Van De Sande, Davy v. Van De Sande, Jennif ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2831
DAVY VAN DE SANDE,
Petitioner-Appellee,
v.
JENNIFER VAN DE SANDE,
Respondent-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 C 1182—Marvin E. Aspen, Judge.
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ARGUED SEPTEMBER 9, 2005—DECIDED DECEMBER 7, 2005
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Before BAUER, POSNER, and WOOD, Circuit Judges.
POSNER, Circuit Judge. The International Child Abduc-
tion Remedies Act, 42 U.S.C. §§ 11601 et seq., implementing
the Hague Convention on the Civil Aspects of Interna-
tional Child Abduction, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89
(Oct. 25, 1980), entitles a person whose child has been
abducted to the United States (usually by a parent) to
petition in federal court for the return of the child. 42 U.S.C.
§ 11603(b). “The Convention was created to discourage
abductions by parents who either lost, or would lose, a
custody contest. . . . The Convention drafters adopted a
‘remedy of return’ . . . to discourage abductions, reconnect
2 No. 05-2831
children with their primary caretakers, and locate each
custody contest in the forum where most of the relevant
evidence existed. [But] while the remedy of return works
well if the abductor is a non-custodial parent, it
is inappropriate when the abductor is a primary care-
taker who is seeking to protect herself and the children from
the other parent’s violence.” Merle H. Weiner, “Navigating
the Road Between Uniformity and Progress: The Need for
Purposive Analysis of the Hague Convention on the Civil
Aspects of International Child Abduction,” 33 Colum.
Human Rts. L. Rev. 275, 278-79 (2002). In such a case “the
remedy [of return] puts the victim’s most precious posses-
sion, her child, in close proximity to her batterer either
without her protection (assuming she does not return with
the child), or with her protection, thereby exposing her to
further violence.” Merle H. Weiner, “International Child
Abduction and the Escape from Domestic Violence,” 69
Fordham L. Rev. 593, 634 (2000); cf. 18 U.S.C. § 1204(c)(2). “A
typical pattern involves a female U.S. national who has
married a male foreign national and moved with her spouse
to a foreign country. In most Hague cases invoking grave
risk on the basis of domestic violence, the abuse begins
before the transnational move. Ultimately, the victim flees
with her children back to the United States in order to
escape the abuse. The batterer, left behind in the country of
habitual residence, then files a petition under the Hague
Convention requesting return of the children to adjudicate
the custody issues.” Roxanne Hoegger, “What If She
Leaves? Domestic Violence Cases Under the Hague Conven-
tion and the Insufficiency of the Undertakings Remedy,” 18
Berkeley Women’s L.J. 181, 187 (2003).
The present case approximates the “typical pattern” in
which the remedy of return is problematic. The two children
of Davy and Jennifer Van De Sande, a married but es-
No. 05-2831 3
tranged couple, are habitual residents of Belgium,
Davy’s native country. Davy has been awarded custody of
his two children by a Belgian court, but Jennifer, who is
living with the children in the United States, has refused
to give them up. She became an “abducter” when Davy
got the custody decree, though it was ex parte. Davy
brought this suit to get the children back.
An abducter has a narrow defense: Article 13(b) of the
Convention excuses return if “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.” The abducter must prove this by clear
and convincing evidence. 42 U.S.C. § 11603(e)(2)(A).
Although Jennifer submitted affidavits setting forth the
circumstances that she contends create such a risk, the
district court granted summary judgment for Davy, primar-
ily on the ground that there is no indication that the Belgian
legal system cannot or will not protect the children. The
only condition that the judge inserted in the order directing
the return of the children to Davy is that he pay for their
airfare to Belgium.
Jennifer presented six affidavits—two by her and one each
by her father, her mother, her brother, and a friend. The
affidavits paint a consistent and disturbing picture. Accord-
ing to them Davy began beating Jennifer shortly after their
marriage in 1999. The beatings were frequent and serious.
For example, when she was seven months pregnant with
their first child, Davy slammed Jennifer’s head against a
wall, choked her, and pushed her toward the top of a flight
of stairs, threatening to topple her down them. The beatings,
which typically consisted of choking Jennifer, throwing her
against a wall, and kicking her in the shins, and occurred
several times a week throughout the marriage whenever the
4 No. 05-2831
two of them were together, continued when they moved
from the United States to Belgium. Davy’s mother joined
in beating her daughter-in-law. (The Van De Sandes’
grievance against Jennifer is that she is an indifferent house-
keeper.) She complained several times to the Belgian police,
but they said they could do nothing unless she went to a
doctor to verify her injuries; and she did not do that.
