In re Parentage of M.V.U. , 2020 IL App (1st) 191762 ( 2020 )

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Appellate Court Date: 2021.12.27
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In re Parentage of M.V.U., 2020 IL App (1st) 191762Appellate Court In re PARENTAGE OF M.V.U., a Minor (Rocio Montes, Petitioner-
Caption Appellee, v. Jose Guadalupe Ignacio Ulloa Toscano, Respondent-
Appellant).
District & No. First District, Fourth Division
No. 1-19-1762
Filed December 3, 2020
Decision Under Appeal from the Circuit Court of Cook County, No. 2018-D-79090;
Review the Hon. Mary S. Trew, Judge, presiding.
Judgment Affirmed.
Counsel on Evan Whitfield, of Schiller Du Canto & Fleck LLP, of Chicago, for
Appeal appellant.
Anne M. Coladarci and John A. Coladarci, of Coladarci and Coladarci,
of Chicago, for appellee.
Panel JUSTICE REYES delivered the judgment of the court, with opinion.
Justices Hall and Lampkin concurred in the judgment and opinion.
OPINION
¶1 We begin by acknowledging the unique procedural posture of this case. This matter
commenced as a parentage action in the circuit court of Cook County filed by petitioner, Rocio
Montes (Rocio), against respondent Jose Guadalupe Ignacio Ulloa Toscano (Jose) seeking an
acknowledgement of parentage and child support for their daughter M.V.U. During the
pendency of the parentage petition, however, Jose filed a petition to return his daughter under
the Hague Convention (see International Child Abduction Convention Between the United
States of America and Other Governments Done at the Hague October 25, 1980, July 1, 1988,
1988 WL 411501, T.I.A.S. No. 411501 (hereinafter Hague Convention); 22 U.S.C. § 9001(2018) (Hague petition)) and the Uniform Child-Custody Jurisdiction and Enforcement Act
(UCCJEA) (750 ILCS 36/201 (West 2018)). As a result, the parentage petition was stayed
while litigation proceeded on the Hague petition. After an evidentiary hearing, the circuit court
determined that, while Rocio wrongfully removed M.V.U. from Mexico, Rocio proved by clear
and convincing evidence that she was justified in doing so because the child was subject to a
grave risk of harm. Jose now appeals this ruling, arguing that the circuit court erred in its
determination where the evidence failed to demonstrate that Rocio met her burden. Because
we conclude there was clear and convincing evidence supporting this defense, we affirm the
judgment of the circuit court.
¶2 BACKGROUND
¶3 For the purposes of the issue on appeal, we recite only those facts relevant to the disposition
of the case.
¶4 Rocio (a citizen of Mexico and the United States) and Jose (a citizen of Mexico) had a
daughter together, M.V.U. (a citizen of Mexico and the United States), in 2014. The parties
were never married. The child was born and resided in Guadalajara, Jalisco, Mexico, until
September 29, 2017, when Rocio moved to Chicago with the child.
¶5 On January 19, 2018, Rocio filed a petition in the circuit court to establish parentage,
custody, and child support as well as permission to change her daughter’s name.
¶6 After being served with the parentage petition, Rocio obtained a default judgment. Two
days before the matter was set for prove up, Jose filed a motion to vacate the default judgment
order. On July 11, 2018, Jose was granted 30 days to file a response or otherwise plead to
Rocio’s parentage petition. 1 In August 2018, Jose filed a Hague petition entitled “Verified
Petition for Return of Child Under the Hague Convention on the Civil Aspects of International
Child Abduction and the International Child Abduction Remedies Act” in August 2018. Jose
alleged he is the child’s father and the child was wrongfully taken by Rocio from her habitual
residence in Guadalajara, Jalisco, Mexico, on September 29, 2017, and now resides in Chicago
with Rocio. Jose further alleged that he was living with the child at the time she was removed
1
We observe that the order granting Jose leave to respond to the petition did not expressly vacate
the default judgment. No order vacating this judgment is included in the record on appeal.
