In re Ariel Adan
- Reporters:
- Before:
- Alito, Ambro, Restani
In Re: Ariel Adan
Precedential or Non-Precedential: Precedential
Docket No. 05-3045
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Recommended Citation
“In Re: Ariel Adan ” (2006). 2006 Decisions. Paper 1504. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1504
Argued September 29, 2005
(Opinion filed: February 14, 2006)
Elliot H. Gourvitz, Esquire (Argued)
150 Morris Avenue
P.O. Box 476
Springfield, NJ 07081
Counsel for Appellant
Walter A. Lesnevich, Esquire (Argued)
Francesca Marzano-Lesnevich, Esquire
Michael R. Mildner, Esquire
Lesnevich & Marzano-Lesnevich
21 Main Street,
Court Plaza South
Hackensack, NJ 08601
Counsel for Appellee
AMBRO, Circuit Judge
Elena Esther Avans1 appeals from an order of the United States District Court for the District of New Jersey granting appellee Ariel Adan‘s application for return of his daughter Arianna to Argentina pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention” or “Convention“), Oct. 25, 1980, T.I.A.S. No. 11,670, 19 I.L.M. 1501 (1980). Avans asks us to reverse the District Court‘s order and dismiss the application. For the reasons stated below, we vacate the District Court‘s order and remand for further proceedings consistent with this opinion.
I.
The factual background of this case is troubling. We say this not only because of the ominous accusations of abuse that have been directed at Adan, but also because the record on appeal is woefully incomplete. The parties’ submissions to our
A. Background
Avans is a naturalized U.S. citizen and former girlfriend of Adan, a citizen of Argentina. The parties met in Argentina in 1998 at a support group for recovering drug and alcohol abusers and began cohabiting shortly thereafter. According to Avans’ testimony before the District Court, Adan became violent shortly after Avans moved in with him. She alleges that Adan locked her in his bedroom, beat her, and threatened her with further harm if she ever left him. In 1999 Avans became pregnant by Adan. In March 2000, while she was still pregnant, Avans came to the United States and began living in New Jersey. Adan followed her in April 2000 and (according to Avans) the abuse resumed. She contends that Adan tried to suffocate her with a pillow, and she filed a report with the Roselle, New Jersey police department alleging that he “picked up two laundry bags and threw them over her head.” Avans gave birth to Arianna on June 15, 2000.
The parties lived in New Jersey for the next three months. Avans alleges that during this time the abuse continued,
Avans contends the abuse got worse while she was in Argentina, including an incident in March 2002 when Adan allegedly threatened Avans and Arianna with a gun, another incident from the same month when Avans claims Adan hit her at a birthday party, and a later incident when Adan purportedly chained the gate to Avans’ home shut so she could not get out. Throughout these incidents, Avans contends that she repeatedly sought the assistance of the Argentine police and court system but they did nothing, which she attributes to bribes Adan allegedly paid to police and judges. Avans eventually began living apart from Adan, and the parties reached an informal custody agreement regarding Arianna. Aside from short visits to the United States in May 2001 and May 2003, Avans and Arianna remained in Argentina.
After these incidents, Avans went to family court in Argentina, accompanied by her landlord and neighbors, and filed a complaint against Adan that resulted in a 90-day temporary restraining order against him. According to Avans, Adan violated the restraining order and the police would not enforce it. Shortly before the February 2004 return date on the temporary restraining order, Avans brought her daughter to the United States.
Adan agrees with Avans’ chronology of their relationship but contests her allegations of abuse. He contends that Avans was under the influence of drugs and could not take care of Arianna. He states that he paid all expenses related to Arianna‘s
B. Legal Proceedings in the United States
Adan eventually traced a Western Union wire transfer to Avans and discovered she and Arianna had returned to New Jersey. Although the record is unclear on the precise date, Adan came to New Jersey sometime in the spring of 2004 looking for his daughter. In April 2004 Avans obtained a temporary restraining order against Adan from the Superior Court in Union County, New Jersey. Adan filed the application that is the subject of this appeal in the United States District Court for the District of New Jersey in October 2004.