Davy’s beatings of Jennifer continued after the two
children were born, and were often done in their presence,
which caused them to cry. The older child (born in August
2000, so 4 years old when her mother refused to return to
Belgium in October 2004) would tell her father to stop,
but without success. Physical abuse of the daughter by
her father began when she started wetting her bed. He
would spank her, and once when Jennifer entered the
girl’s bedroom and told Davy to stop beating their daughter
he grabbed Jennifer by the throat and shoved her out of the
room. Once he struck the daughter a sharp blow to the side
of her head. His mother (the daughter’s grandmother)
struck the daughter in the head at least twice.
Davy also abused Jennifer verbally in the children’s
presence, calling her a “cunt,” “whore,” “lazy fucking
bitch,” and “lazy fat bitch.” (He is fluent in English, as are
the children.) Davy once told their daughter “Fuck
mommy.” And one time he picked her up, sat her on his
lap, and said, “Tell Mommy she’s a cunt.”
In 2004, during a visit to Jennifer’s parents, Jennifer told
Davy that she and the children would not return to Bel-
gium. He threatened to kill the children. He had earlier
threatened to kill Jennifer. And the next day, in a conver-
sation with Jennifer’s brother, he threatened to kill “every-
body.” Jennifer told her father about Davy’s threats, and the
police were called and an officer escorted him from
No. 05-2831 5
the house.
After he returned to Belgium without the children, the
daughter stopped wetting her bed—except after her week-
ly phone conversation with him. It was after returning
to Belgium that he obtained ex parte the order from the
Belgian court awarding him custody of the children and
thus providing him with the precondition to bringing
this suit.
If the affidavits submitted by Jennifer are accurate, as
we must assume they are, given the procedural posture
of the case, Jennifer has satisfied the statutory require-
ment that her evidence of risk of harm to the children be
clear and convincing. Cf. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255-56 (1986); Masson v. New Yorker Magazine, Inc.,
501 U.S. 496, 508 (1991). But is it clear and convincing
evidence of a grave risk of harm? The district judge
thought not. In reaching this conclusion, however, he
was unduly influenced by the fact that most of the physi-
cal and all the verbal abuse was directed to Jennifer rather
than to the children. The younger child, a boy, apparent-
ly wasn’t beaten at all; the girl was spanked and hit re-
peatedly, but not injured; and no expert evidence of the
psychological effect of Davy’s conduct on either child
was presented.
The judge inexplicably gave no weight to Davy’s threat to
kill the children. Perhaps, standing alone, such a threat
could be discounted as an emotional reaction to the prospect
of losing custody of them. But given Davy’s propensity for
violence, and the grotesque disregard for the children’s
welfare that he displayed by beating his wife severely and
repeatedly in their presence and hurling obscene epithets at
her also in their presence, it would be irresponsible to think
the risk to the children less than grave. The gravity of a risk
6 No. 05-2831
involves not only the probability of harm, but also the
magnitude of the harm if the probability materializes.
Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 377 (8th Cir.
1995); cf. United States v. Carroll Towing Co., 159 F.2d 169, 173
(2d Cir. 1947) (L. Hand, J.). The probability that Davy, or his
mother, another person of violent temper (if the affidavits
are true), would some day lose control and inflict actual
physical injury on the children (or at least on the daughter)
could not be thought negligible.
But against this it can be argued that the Hague Conven-
tion is really just a venue statute, designed “to deter parents
from engaging in international forum shopping in custody
cases.” Baxter v. Baxter, 423 F.3d 363, 367 (3d Cir. 2005); see,
e.g., Silverman v. Silverman, 338 F.3d 886, 899 (8th Cir. 2003).
Maybe we should be asking not what the risk to the children
might be in a jurisdiction that had no laws for the protection
of children, but merely whether the jurisdiction of residence
has adequate laws; Belgium, we can assume, does.
Friedrich v. Friedrich, 78 F.3d 1060, 1069 (6th Cir. 1996),
proposed such an approach, but did so in acknowledged
dictum, id. at 1069, since “Mrs. Friedrich alleges nothing
more than adjustment problems that would attend the
relocation of most children,” and thus her defense of grave
risk of harm failed at the threshold. Id. at 1067. The dictum
has been repeated, e.g., March v. Levine, 249 F.3d 462,
471 (6th Cir. 2001); Miller v. Miller, 240 F.3d 392, 402 (4th Cir.
2001); Blondin v. Dubois, 238 F.3d 153, 162 (2d Cir. 2001), and
it influenced the district court in this case, but we do not
think it correct. See Nunez-Escudero v. Tice-Menley, supra, 58
F.3d at 377. There is a difference between the law on the
books and the law as it is actually applied, and nowhere is
the difference as great as in domestic relations. Because of
the privacy of the family and parental control of children,
No. 05-2831 7
most abuse of children by a parent goes undetected. Penn-
sylvania v. Ritchie, 480 U.S. 39, 60 (1987); Coy v. Iowa, 487 U.S.