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from Mexico and has exercised custody rights over her since her birth. The court stayed
Rocio’s parentage petition until further order of court. 2
¶7 On September 12, 2018, Rocio filed an answer to the Hague petition as well as affirmative
defenses. Pertinent to this appeal, Rocio denied that Mexico was the child’s habitual residence
and that Jose was carrying out his responsibilities toward their daughter. Rocio asserted three
affirmative defenses; however, the affirmative defense at issue in this appeal is the grave risk
exception under article 13(b) of the Hague Convention. See Hague Convention, supra, art.
13(b). In regard to that affirmative defense, Rocio alleged Jose was verbally, emotionally, and
physically abusive toward her while they were living together in Mexico. She asserted three
specific allegations of abuse. The first allegation involved a March 2017 argument where Jose
grabbed her by the neck while she was holding their two-year-old child and choked her. Rocio
asserted that her aunt, Maria de Lourdes Lozano Flores (Flores), heard her cry out and
witnessed Jose choking her. The second allegation occurred in January 2016 where the parties
were arguing and Jose yelled, “If you move back to Chicago, I’ll kill you first before you take
my baby.” The final allegation was that in August 2017, the parties argued over Rocio’s desire
to work outside of the home and have the child attend school. According to Rocio, Jose refused
to allow her to leave the home to work.
¶8 In support of her affirmative defenses, Rocio attached affidavits from her family members.
Each of these affidavits was written in Spanish and was accompanied by a notarized certificate
of translation. The first affidavit was from Flores, Rocio’s aunt. She attested that she resided
next door to Rocio in Mexico and she was able to hear the arguments she and Jose had. In
April 2017, she heard “a lot of yelling” coming from Rocio’s home, and she went into the
house to see what was happening. When she came in “[Rocio’s] boyfriend Jose Guadalupe
Ignacio Ulloa Toscano was holding her by the neck trying to choke her and as soon as he saw
me he let her go.” She further attested that she
“often would hear how he would threaten [Rocio] with not letting her go to work or
take her daughter to her sister’s house for visits, nor take her to Chicago with her family.
His phrase was always ‘calale’ (try me). Letting her know that if she contradicted him,
there would be consequences. He always tried to manipulate her, and everything was
bad to Jose ***.”
¶9 Rocio’s uncle, Jose Santana Lopez, also submitted an affidavit in which he averred he
helped take Rocio to the airport on September 29, 2017, at 3:30 a.m. “since she had to flee the
mistreatments of her boyfriend Jose.”
¶ 10 Rocio’s sister, Cynthia Lizette Montes Lozano, averred that Rocio and Jose “have always
been fighting.” Jose did not let Rocio work, even when he was unemployed and was mad when
Rocio went to work as an English teacher. According to Cynthia, “On several occasions my
sister Rocio Montes would kick her boyfriend Jose Guadalupe Ignacio Ulloa Toscano out of
the house because they would fight daily, and she didn’t want her daughter to witness daily
fights and mistreatments.”
¶ 11 Rocio’s grandfather, Jose Gilberto Montes Duenas (Duenas), averred that he resides in
Chicago and has a vacation home in Guadalajara, Jalisco, Mexico. Between May 24, 2015, and
2
Article 16 provides that, “until it has been determined that the child is not to be returned under this
Convention,” the state to which the child has been removed “shall not decide on the merits of rights of
custody.” Hague Convention, supra, art. 16.
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September 29, 2017, he loaned his vacation home to Rocio so she could live there with the
child. On some occasions, Jose would sleep over. Duenas further testified that Jose was
“always in a bad mood.”
¶ 12 Jose filed a reply to Rocio’s affirmative defenses in which he denied all of her allegations.
¶ 13 Jose moved for judgment on the pleadings pursuant to section 2-615(e) of the Code of Civil
Procedure (Code) (735 ILCS 5/2-615(e) (West 2018)). 3 After hearing arguments from both
parties, the circuit court granted Jose’s section 2-615(e) motion as to two issues. First, the
circuit court found there was no material issue of fact with regard to the issue of habitual
residence of the minor child, that being the country of Mexico. Second, the circuit court found
that there was no material issue of fact with regard to the exercise of custodial rights by Jose
at the time of removal. Therefore, the circuit court granted the section 2-615(e) motion as to
those issues only.
