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It has been widely acknowledged that there is a growing trend of primary caretakers abducting children in order to avoid domestic violence. Increasingly, domestic violence has been recognized as an important factor in many Hague Convention cases. See Lady Brenda Hale (President of the Supreme Court of the United Kingdom), Taking Flight—Domestic Violence and Child Abduction, 70 Current Legal Problems 1, 10 (2017). As such, the role of forensic mental health experts in assessing the risks of harm associated with returning children to an environment of domestic abuse has become integral in Hague Convention cases.

The Convention on the Civil Aspects of International Child Abduction done at the Hague (Hague Convention) was implemented in the United States in 1988 pursuant to federal statute, International Child Abduction Remedies Act (ICARA), now codified as 22 U.S.C. §9001 et seq. (formerly codified as 42 U.S.C. §11601). Its purpose is (1) to discourage parents from abducting children across international borders as a means of forum shopping and (2) to provide an expeditious procedure to secure the return of children to their country of habitual residence for the adjudication of custody issues. (Far too often, the Hague Convention's purpose is oversimplified to state that it determines which country will have jurisdiction of the underlying custody claims. However, the Hague Convention does not override custody jurisdiction pursuant to the Uniform Child Custody and Jurisdiction Enforcement Act (UCCJEA) which is in effect in 49 states, including in New York enacted as Domestic Relations Law §§75-77.)

To establish a prima facie case under the Hague Convention, the left-behind parent (petitioner) must establish by a preponderance of the evidence that (1) the child's habitual residence was in the foreign country; (2) the left-behind parent's rights of custody were violated by the abduction; and (3) the left-behind parent was exercising those custody rights.

Though these issues can be complex, especially concerning habitual residence, they can be simplified as follows: (1) exercising custody rights includes parental contact with the child; (2) rights of custody can be demonstrated by foreign law, by court order, or by agreement between the parties; and (3) habitual residence is generally established through the intent of the parties to raise a child in the foreign country for the foreseeable future or by demonstrating the child's life was sufficiently integrated in the foreign country.

Assuming the petitioner is able to make out a prima facie case, the burden then shifts to the respondent to establish one of the several affirmative defenses (or exceptions) available in the Hague Convention. The affirmative defenses include the (1) Article 12 exception, which states that, if the petition was not filed within one year after the abduction, the child is so well-settled in the United States that a return would be harmful to the child; (2) Article 13 exception, which states that the child does not wish to return to the country of habitual residence and is sufficiently mature to express its opinion; (3) Article 13(a) exception, which states that the petitioner agreed for the child to reside in the United States; (4) Article 13(b) exception, which states that the return of the child would cause psychological or physical harm; and (5) Article 20 exception, which states that the return of the child would violate fundamental human rights.

Any of these affirmative defenses could be the subject of a lengthy discussion. However, the focus of this article and a forthcoming article by the authors is on the Article 13(b) "Grave Risk" defense and the role that mental health professionals play in these proceedings. (The grave risk defense must be established by clear and convincing evidence whereas most of the other affirmative defenses can be established by the lower preponderance of the evidence standard.)

Historically, the grave risk defense was generally limited to two scenarios: returning a child to "a zone of war, famine, or disease," or "in cases of serious abuse or neglect, or extraordinary emotional dependence." Blondin v. Dubois, 238 F.3d 153, 162 (2d Cir. 2001) (citation omitted).  Serious abuse or neglect included severe physical or sexual abuse and often focused on evidence that the child was a direct victim of the abuse. However, in recent years, there has been a push to expand the interpretation of the grave risk defense to include psychological harm to children, including exposure to domestic spousal abuse.

It is well settled in the Second Circuit that although the "[t]he 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," "evidence of prior spousal abuse, [even] though not directed at the child, can support the grave risk of harm defense, as could a showing of the child's exposure to such abuse." Souratgar v. Lee, 720 F.3d 96, 103-04 (2d Cir. 2013).

The Permanent Bureau of the Hague Conference has concluded that "there are correlations between a child's exposure to domestic violence, whether direct or indirect, and contemporaneous childhood and later problems in adult life." This includes "higher rates of aggressive and antisocial and fearful and inhibited [behaviors] among children, lower social competence, and higher than average rates of anxiety, depression, trauma symptoms and temperament problems." Hague Conference on Private International Law, Domestic and Family Violence and the Article 13 "Grave Risk" Exception in the Operation of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: A Reflection Paper ¶ 22 (Preliminary Document No 9 of May 2011) (Permanent Bureau 2011).

In addition to the establishing a grave risk of harm, the Second Circuit, unlike some other Circuit Courts of Appeal, also mandates that courts "examine the full range of options that might make possible the safe return of a child to the home country." Blondin, 238 F.3d at 163 n.11. This added layer of scrutiny means that, in order to deny the return of children who may be subjected to a grave risk of harm, courts must also first determine that either (1) the courts of the foreign country are incapable or unwilling to protect the child, or (2) there exists inadequate protective measures available to protect the child if returned to its habitual residence.

These so-called protective measures or "undertakings" are "generally disfavored, particularly where there is reason to question whether the petitioning parent will comply with the undertakings and there are no other 'sufficient guarantees of performance.'" Saada v. Golan, 930 F.3d 533, 540 (2d Cir. 2019) (internal citations ommitted). Undertakings, however, have successfully been used to return children to their habitual residence in certain situations. Such undertakings include agreements to stay away from the other parent, providing living accommodations and expenses, and the withdrawal of criminal actions.

Unlike a typical affirmative defense, which, when established, may result in the denial of an action, the Hague Convention allows courts to order the return of children even if one of the five exceptions has been established. Therefore, the interpretation and implementation of the grave risk defense is subject to the broad discretion of the courts and its need to balance the competing purposes of the Hague Convention which are (1) to promote the return of children to their country of habitual residence and to deter forum shopping and abduction (which the U.S. Supreme Court has described as a form of child abuse); and (2) to protect children from the obvious harmful effects of direct child abuse and exposure to spousal abuse. Although the Hague Convention seeks "to ensure the prompt return of children wrongfully removed from their country of habitual residence," the Hague Convention also seeks to protect children who "face a real and grave risk of harm upon return." Ermini v. Vittori, 758 F.3d 153, 156, 164 (2d. Cir. 2014).

These delicate and serious issues often are decided after analyzing the severity of the abuse, the court's confidence in the abuser's ability to change behavior, the foreign court's ability to protect against the abuse, and/or the presence of substantial enforceable undertakings sufficient to provide a safe environment for the children. Counsel for the parties must be prepared to strategize based on the harsh realities of their circumstances. For example, if you represent an alleged abuser, it may be wiser to admit to the abuse and be prepared to offer steps to protect the children upon their return rather than to deny the abuse and state that no such protections are necessary.

The advantage of utilizing a forensic mental health expert is critical for attorneys faced with these issues at trial.  First, from a victim's perspective, they will want to establish the presence of domestic violence and its impact on children's development and overall well-being. From an abuser's perspective, psychologists may be used to establish protective measures that could reduce any risk of harm to children. The value of such forensic expert testimony will be discussed in greater detail in the next article.

Richard Min is a partner at Burger Green & Min, a member of the International Academy of Family Lawyers, and a leading expert in the area of International Child Abduction, having litigated dozens of abduction cases across the United States. Alberto (Avi) Yohananoff is a managing partner at NYC Forensics. He specializes in forensic assessments pertaining both to civil and criminal matters, with a particular interest in the resolution of child custody disputes.