The District Court held a hearing on June 6 and 7, 2005, at which it heard testimony from Avans and Adan consistent with the factual background recounted above. At this hearing, the Court also learned that Adan had filed a criminal complaint against Avans in Argentina for kidnaping Arianna, and that the Argentine authorities had issued a warrant for her arrest and
On June 7, 2005 the District Court issued a one-sentence order granting Adan‘s petition for return of the child and ordering Avans to return Arianna to Argentina immediately. Although the Court made no formal written findings of fact, the District Judge did make some oral comments regarding the credibility of the witnesses and their testimony in the course of announcing his decision. He concluded that “the respondent [Avans] is a little more credible” than Adan and that “the petitioner [Adan] lied or was not being truthful when he denied that he had ever verbally threatened [Avans] or abused her, if we use that term in the context of verbal abuse.” The Court described Adan as
effusive and just running all over the field in giving answers to questions which did not deal with [the alleged abuse]. But when he was asked those questions [related to the alleged abuse], he sort of more or less clammed up and gave us very bald, sterile [answers,]
which was great[ly] at odds with the . . . man whom I saw constantly running off at the mouth, to use the vernacular, on the stand in a very hyper manner, which is quite consistent with the manner in which he is portrayed by the respondent [and is] not inconsistent with what she claims he did.
Nonetheless, the District Court concluded that Avans had not demonstrated by clear and convincing evidence that Arianna would be subject to physical or psychological harm if returned to Argentina, as required by the Convention. With respect to the allegations of sexual abuse, the District Judge concluded that Arianna‘s statement that her father “was putting something hot in her butt” that hurt was “no proof whatsoever of sexual abuse [because] [t]hat can be anything.”2 As for Avans’ discovery of a pubic hair in Arianna‘s vagina, the Judge found “that without anything else means nothing, particularly since there has been no evidence . . . of having [the] child readily examined by a competent medical person to determine whether there had been true sexual abuse or whether, as the petitioner says, the child had
Based on this analysis, the District Court concluded that Avans’ allegations did not constitute “a showing of a grave risk” to Arianna if she was returned to Argentina. The Court further concluded that, even if there was a grave risk of harm to Arianna, he would still be inclined to exercise his discretion to order Arianna returned, as “this matter is best determined by Argentinian courts because it is all interwoven with a struggle, as I said, for custody and determination of domestic abuse, which is not the purpose of the Convention.”
On June 14, 2005 Avans filed a notice of appeal. The next day, the District Court ordered her to comply with its order on the merits by purchasing an airline ticket to Argentina for Arianna no later than June 17, 2005. On June 16, 2005 we granted an emergency stay of this order pending review and disposal of Avans’ appeal. In light of the stay, Arianna remains in the United States.
On July 22, 2005 Avans moved the District Court to supplement the record on appeal with recently uncovered evidence pursuant to
As for the subsequent developments in the New Jersey criminal proceedings against Adan, although such evidence may ordinarily be judicially noticed, see Landy v. Fed. Deposit Ins. Corp., 486 F.2d 139, 150-51 (3d Cir. 1973), we decline to do so here. Avans has not challenged the District Court‘s refusal to consider this evidence, nor has she made a proper motion to our Court for such consideration. Indeed, besides the motion to the District Court (the denial of which she does not appeal), the only attempt Avans made to have this evidence considered on appeal is her response to our September 8, 2005 order directing the parties to submit separate letter memoranda regarding the status of any relevant legal proceedings in Argentina. Her reply characterized our order as “invit[ing] counsel to go beyond the record to also submit to the Court the present status of the domestic violence proceedings against the petitioner in the United States.” Our order did not invite counsel to do so. In this context, we have no choice but to conclude that Avans has waived her opportunity to have us consider this evidence on appeal.
II.
The District Court had jurisdiction over this case under
III.
A. Standard of Review
The Convention is codified in United States law by the International Child Abduction Remedies Act,
[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.
The rights of custody mentioned in sub-paragraph [a] above . . . may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.
Hague Convention, art. 3, 19 I.L.M. at 1501. A wrongful removal may nonetheless be justified if one of the following exceptions applies:
[a] the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
[b] there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
Under these provisions, an applicant seeking return of a child must demonstrate by a preponderance of the evidence that he or she had and was exercising custody rights over the child under the country of origin‘s laws and that the country of origin was the child‘s habitual residence.