¶ 14 Evidentiary Hearing 4
¶ 15 Having determined that Jose’s Hague petition met the prima facie requirements for a
wrongful removal determination, the circuit court conducted an evidentiary hearing on Rocio’s
affirmative defenses. The circuit court heard testimony from Jose, Rocio, Denise Montes
(Rocio’s sister), and Duenas (Rocio’s grandfather). As the sole issue on appeal is whether the
circuit court properly found that the grave risk exception applied, we limit the recitation of the
facts to that specific issue. 5
¶ 16 Jose testified with the assistance of a Spanish language interpreter as follows. The child
was born in Jalisco, Mexico. At that time he was not residing in Jalisco but would visit each
weekend. In the middle of 2016, he moved into Duenas’s home in Jalisco to live with Rocio
and the child. Jose denied having a difficult relationship with Rocio.
¶ 17 As to the March 2017 incident, Jose testified they were inside Duenas’s home and they
were arguing. While they were arguing, Flores (Rocio’s aunt) came inside the house. He denied
getting angry with Rocio, raising his voice, and touching her. Jose further testified that after
this incident they continued to reside together.
¶ 18 Regarding the alleged January 2016 argument, Jose testified that it was a discussion, not
an argument. Jose denied saying that if Rocio tried to take the child to Chicago he would kill
Rocio. Jose also denied telling Rocio that her job was to stay home and take care of the baby.
According to Jose, Rocio decided on her own to quit her job.
¶ 19 On cross-examination, Jose testified that he never hit or choked Rocio and he never
physically abused their daughter.
¶ 20 Rocio testified in Spanish with the assistance of a Spanish language interpreter. Rocio
testified she met Jose in 2005 while she was living in Jalisco. After she informed him she was
3
The record does not contain a written motion for judgment on the pleadings. However, there is no
dispute between the parties that Jose made this motion orally. The record is further devoid of any other
motions made in conjunction with this petition.
4
The evidentiary hearing was conducted with the assistance of a Spanish language interpreter.
5
After Rocio presented her case-in-chief, Jose moved for a directed finding as to all three of her
affirmative defenses. The circuit court granted the directed finding as to the other two affirmative
defenses. The circuit court’s determination as to these directed findings is not at issue on appeal.
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pregnant, Jose demanded she obtain an abortion. Rocio disagreed, and Jose moved out. Almost
two years after the child was born, Jose moved in with her in March 2016. Regarding the March
2017 argument, Rocio testified that they were arguing about her going to the United States to
visit her family—Jose did not want her to go. During the argument, Jose choked her with one
hand while she was holding their two-year-old child. She was screaming for him to stop when
her aunt came into the room and he let go. After that fight, she stayed in her bedroom with the
child and kept the door locked. Jose slept in a different room.
¶ 21 Regarding the January 2016 incident, Rocio testified that Jose threatened to kill her if she
moved to Chicago with the child. She also testified that in August 2017 she obtained
employment at a school as an English teacher. The school would allow the daughter to attend
kindergarten for free. Jose did not want her to go to work or for their child to attend school, so
he threatened her, and she only worked there for a few days as a result.
¶ 22 In addition, Rocio testified that there were other incidents where Jose threatened her. In
September 2017, she wanted to visit her sister (who resided in the same town), and he
threatened her so she would not go. According to Rocio, she did not report Jose to the police
because she does not trust the police. She was also scared of Jose and believed that she and her
daughter are in physical danger from him.
¶ 23 Denise Montes, Rocio’s sister, testified that in August 2017 Rocio called her during an
argument with Jose and told her Jose was not allowing her to work and take the child to school.
According to Denise, Rocio sounded upset, angry, and sad. She also heard Jose in the
background through the phone. Denise testified that Jose sounded “very upset” and that he was
speaking loudly. She heard him say he did not want Rocio to work because “it was not her duty
and that if she did she should expect the consequences.”
¶ 24 Rocio’s grandfather, Duenas, testified that he owns the property where Rocio and Jose
stayed in Jalisco, Mexico. According to Duenas, he had very little contact with Jose, but when
he observed Jose he appeared as though he was not happy.
¶ 25 Rocio rested, and Jose declined to put on any other evidence. After obtaining written
closing arguments, the circuit court took the matter under advisement.
