y 2005)); see also Porretti v. Baez, No. 19-CV-1955, 2019 WL 5587151, at * (E.D.N.Y.
Oct. 30, 2019) (holding that where a child is “well-settled, . . . the stress and psychological impact
of returning” may be “multiplied”). Here, the children have been in the United States for over
seven months, and according to the Mother they have adjusted to life in New York. Child 1 is
going to school and has made friends, and both children enjoy spending time with extended family
members. In addition, the Mother and children no longer have a place to live in Canada, and the
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Mother has no money or job in Canada. (Hearing Tr. at 421:14-22.) Therefore, returning the
children to Canada would likely cause confusion, and would expose them to additional
psychological harm.
Lastly, Petitioner states that he has consented to eight ameliorative measures if this Court
orders the children return to Canada, including (i) JFCS is notified in advance of the return date of
the children to Canada; (ii) Petitioner continues to comply with all surety conditions; (iii) Petitioner
has no contact with Respondent upon her return to Canada; (iv) Petitioner continues to undergo
therapy with Peach; (v) Petitioner continues to take his Sertraline prescription; (vi) Petitioner
commences DBT with Peach; (viii) Petitioner continues to reside with his parents; and (viii)
Petitioner continues to comply with all JFCS conditions and requirements. (Petitioner’s Brief at
14-15.)
In considering ameliorative measures, the Court must (1) “prioritize the child’s physical
and psychological safety”; (2) “abide by the Convention’s requirement that courts addressing
return petitions do not usurp the role of the court that will adjudicate the underlying custody
dispute”; and (3) “accord with the Convention’s requirement that courts act expeditiously in
proceedings for the return of children.” Golan v. Saada, 142 S. Ct. 1880, 1893–94 (2022).
Here, the Court does not find that these ameliorative measures would prioritize the
children’s physical and psychological safety. First, none of the measures adequately address
Petitioner’s lack of serious mental health treatment. While he has agreed to continue taking
Sertraline and undergoing therapy with Peach, neither of these treatments would address his BPD.
In addition, Peach testified that he is a registered social worker and sex therapist, the Court has not
been presented any evidence that he is qualified to provide such an intense and long-lasting kind
of therapy like DBT. In fact, when asked if he was treating Petitioner for BPD, Peach stated, “I

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do not provide treatment exclusively for borderline personality disorder” and “I’m not someone
that has expertise in treating borderline personality disorder directly.” (Hearing Tr. at 97:12-9;
108:79.)
Second, none of the proposed measures address Petitioner’s history of aggressive behavior
and coercive control. While he agrees to continue therapy with Peach, Peach testified that his
treatment “focuses on developing and understanding an awareness of his sexual thoughts, interests,
and to develop strategies to help him to regulate his thoughts and urges.” (Hearing Tr. 79:5-9.)
This does not impact Petitioner’s alleged anger and manipulation issues. Lastly, none of the
measures adequately protect the children from Petitioner’s pedophilia. While Petitioner states he
would comply with the surety conditions and any instructions from JFCS, there is evidence in the
record that he has already failed to do so. Petitioner’s bail conditions state that he cannot possess
any device capable of accessing the internet or social media except in the presence of his sureties.
(Ex. 12.) However, his father testified that he has access to a tablet, Respondent testified that he
used electronics when she was not present, and Peach testified that Petitioner is still viewing
pornography. (Hearing Tr. at 111:13-15; 138:24–139:22; 381:25–382:1.) Petitioner himself also
testified that he currently has access to pornography on his device, and he uses a platform to speak
to adults and meet in person. (Id. at 160:22-25.) Therefore, the Court is not convinced that
Petitioner would now be motivated to abide by the conditions.
Accordingly, taking all of these factors together, the Court holds that Respondent has
established the grave risk of harm defense.

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CONCLUSION
For the foregoing reasons, Petitioner’s request for relief under the Hague Convention is
DENIED. The Petition is dismissed, and each party shall bear its own costs. The Court’s
prohibition on the removal of the children from this district during the pendency of this action is
hereby lifted. The Clerk of Court is respectfully directed to enter judgment in favor of Respondent,
and close this case.
Dated: July 29, 2022

SO ORDERED:

White Plains, New York

________________________________
NELSON S. ROMÁN
United States District Judge

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