Each of the applicant‘s initial burdens — custody and habitual residence — requires the “application of a legal standard . . . to historical and narrative facts,” and thus an appeals court applies a “mixed standard of review, accepting the district court‘s historical or narrative facts unless they are clearly erroneous, but exercising plenary review of the court‘s choice of and interpretation of legal precepts and its application of those precepts to the facts.” Id. at 222 n.9, 225; see Baxter v. Baxter, 423 F.3d 363, 367 (3d Cir. 2005) (same). We have not explicitly articulated a standard of review for the opposing party‘s burden of proving by clear and convincing evidence that an exception applies, but we agree with other circuit courts that,
B. Wrongful Removal
As a starting point, we consider the threshold question of whether the removal of Arianna from Argentina was “wrongful” under Article 3 of the Convention. See Hague Int‘l Child Abduction Convention: Text and Legal Analysis, 51 Fed. Reg. 10,494, 10,506 (Mar. 26, 1986) (hereinafter “Hague Convention Analysis“) (“The obligation to return an abducted child to the person entitled to custody arises only if the removal or the retention is wrongful within the meaning of the Convention.“). We must therefore determine whether the District Court erred in finding that Adan had custody rights over Arianna at the time she was removed, that Adan was exercising those rights, and that Arianna was a habitual resident of Argentina.4 As noted
1. Rights of Custody and Access
The Convention defines custody rights as “rights relating to the care of the person of the child and, in particular, the right to determine the child‘s place of residence.” Hague Convention, art. 5(a), 19 I.L.M. at 1501. In determining custody, “the Convention calls into play a State‘s choice of law rules as well as its internal custody rights laws.” Feder, 63 F.3d at 225. This requires a careful examination of the country of origin‘s custody
The duty of the host forum — in this case, the District Court — to make a threshold determination of custody rights under the country of origin‘s laws is not novel; indeed, it comports with the federal courts’ frequent responsibility to examine the law and choice of law rules of another forum to determine the rights and duties of litigants. Such a determination does not, of course, bind the other forum to reach the same result in future litigation, nor does it run afoul of comity concerns. Article 3‘s requirement that the host country determine custody rights under the country of origin‘s law to ascertain whether removal was “wrongful,” and therefore whether the Convention applies, is a straightforward question of law of the sort federal courts routinely encounter, and thus presents no unusual burden on the competence of our courts.
That said, the Convention does not allow the state to
The Convention also contrasts “rights of custody,” which may be vindicated by an order that the child be returned to the country of habitual residence, with “rights of access,” which may not. Hague Convention, art. 5, 19 I.L.M. at 1501; see Whallon v. Lynn, 230 F.3d 450, 455 n.3 (1st Cir. 2000).
2. Habitual Residence
The determination of habitual residence “is not formulaic; rather, it is a fact-intensive determination that necessarily varies with the circumstances of each case.” Whiting v. Krassner, 391 F.3d 540, 546 (3d Cir. 2004). When a child is too young to have an intent regarding her habitual residence, the touchstone inquiry is “shared parental intent.” Id. at 548. As we explained in Feder,
“[a]ll that the law requires is that there is a settled purpose. That is not to say that the [person] intends to stay where he is indefinitely.
Indeed his purpose while settled may be for a limited period. Education, business or profession, employment, health, family or merely love of the place spring to mind as common reasons for a choice of regular abode, and there may well be many others. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.”