¶ 26 On April 11, 2019, the circuit court issued a written memorandum order denying Jose’s
Hague petition. In doing so, the circuit court determined that Rocio was “a highly credible
witness” and that Jose was not a credible witness. The court further found that Denise’s
testimony was credible and the grandfather’s testimony was not relevant to the issue at bar.
The circuit court then made the following findings of fact:
“The sister, Denise, who lives in Chicago, testified to the fact that she overheard
conversations between Jose and Rocio while on the telephone in mid-August 2017 with
Rocio. The topic of conversation she overheard between Jose and Rocio was Jose
saying ‘no’ to Rocio working. She described Jose as saying ‘no’ and speaking to Rocio
in a loud and upset tone of voice. The call was initiated by Rocio to Denise. On cross-
examination Denise said there were several phone calls to her during this same time
period about the same topic.”
¶ 27 In regard to Rocio’s testimony, the circuit court made the following findings about the
March 2017 argument:
“[Rocio] described an argument where, in March 2017 while she was holding the baby,
Jose began choking her with one hand. Rocio began screaming, and Jose stopped the
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assault when Rocio’s Aunt walked in. She told Jose to leave and he left for a couple of
weeks and then returned. Rocio testified on cross examination that in January 2016,
Jose threatened to kill her, and then he moved in two months later. Rocio testified she
did not call the police because she believed the local police to be corrupt. She admitted
on cross examination that she continued to reside with Jose until August 2017. Rocio
testified as to the fact that, in August 2017, Jose prohibited her from working as an
English teacher where she could have also had free childcare. She testified that she
resigned on the third day because Jose told her she could not work. In September 2017
Rocio left Mexico with the minor child and traveled to the United States. She did not
inform Jose.”
¶ 28 The circuit court found the following facts regarding Jose’s testimony:
“He testified he moved in with Rocio in 2016, and while he does not remember the
month, he thinks it was in the middle of the year. He testified that Rocio’s parents
moved back to Chicago in May 2016. He said that he and Rocio did not have a difficult
relationship, but, like all couples, they did argue. Jose acknowledged that there was an
argument in March 2017 in Rocio’s grandparent’s [sic] house. He claimed that Rocio
was not holding the baby, and that the baby was outside with no one watching her. He
testified (as did Rocio) that Rocio’s Aunt came in because she heard the argument. He
denied being angry or raising his voice, but acknowledge that the Aunt heard the
commotion. He denied choking Rocio. He also denied that Rocio asked him to move
out in August 2017.”
¶ 29 Based on these findings of fact and the court’s assessment of the witnesses’ credibility, the
circuit court found by clear and convincing evidence that there was a grave risk that the return
of the minor child would expose her to physical or psychological harm or otherwise place the
child in an intolerable situation.
¶ 30 On May 10, 2019, Jose filed a motion to reconsider the April order, which the trial court
denied. The trial court further found that the April 11, 2019, order was final and appealable
pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016) and that there was no just
reason to delay its enforcement or appeal. This appeal followed.
¶ 31 ANALYSIS
¶ 32 We initially observe that, while state and federal courts share concurrent jurisdiction over
Hague petitions, most are brought in federal courts. See 22 U.S.C. § 9003(a), (b), (d) (2018).
This is especially true in Illinois, as this court has had no opportunity to review a respondent’s
grave risk defense. Therefore, we must look outside our Illinois jurisprudence. Although
federal law and the law of those states outside of Illinois do not have any precedential value,
we may consider this case law as persuasive authority. See Duncan v. FedEx Office & Print
Services, Inc., 2019 IL App (1st) 180857, ¶ 20; see also State Bank of Cherry v. CGB
Enterprises, Inc., 2013 IL 113836, ¶ 53 (“we may afford a Seventh Circuit decision more
persuasive value than we would the decisions of other federal courts, provided it is reasonable
and logical”).
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¶ 33 Hague Convention
¶ 34 We begin our analysis with some background on the Hague Convention, which was
implemented in the United States by the International Child Abduction Remedies Act (22
U.S.C. § 9001 et seq.) “[t]o address the problem of international child abductions during
domestic disputes.” (Internal quotation marks omitted.) Lozano v. Montoya Alvarez, 572 U.S.
