4196. IN RE OLIVER A., pet-res, v. DIANA PINA B., res-res — Andrew J. Baer, New York, for ap — Law Offices of Randall S. Carmel, Syosset (Randall S. Carmel of counsel), for res — LARRY S. BACHNER, JAMAICA, ATTORNEY FOR THE CHILDREN.—Order, Family Court, Bronx County (Llinet M. Rosado, J.), entered on or about June 15, 2016, as amended July 8, 2016, which, after a hearing, granted petitioner father’s petition to direct respondent mother to return the parties’ two minor children to Norway, unanimously reversed, on the law and the facts, without costs, the petition denied, and the proceeding dismissed.
Petitioner, a citizen of Norway, and respondent, a United States citizen, were married in New York in 2009, and their two children were born in Norway in 2010 and 2012. The family lived in Norway and also spent months at a time living in the maternal grandmother’s apartment in New York. In 2013, after the mother was directed to leave Norway, the parties sold much of their personal property and their car, and went to the Dominican Republic, where they stayed for several months, from September 2013 until January 2014. They then went to New York and stayed with the maternal grandmother. At some time in or about March 2014, the father returned to Norway to look for an apartment and job, with the expectation that the mother would follow with the children. In court, the parties both confirmed their understanding that the mother would return to Norway with the children when he was settled. However, the mother testified that, following a long history of domestic violence, including a choking incident in February 2014 where the police were called and issued an NYPD Domestic Incident Report, she determined not to return to Norway and told the father she would not return. In April 2015, the father filed a petition for the return of the children pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (1343 UNTS 89, TIAS No. 11670 [1980]) and its domestic implementing legislation, the International Child Abduction Remedies Act (22 USC §§9001-9011). A parent bringing such a petition must demonstrate by a “preponderance of the evidence” that the child has been “wrongfully removed or retained” from her country of “habitual residence” (22 USC §9003[e][1][A]; Mota v. Castillo, 692 F3d 108, 112 [2d Cir 2012]). Nevertheless, a petition will be denied if the parent opposing return of a child establishes “by clear and convincing evidence” the exception set forth in article 13b of the Convention (22 USC §9003[e][2][A]) — namely, that “there is a grave risk that [the child's] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation” (Hague Convention art 13[b]).