63 F.3d at 223 (quoting In re Bates, No. CA 122-89, slip op. at 10 (High Ct., Fam. Div.) (Eng. 1989)).
3. Analysis
Turning first to the question of habitual residence, Adan no doubt proved by a preponderance of the evidence that Argentina is Arianna‘s country of habitual residence. Though she was born in the United States, Arianna moved to Argentina with her mother and father when she was three months old. With the exception of two brief visits to relatives in the United States in May 2001 and May 2003, Arianna lived in Argentina with her parents until her mother removed her to the United States in February 2004. Her parents are both from Argentina and her father is an Argentine citizen. Her parents were
The question of custody is more difficult. The record does not reveal any court-approved agreement or adjudication of custody in Argentina; rather, it appears the parties had an informal agreement between themselves, but the record is unclear on the terms of this agreement — aside from noting that it gave Avans “custody” and established a schedule for Adan to visit Arianna — and the parties have not provided us with the agreement in English. Moreover, there is no evidence whether the agreement was properly memorialized under Argentine law, or whether the parties’ chaotic relationship caused the agreement to be reconsidered or repudiated. Indeed, Adan conceded in his testimony before the District Court that he did not consider the agreement binding because it “was not ratified in front of a judge,” and that the agreement “didn‘t last long really.” The parties have not cited, and the District Court did not mention, any provisions of Argentine law related to the creation, terms, or enforceability of such agreements, and we therefore have insufficient information to conclude whether the agreement had “legal effect under the law of [Argentina],” as required by Article 3 of the Convention.
As for other provisions of Argentine law, although the parties made passing — and, indeed, contradictory — references to a section of the Argentine code during the District Court hearing, they have not provided us with any citations to Argentine legal authorities and the District Court did not examine, rely on, or even mention Argentine law in determining whether Adan had lawful custody rights over Arianna at the time of her removal. Moreover, we have been unable to locate relevant provisions of the Argentine code in English. The little information we have obtained on Argentine family law is not helpful because it is in some respects contradictory and, more importantly, the factual record does not reveal the terms or status of the parties’ custody arrangement.5
Moreover, we note that the mere fact Adan filed a criminal complaint against Avans in Argentina for kidnaping the child is insufficient, without more, to establish that Adan had
The District Court, for its part, merely found that Adan “furnished and maintained contact with the child during her stay in Argentina” because he paid for some of the child‘s expenses and saw the child on a fairly regular basis. The Court therefore concluded it was appropriate to move directly to the question of “whether or not [Avans] has proved clearly and convincingly that the exceptions to . . . being required to return the child to Argentina[] obtain.” There is not, however, any indication from the record or from any of the available legal sources on Argentine family law that “furnish[ing] and maintain[ing] contact” with a child is sufficient to create valid custody rights in Argentina. We therefore conclude that the District Court erred in finding that Adan satisfied his burden of proof as to his custody rights under Argentine law.
In light of the District Court‘s failure to consider this issue, we are compelled to vacate its June 7, 2005 order and remand the case for further factfinding to determine: (1) what is the custody law of Argentina; (2) what are the terms of the parties’ agreement regarding custody of Arianna; (3) whether that agreement is enforceable under Argentine law; and (4) under the agreement (or, if the agreement is not enforceable,
C. The Article 13(b) Exception
If Adan does not prove by a preponderance of the evidence that he had valid custody rights over Arianna in Argentina, that would be the end of the matter; the Convention would not apply and Adan would have no basis on which to seek Arianna‘s return. If, however, Adan satisfies his burden and establishes that he had custody rights in Argentina, the burden would shift to Avans to prove by clear and convincing
1. Grave Risk of Harm
The Convention‘s Article 13(b) exception is “narrowly drawn.” See Feder, 63 F.3d at 226. “Were a court to give an overly broad construction to its authority to grant exceptions under the Convention, it would frustrate a paramount purpose of that international agreement — namely, to ‘preserve the status quo and to deter parents from crossing international boundaries in search of a more sympathetic court.‘” Blondin v. Dubois, 189 F.3d 240, 246 (2d Cir. 1999) (“Blondin I“) (quoting Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir. 1993) (“Friedrich I“)); see Baxter, 423 F.3d at 367 (“[T]he Convention‘s procedures are designed to restore the status quo prior to any wrongful removal or retention, and to deter parents from engaging in international forum shopping in custody cases.“). As the U.S. State Department has explained, an
“intolerable situation” was not intended to encompass return to a home where money is in short supply, or where educational or
other opportunities are more limited than in the requested State. An example of an “intolerable situation” is one in which a custodial parent sexually abuses the child. If the other parent removes or retains the child to safeguard it against further victimization, and the abusive parent then petitions for the child‘s return under the Convention, the court may deny the petition. Such action would protect the child from being returned to an “intolerable situation” and subjected to a grave risk of psychological harm.