1, 4 (2014). It provides that a child wrongfully removed from her country of “habitual
residence” ordinarily must be returned to that country. Monasky v. Taglieri, 589 U.S. ___, ___,
140 S. Ct. 719, 722-23 (2020). Both the United States and Mexico are Hague Convention
signatories. It is the Hague Convention’s core premise that “the interests of children *** in
matters relating to their custody” are best served when custody decisions are made in the
child’s country of “habitual residence.” Hague Convention, supra, at *2; see Abbott v. Abbott,
560 U.S. 1, 20 (2010).
¶ 35 The Hague Convention recognizes certain exceptions to the return obligation. See Lozano,
572 U.S. at 5; Chafin v. Chafin, 568 U.S. 165, 169 (2013). Prime among them, a child’s return
is not in order if the return would place her at a “grave risk” of physical or psychological harm
or otherwise in “an intolerable situation.” Hague Convention, supra, art. 13(b); see 22 U.S.C.
§ 9003(e)(2)(A); Monasky, 589 U.S. at ___, 140 S. Ct. at 723. This provision has been
recognized by the United States Supreme Court as “a mechanism for guarding children from
the harms of domestic violence.” Monasky, 589 U.S. at ___, 140 S. Ct. at 729; see also Khan
v. Fatima, 680 F.3d 781, 796 (7th Cir. 2012) (credible testimony of spousal abuse, carried out
in the presence of the child at issue, supports a finding that return of the child to the abuser
poses a grave risk of at least psychological harm).
¶ 36 Standard of Review—Denial of a Hague Petition
¶ 37 We review the factual findings of the circuit court for clear error but determine de novo
whether those facts establish a grave risk of harm. Ortiz v. Martinez, 789 F.3d 722, 728 (7th
Cir. 2015); Ermini v. Vittori, 758 F.3d 153, 160 (2d Cir. 2014); Cuellar v. Joyce, 596 F.3d 505,
509 (9th Cir. 2010). “Clear-error review has a particular virtue in Hague Convention cases.”
Monasky, 589 U.S. at ___, 140 S. Ct. at 730. It has been observed by the United States Supreme
Court that, “[a]s a deferential standard of review, clear-error review speeds up appeals and thus
serves the Convention’s premium on expedition.” Id. at ___, 140 S. Ct. at 730.
¶ 38 Grave Risk
¶ 39 On appeal, Jose maintains that the only issue is whether Rocio established that return to
Mexico would place the child at “grave risk of harm” under the demanding standard of clear
and convincing evidence. Jose argues that the two isolated incidents (the March 2017 choking
incident and the January 2016 threat) do not rise to the level of grave risk.
¶ 40 Since the adoption of the Hague Convention, there has been a shift toward recognizing
domestic violence as posing a grave risk toward the child. This shift commenced in 1990 when
a congressional resolution passed, which specifically found that “children are at increased risk
of physical and psychological injury themselves when they are in contact with a spousal
abuser” and “the effects of physical abuse of a spouse on children include *** the potential for
future harm where contact with the batterer continues” because “children often become targets
of physical abuse themselves or are injured when they attempt to intervene on behalf of a
parent.” H.R. Con. Res. 172, 101st Cong., 104 Stat. 5182, 5182 (1990) (enacted); see also
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Gomez v. Fuenmayor, 812 F.3d 1005, 1014 (11th Cir. 2016) (it “requires no stretch of the
imagination to conclude that serious, violent domestic abuse repeatedly directed at a parent
can easily be turned against a child”). The courts commenced recognizing these concepts
around 2000 and stated so in Walsh v. Walsh, 221 F.3d 204, 220 (1st Cir. 2000). In that case,
the First Circuit gave express recognition to the fact that the exposure of a child to domestic
violence is a sufficient risk to preclude the child’s return under the Convention. Id. Recently,
the grave risk defense was also recognized by the United States Supreme Court as “a
mechanism for guarding children from the harms of domestic violence.” Monasky, 589 U.S. at
___, 140 S. Ct. at 729.
¶ 41 A review of the case law in this area, however, reveals that a judicial consensus has not
emerged. While some federal courts read the grave risk defense narrowly (see Simcox v.