1012, 1022 (1988) (concurring opinion). To give a father
custody of children who are at great risk of harm from him,
on the ground that they will be protected by the police of
the father’s country, would be to act on an unrealistic
premise. The rendering court must satisfy itself that the
children will in fact, and not just in legal theory, be pro-
tected if returned to their abuser’s custody.
Moreover, to define the issue not as whether there is a
grave risk of harm, but as whether the lawful custodian’s
country has good laws or even as whether it both has and
zealously enforces such laws, disregards the language of the
Convention and its implementing statute; for they
say nothing about the laws in the petitioning parent’s
country. The omission to mention them does not seem to
have been an accident—the kind of slip in draftsmanship
that courts sometimes correct in the exercise of their inter-
pretive authority. If handing over custody of a child to an
abusive parent creates a grave risk of harm to the child, in
the sense that the parent may with some nonnegligible
probability injure the child, the child should not be handed
over, however severely the law of the parent’s country
might punish such behavior. In such a case, any order
divesting the abducting parent of custody would have to be
conditioned on the child’s being kept out of the custody of
the abusing parent until the merits of the custody dispute
between the parents could be resolved by the court in the
abusive parent’s country. At argument Davy’s lawyer was
willing to entertain the possibility that the district judge
should have imposed such a condition on the order return-
ing the children to Davy in Belgium. This concession alone
requires that we remand the case to the district court for
further consideration, for “in order to ameliorate any
8 No. 05-2831
short-term harm to the child, courts in the appropriate
circumstances have made return contingent upon ‘undertak-
ings’ from the petitioning parent.” Feder v. Evans-Feder, 63
F.3d 217, 226 (3d Cir. 1995); see also Gaudin v. Remis, 415
F.3d 1028, 1035-36 (9th Cir. 2005); Blondin v. Dubois, 189 F.3d
240, 248-49 (2d Cir. 1999).
But “undertakings,” as an alternative to refusing to return
the child, will not always do the trick. Walsh v. Walsh, 221
F.3d 204, 219 (1st Cir. 2000). The ex parte order that Davy
obtained, granting him custody of the children, does not
preclude Jennifer’s challenging his custody; and we are told
that in April of this year Jennifer filed such a challenge in a
Belgian court but that the court has taken no action. Pending
resolution of the custody dispute, prudence would require
that the children if returned to Belgium be placed in the
custody of some third party in that country—obviously not
Davy’s mother! (assuming as we must at this stage of the
litigation that she really did beat her granddaughter).
Instead of remaining in their own mother’s custody in the
United States, the children might find themselves in a
foster-care institution until the custody litigation was
resolved, even though there is no suggestion that their
mother is an abusive, neglectful, or otherwise unfit parent,
whatever the deficiencies in her housekeeping skills.
Return plus conditions (“undertakings”) can in some,
maybe many, cases properly accommodate the interest in
the child’s welfare to the interests of the country of the
child’s habitual residence. Often the bulk of the evi-
dence concerning risk of harm will be found in that country
and the left-behind parent’s defense to charges of abuse may
be more difficult and costly to prepare and present in the
country to which the abducter has fled. But in cases of child
abuse the balance may shift against return plus conditions.
In a comment on “undertakings” that was quoted with
No. 05-2831 9
approval in Danaipour v. McLarey, 286 F.3d 1, 25 (1st Cir.
2002), the State Department has advised that “if the
requested . . . court is presented with unequivocal evidence
that return would cause the child a ‘grave risk’ of physical
or psychological harm, . . . then it would seem less appropri-
ate for the court to enter extensive undertakings than to
deny the return request. The development of extensive
undertakings in such a context could embroil the court in
the merits of the underlying custody issues and would tend
to dilute the force of the Article 13(b) exception.” The
court added that “undertakings are most effective when the
goal is to preserve the status quo of the parties prior to the
wrongful removal. This, of course, is not the goal in cases
where there is evidence that the status quo was abusive.”
286 F.3d at 25; see also Hoegger, supra, 18 Berkeley Women’s
L.J. at 196-99; Weiner, supra, 69 Fordham L. Rev. at 678-81.
Concern with comity among nations argues for a nar-
row interpretation of the “grave risk of harm” defense; but
the safety of children is paramount. Jennifer presented at the
summary judgment stage sufficient evidence of a grave risk
of harm to her children, and the adequacy of conditions that
would protect the children if they were returned to their
father’s country is sufficiently in doubt, to necessitate an
evidentiary hearing in order to explore these issues fully.
The hearing should be held promptly and conducted
expeditiously in order to comply with the Convention’s goal
of expediting the return of abducted children to their
country of habitual residence, Hague Convention, supra,
Art. 11; March v. Levine, supra, 249 F.3d at 474, provided that
the return will not expose the children to a grave risk of
harm.
REVERSED AND REMANDED.
10 No. 05-2831
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-7-05