There is little question that, under this standard, the abuse, sexual and otherwise, that Avans contends Adan has
We also note that, in considering the Article 13(b) exception, a court must “take into account any ameliorative measures (by the parents and by the authorities of the state having jurisdiction over the question of custody) that can reduce whatever risk might otherwise be associated with a child‘s repatriation.” Blondin I, 189 F.3d at 248. Therefore, even if the court finds that authorities in the country of habitual residence are capable of safeguarding the child, it must still carefully tailor its order to counter whatever risk of harm exists — including returning the child in the custody of the parent who removed the child — “thus reducing or eliminating the risk of harm that might otherwise be associated with granting [the] petition.” Id. at 249.
2. Analysis
Although the District Court found Avans more credible than Adan and stated that Adan‘s demeanor was “quite
As noted, the District Court Judge made no written findings of fact, and therefore we must extract findings from his oral decision at the hearing. The transcript reveals that the Court did not reject Avans’ testimony that she had been repeatedly abused, raped, and threatened with a gun,6 and the
Court did not mention Avans’ testimony that Arianna would return from even brief visits with her father with wet hair and would tell her mother that Adan bathed with her, Avans’ further testimony and accompanying police report that Adan screamed in the child‘s ear to force Avans to agree to return to Argentina, or the photograph Adan took of Arianna with her underwear covering her face. The Court did reject portions of Avans’ testimony that Adan had abused Arianna, not because it found that the incidents she described did not occur but because: (1) Arianna‘s statement that her father was “putting something hot in her butt” “c[ould] be anything“; (2) Avans’ discovery of a pubic hair in Arianna‘s vagina “means nothing” because in the absence of medical evidence it could have resulted from “the child . . . lying on a dirty bed“; and (3) Arianna‘s statement that her father “love[d] [her] with his tongue” was “not significant” because parents sometimes lick their children and “sometimes the tongue may have gone too far.”
In our view, the District Court‘s analysis of Avans’ testimony is both incomplete (in that it does not take into account large portions of her testimony that suggest a grave risk
We note a similar problem with the District Court‘s consideration of Avans’ contention that the Argentine courts and authorities were unable or unwilling to protect her. The Court concluded that Avans did not produce sufficient evidence that “Argentinian courts are without the skill, the expertise, or the concern to deal with the matter involving these parties.” Avans testified about her numerous experiences with Argentine law enforcement when police officers refused to offer her any assistance, and the fact that Adan violated a temporary restraining order issued by an Argentine court after the police refused to enforce it. Adan did not contest these allegations in his testimony, and the District Court did not discount Avans’ testimony; rather, the Court found Avans’ allegations related to Adan‘s alleged bribery of judges and police officers to be unsubstantiated. It therefore failed to consider and reject the majority of Avans’ proof related to the inaction of Argentine courts and police. Although she bore the burden of setting forth clear and convincing evidence to substantiate her claims under Article 13, the District Court bore the responsibility to evaluate adequately her evidence and explain in a reasoned way why that evidence was unavailing. Its analysis in this case falls short of that standard.
Given the state of the factual record, we instruct the District Court on remand to: (1) make detailed, written findings of fact on all allegations of abuse and harm visited upon Avans and Arianna by Adan, and on the protective efficacy of the Argentine courts and police, evaluating the witnesses’ complete
IV.
We are well aware that the Convention requires the “prompt return of children wrongfully removed” and that we must act “expeditiously” in doing so. Hague Convention, arts. 1(a), 11, 19 I.L.M. at 1501-02. The desire for a swift resolution to this matter cannot, however, outweigh our duty to see that the law is properly applied. For the reasons noted, we vacate the District Court‘s June 7, 2005 order and remand the case to that Court with instructions to conduct further factfinding to determine: (1) what is the custody law of Argentina; (2) what are the terms of the parties’ agreement regarding custody of Arianna; (3) whether that agreement is enforceable under Argentine law; and (4) under the agreement (or, if the agreement is not enforceable, Argentine family law), whether Adan had custody rights or mere rights of access, and whether he was validly exercising those rights at the time Arianna was removed.