Simcox, 511 F.3d 594, 607 (6th Cir. 2007)), others, including our Seventh Circuit, have a
broader view, recognizing that domestic violence toward a spouse can amount to grave risk of
psychological injury to the child. See Van De Sande v. Van De Sande, 431 F.3d 567, 571 (7th
Cir. 2005); Khan, 680 F.3d at 787; see also Walsh, 221 F.3d at 220 (“both state and federal law
have recognized that children are at increased risk of physical and psychological injury
themselves when they are in contact with a spousal abuser”); Gomez, 812 F.3d at 1014 (holding
that “[r]uling to the contrary would artificially and unrealistically ignore the powerful effect
that a pattern of serious violence directed at a parent may have on his children”); Noergaard
v. Noergaard, 197 Cal. Rptr. 3d 546, 552 (Ct. App. 2015) (“Domestic violence or child abuse
constitutes a grave risk to the child.”). The Seventh Circuit has made clear that, “[i]f 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.” Van De Sande, 431 F.3d at 571. In fact, some courts have found that a
threat to kill a child or a history of domestic violence qualifies as a grave risk. See id. at 570;
see also Ermini, 758 F.3d at 164; Mohácsi v. Rippa, 346 F. Supp. 3d 295, 321 (E.D.N.Y. 2018)
(finding the respondent met her burden of demonstrating a grave risk of harm where the
petitioner engaged in a prolonged course of abuse of the respondent that included an incident
where he “nearly choked her to death” and had threatened to kill her).
¶ 42 The Second Circuit has characterized the grave risk exception as follows:
“[A]t one end of the spectrum are those situations where repatriation might cause
inconvenience or hardship, eliminate certain educational or economic opportunities, or
not comport with the child’s preferences; at the other end of the spectrum are those
situations in which the child faces a real risk of being hurt, physically or
psychologically, as a result of repatriation. The former do not constitute a grave risk of
harm under Article 13(b); the latter do.” Blondin v. Dubois, 238 F.3d 153, 162 (2d Cir.
2001).
Although “[s]poradic or isolated incidents of physical discipline directed at the child, or some
limited incidents aimed at persons other than the child, even if witnessed by the child, have not
been found to constitute a grave risk,” the Second Circuit has recognized that “[e]vidence of
[p]rior spousal abuse, though not directed at the child, can support the grave risk of harm
defense [citation], as could a showing of the child’s exposure to such abuse.” (Internal
quotation marks omitted.) Souratgar v. Lee, 720 F.3d 96, 104 (2d Cir. 2013); see also Ermini,
758 F.3d at 164-65 (noting spousal abuse can establish a grave risk of harm to the child in
certain circumstances).
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¶ 43 The State Department, however, has cautioned that “the person opposing the child’s return
must show that the risk to the child is grave, not merely serious,” and has stressed that article
13(b) “was not intended to be used by defendants as a vehicle to litigate (or relitigate) the
child’s best interests.” Hague International Child Abduction Convention; Text and Legal
Analysis, 51 Fed. Reg. 10,494, 10,510 (Dep’t of State Mar. 26, 1986) (public notice); see
Blondin, 238 F.3d at 162 n.10 (according “great weight” to the State Department’s
interpretation of the Hague Convention). But, as previously established herein, there is an
exception “where the petitioner showed a ‘sustained pattern of physical abuse and/or a
propensity for violent abuse’ that presented an intolerably grave risk to the child.” Souratgar,
720 F.3d at 104 (quoting Laguna v. Avila, No. 07-CV-5136 (ENV), 2008 WL 1986253, at *8
(E.D.N.Y. May 7, 2008)); see also Baran v. Beaty, 526 F.3d 1340, 1352 (11th Cir. 2008)
(affirming district court’s finding of grave risk due to the credible evidence that the father was
“a violent and abusive man with a lengthy history of inflicting physical and psychological
abuse on those he ostensibly loves the most” (internal quotation marks omitted)). As observed
by the First Circuit, the alleged harm “must be a great deal more than minimal” and “greater
than would normally be expected on taking a child away from one parent and passing him to
another.” (Internal quotation marks omitted.) Walsh, 221 F.3d at 218.
