Mauvais v. Herisse
772 F.3d 6
1st Cir.2014Background
- Father (Canadian resident) filed Hague Convention/ICARA petition to return two minor children (M.M., born 2005; R.M., born 2009) from Massachusetts to Canada after mother took them from Canada in Sept. 2013.
- Parents (both Haitian citizens) lived intermittently in Haiti, France, U.S., and Canada; family lived in Québec for ~3.5 years before removal; children attended school/daycare, had Québécois accents, and visited relatives.
- Mother moved separately within Montréal for periods and later allowed father to resume cohabitation; district court found parents had a shared intent for the children to reside in Canada for at least two years prior to removal.
- Mother alleged long‑term sexual and physical abuse by father (including rape) and sexualized conduct by father’s older son toward M.M.; presented an expert pediatrician who opined return would pose grave risk.
- District court credited some facts but found mother’s testimony "general and vague," discounted the expert (limited review/interviews), found no clear evidence of grave risk, and ordered return to Canada; First Circuit affirms.
Issues
| Issue | Plaintiff's Argument (Mother) | Defendant's Argument (Father) | Held |
|---|---|---|---|
| Whether Canada was children's country of habitual residence | Mother: She was coerced to live in Canada; parents never shared settled intent to make Canada habitual residence | Father: Family lived in Canada ~3.5 years; mother chose to remain and established independent household there | Court: Canada was the children's habitual residence (district court findings not clearly erroneous) |
| Whether return would expose children to "grave risk" of physical or psychological harm under Article 13(b) | Mother: Past sexual/physical abuse by father and sexualized behavior by his older son risk grave harm; expert supports psychological risk; R.M.'s medical care better in U.S. | Father: Denies allegations; no prior protective orders or police reports; children acclimated to Canada; medical issues are minor and treatable in Canada | Court: Mother failed to prove grave risk by clear and convincing evidence; return ordered |
| Admissibility/weight of expert testimony | Mother: Dr. Newberger’s opinion shows psychological risk | Father: Expert had limited contact, did not review Canadian records, and relied on mother’s account | Court: District court reasonably discounted the expert; no clear error |
| Applicability of Walsh precedent (domestic‑abuse grave‑risk exception) | Mother: Walsh supports finding grave risk based on exposure to spousal abuse | Father: Facts here lack corroboration and the father has no history of violating court orders | Court: Walsh distinguishable; here facts are not as clear or dire, so exception does not apply |
Key Cases Cited
- Neergaard-Colón v. Neergaard, 752 F.3d 526 (1st Cir. 2014) (habitual‑residence and return remedy principles under the Hague Convention)
- Sánchez-Londoño v. González, 752 F.3d 533 (1st Cir. 2014) (elements for proving wrongful removal under the Convention)
- Darín v. Olivero-Huffman, 746 F.3d 1 (1st Cir. 2014) (shared parental intent and acquisition/abandonment of habitual residence)
- Yaman v. Yaman, 730 F.3d 1 (1st Cir. 2013) (burden and standard for Article 13(b) grave‑risk exception)
- Abbott v. Abbott, 560 U.S. 1 (2010) (purpose and return remedy of the Hague Convention)
- Lozano v. Montoya Alvarez, 134 S. Ct. 1224 (2014) (limits and exceptions to the Convention’s return remedy)
- Nicolson v. Pappalardo, 605 F.3d 100 (1st Cir. 2010) (parents’ intent as starting point for habitual‑residence analysis)
- Walsh v. Walsh, 221 F.3d 204 (1st Cir. 2000) (Article 13(b) exception applied where ample evidence of severe, corroborated domestic violence)
- Charalambous v. Charalambous, 627 F.3d 462 (1st Cir. 2010) (return order is not a final custody determination; home country courts decide custody)