Sabogal v. Velarde, 106 F. Supp. 3d 689

Background

Father (Correa) filed an ICARA petition under the Hague Convention seeking return of two children wrongfully removed from Peru by mother (Velarde) to the U.S.; bench trial held and petition conditionally granted.
Children habitually resided in Peru; Peruvian courts issued habeas corpus and a no innovar interim order returning the children to Velarde in Oct 2013, while custody remained pending in Peruvian family courts.
Correa exercised parental authority (patria potestas/ne exeat right under Peruvian law) and had physical custody June–Oct 2013; after children returned to Velarde he repeatedly sought access, paid school/insurance, sent notarized letters, filed police complaints, and later obtained a temporary custody order in Oct 2014.
Extensive evidence of Correa’s severe verbal and psychological abuse: threats to kill mother and children, coercing children to make sexually explicit accusations about their mother, substance abuse, and at least one physical incident; expert diagnosed children with severe PTSD, anxiety, depressive and separation disorders and opined return would pose grave psychological risk.
Legal dilemma: court found removal wrongful (father had custody rights and was exercising them) but also found, by clear and convincing evidence, a grave risk of psychological harm under Article 13(b); court therefore conditionally ordered return only if Correa could reinstate Peru’s pre-removal legal status (vacate his temporary custody and dismiss criminal complaints) and sign enforceable undertakings.

Issues

Issue	Plaintiff's Argument (Correa)	Defendant's Argument (Velarde)	Held
Whether removal was "wrongful" under Hague/ICARA	Correa: children were habitually resident in Peru; he held custody rights (parental authority, ne exeat) and was exercising them	Velarde: Peruvian interim orders conferred her de facto custody and extinguished Correa’s custody rights	Held: Wrongful removal proven — Correa had custody rights and was exercising them at removal
Whether Article 13(a) (not exercising custody) defeats petition	Correa: he actively sought to preserve contact and regain children	Velarde: Correa had effectively ceased exercising custody after courts returned children	Held: Correa was exercising custody rights; Article 13(a) failed for Velarde
Whether Article 13(b) (grave risk of harm) bars return	Correa: asserted rehabilitation, sobriety, and positive supervised visits in U.S.; proposed undertakings to protect children	Velarde: presented clear and convincing evidence of severe psychological abuse, threats to kill, coercion of children, and expert diagnoses showing return would cause grave psychological harm	Held: Article 13(b) satisfied — clear and convincing evidence of grave psychological risk; but return may be ordered with strict pre-conditions/undertakings
Whether Article 20 (human rights) bars return	Correa: implied return would be lawful; no U.S. fundamental rights violation	Velarde: return would offend fundamental protections given grave risk	Held: Article 20 not implicated — standard not met; return not barred under Article 20 if pre-conditions and undertakings restoring status quo are met

Key Cases Cited

Miller v. Miller, 240 F.3d 392 (4th Cir.) (Hague Convention preserves status quo and deters cross-border forum shopping)
Bader v. Kramer, 484 F.3d 666 (4th Cir.) (elements for wrongful removal and liberal view of "exercise" of custody)
Bader v. Kramer, 445 F.3d 346 (4th Cir.) (joint custody remains absent foreign court order)
White v. White, 718 F.3d 300 (4th Cir.) (assess custody status at time of removal)
Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir.) (grave risk standard; avoid deciding merits of custody)
Abbott v. Abbott, 560 U.S. 1 (2010) (ne exeat rights constitute custody rights under Hague)
Simcox v. Simcox, 511 F.3d 594 (6th Cir.) (narrow construction of Article 13(b) and guidance on undertakings)
Walsh v. Walsh, 221 F.3d 204 (1st Cir.) (domestic abuse in child’s presence can show grave risk)
Van De Sande v. Van De Sande, 431 F.3d 567 (7th Cir.) (grave risk where father abused mother in child’s presence and threatened children)
Blondin v. Dubois, 189 F.3d 240 (2d Cir.) (consider undertakings after grave-risk finding)
Baran v. Beaty, 526 F.3d 1340 (11th Cir.) (district court discretion in considering undertakings after grave-risk finding)
Walker v. Walker, 701 F.3d 1110 (7th Cir.) (examples of what constitutes exercise of custody)
Nunez-Escudero v. Tice-Menley, 58 F.3d 374 (8th Cir.) (lack of grave risk when no evidence child would suffer upon return)