¶ 44 Based on the case law, we find the circuit court properly considered the evidence presented
in this case and correctly determined that Rocio proved by clear and convincing evidence a
grave risk of harm or otherwise an intolerable situation under article 13(b). See 22 U.S.C.
§ 9003(e)(2)(A); Hague Convention, supra, art. 13(b); see Monasky, 589 U.S. at ___, 140 S.
Ct. at 723. The evidence and testimony presented in support of this defense demonstrated a
pattern of escalating violence as well as a pattern of interference with Rocio’s personal liberty,
which, in turn, affected the psychological welfare of the child. Rocio’s testimony (which the
circuit court found to be credible) indicated that Jose’s interference with her personal liberty
commenced when she became pregnant with the child and he demanded she obtain an abortion.
After the child was born, Jose did not reside with the child, nor did he provide any support to
Rocio or the child. It was only in mid-2016 that Jose began living with Rocio and the child,
but the evidence demonstrated he still did not provide for their financial support. In fact, the
record demonstrates Jose made no effort to establish or assert his parentage of the child in any
legal or administrative forum.
¶ 45 Rocio’s testimony and the testimony of her various family members established that she
and Jose were frequently arguing and these arguments—at times—were witnessed by the child.
These arguments escalated into threats, with Jose threatening to kill Rocio on various occasions
if she were to leave him and take the child with her. These threats interfered with Rocio’s
personal liberty as demonstrated by the fact that when she did decide to leave Jose, she did so
secretly with the assistance of her family members during the middle of the night while Jose
was asleep.
¶ 46 Rocio further established that Jose was more than capable and willing to follow through on
his threats of physical harm when she testified regarding the March 2017 argument where they
argued about Rocio desiring to return to the United States with the child. Jose did not want her
to return, and he choked her while she was holding the child. This instance of physical abuse
was corroborated by the testimony of Rocio’s aunt who witnessed Jose choking Rocio. The
circuit court found Rocio’s testimony regarding this instance of physical abuse to be credible.
See In re Marriage of Bates, 212 Ill. 2d 489, 515-16 (2004) (“The trial court is in the best
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position to review the evidence and to weigh the credibility of the witnesses.”). As observed
by the Seventh Circuit, “Under the clear error standard, we will not overturn the district court’s
factual findings unless, after reviewing all the evidence, we are left with [a] definite and firm
conviction that a mistake has been [made].” (Internal quotation marks omitted.) Ortiz, 789 F.3d
at 728. “In other words, a district court’s credibility findings are binding on appeal unless the
[court] has chosen to credit exceedingly improbable testimony.” (Emphasis in original and
internal quotation marks omitted.) Id. at 729. Our review of the record reveals that the circuit
court did not choose to credit “exceedingly improbable testimony” and, in fact, much of it was
corroborated, albeit by Rocio’s family members. See id.¶ 47 In addition, Rocio demonstrated that Jose interfered with her personal liberty when he
prohibited her from working as a teacher outside the home. While Jose testified Rocio quit the
position based on her own free will, the circuit court determined Rocio to be credible while at
the same time found Jose not to be credible. The circuit court was also presented with the
testimony of Rocio’s sister Denise, who testified that she overheard arguments between Rocio
and Jose regarding Rocio’s desire to be employed. We see no reason on the record to disagree
with the circuit court’s credibility findings and, in fact, afford them great deference. See In re
Marriage of Bates, 212 Ill. 2d at 516.
