Jeremy D. Morley
(Author, The Hague Abduction Convention: Practical Issues and Procedures for Family Lawyers, published by ABA)
In a significant ruling, the Eleventh Circuit has ruled that a pattern of threats and violence directed against a child's parent but not specifically at a child, posed a grave risk of harm to the child warranting a refusal to order the child's return under the Hague Abduction Convention. Gomez v. Fuenmayor, 2016 WL 454037 (11th Cir. February 5, 2016).
During a contentious custody battle in Venezuela over their daughter, the child's mother and her husband made several threats against the child's father. One death threat occurred in a Venezuelan courtroom. Those threats assumed a new dimension when actual violence began against the father's family. The father's girlfriend was shot while driving, minutes after dropping the father and his daughter off. The father's mother's car was damaged and vandalized. In addition, on at least two occasions, drugs were planted in the car. Fearing for his and his family's safety, the father fled Venezuela for the United States, bringing the child with him in violation of a Venezuelan court's restraining order. Indeed, he forged the mother's signature on an authorization to leave Venezuela.
The issue was whether threats and violence directed against a parent, but not specifically against the child, could constitute a grave risk to the child within the meaning of the Convention, and whether there was clear and convincing evidence of grave risk to the child if she were returned to Venezuela.
The Court held that, where violence is directed at a parent that may threaten the well-being of a child, the grave risk exception in Article 13(b) of the Convention may apply. It then upheld the finding of the trial court that the scope and severity of the threats to the father were clearly sufficient to establish a grave risk to his daughter.
The Court held that a child's proximity to actual or threatened violence may pose a grave risk to the child; and that sufficiently serious threats to a parent can pose a grave risk of harm to a child, The Court stated that, “Ruling 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.” And it stated that, “Similarly, 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.”