¶ 48 In total, Rocio’s evidence clearly and convincingly established a pattern of escalating
domestic abuse beginning with Jose’s demand she obtain an abortion and ending with him
choking her while she held the child in her arms and making repeated threats on her life. In our
view, the evidence demonstrates that the child faces “a real risk” of being hurt psychologically
due to her witnessing these events. See Souratgar, 720 F.3d at 103-04 (domestic violence can
satisfy the grave risk defense when a “sustained pattern of physical abuse and/or a propensity
for violent abuse” is demonstrated “by clear and convincing evidence” (emphasis added and
internal quotation marks omitted)). For this court to set aside the circuit court’s credibility and
factual findings and grant Jose’s Hague petition would be to ignore the fact that domestic
violence toward a partner does cause grave harm to the child or place the child in an intolerable
situation. As recognized by the First Circuit, “credible social science literature establishes that
serial spousal abusers are also likely to be child abusers.” Walsh, 221 F.3d at 220 (citing Jeffrey
L. Edleson, The Overlap Between Child Maltreatment and Woman Battering, 5 Violence
Against Women 134 (1999); Anne E. Appel & George W. Holden, The Co-Occurrence of
Spouse and Physical Child Abuse: A Review and Appraisal, 12 J. Fam. Psychol. 578 (1998);
Lee H. Bowker et al., On the Relationship Between Wife and Child Abuse, in Feminist
Perspectives on Wife Abuse 158 (Kersti Yllo & Michele Bograd eds. 1988); Susan M. Ross,
Risk of Physical Abuse to Children of Spouse Abusing Parents, 20 Child Abuse & Neglect 589
(1996)). The First Circuit also recognized that “both state and federal law have recognized that
children are at an increased risk of physical and psychological injury themselves when they
are in contact with a spousal abuser.” Id. (citing H.R. Con. Res. 172, 101st Cong., 104 Stat.
5182, 5182 (1990) (enacted) (“Whereas the effects of physical abuse of a spouse on children
include *** the potential for future harm where contact with the batterer continues; ***
Whereas children often become targets of physical abuse themselves or are injured when they
attempt to intervene on behalf of a parent[.]”)).
¶ 49 In that vein, we disagree with Jose’s suggestion that for a grave risk defense to prevail the
incidents of domestic violence must have occurred over an extended period of time and involve
vicious circumstances. In support of this position Jose cites numerous cases where courts have
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found the grave risk defense applied in instances of extreme violence perpetuated on a domestic
partner. See Friedrich v. Friedrich, 78 F.3d 1060, 1069 (6th Cir. 1996); Simcox, 511 F.3d at
607-08; Hernandez v. Cardoso, 844 F.3d 692, 695 (7th Cir. 2016); Khan, 680 F.3d at 787;
Habrzyk v. Habrzyk, 775 F. Supp. 2d 1054, 1059 (N.D. Ill. 2011); Van de Sande, 431 F.3d at
570. While the case law in this area has correctly found a grave risk to the child under these
circumstances, we cannot say that a spouse must endure years of violent abuse for this
exception to be established. Here, Rocio established by clear and convincing evidence an
escalating pattern of verbal and physical abuse, which included restrictions on her movement
and employment. This court finds such evidence supports her asserted defense.
¶ 50 In so finding we also reject Jose’s argument that Rocio failed to prove the grave risk
defense by clear and convincing evidence because she did not present any expert testimony
regarding the psychological impact Jose’s behavior had on the child. We find that such
evidence is not required by article 13(b). Although such evidence may be helpful in a grave
risk defense, it is not necessary. Moreover, Jose provides us with no authority that places such
a burden on Rocio, and the case law in this area does not require it. Indeed, to require an
individual in Rocio’s position to obtain, at her expense, medical and psychological experts
would undermine the purpose of the grave risk defense. As observed by Judge Posner, “The
[Hague] 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 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 caretaker who is seeking to protect herself and the children from the
other parent’s violence.” (Internal quotation marks omitted.) Khan, 680 F.3d at 784. Indeed,
because Rocio is the “abductor” (while also being a domestic violence victim), the
implementation of the Hague Convention creates an imbalance between Jose and Rocio from
its inception. Specifically, the Hague Convention assists petitioners (Jose) in obtaining and
paying for counsel, but not respondents (Rocio). See 22 C.F.R. § 94.6(e) (2008). As Rocio
notes, Jose was assigned pro bono legal representation from a large family law firm. In
contrast, she is paying for her own private counsel. In addition, as Rocio asserts in her brief
and as is evident in the record, she does not have the financial means to present expert witnesses
on her behalf. For us to require such experts in order for her to meet her burden of clear and
convincing evidence would further the imbalance between Jose and Rocio.
¶ 51 In sum, based on the evidence presented in the record we affirm the judgment of the circuit
court of Cook County.
¶ 52 CONCLUSION
¶ 53 For the reasons stated above, we affirm the judgment of the circuit court of Cook County.
¶ 54 Affirmed.
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