Jacquety v. Baptista

Decision Date11 May 2021
Docket Number19-CV-9642 (RWL)
Citation538 F.Supp.3d 325
Parties Guillaume JACQUETY, Petitioner, v. Geraldine Helena Tena BAPTISTA, and Dr. Yousseff Zaim Wadghiri, Respondents.
CourtU.S. District Court — Southern District of New York

Jeremy David Morley, The Law Offices of Jeremy D. Morley, Neil Joshua Saltzman, Saltzman Law Offices, New York, NY, for Petitioner.

Luna Ngan Barrington, Richard A. Rothman, Irisa Chen, Robert Michael Swenson, John Nolan, Rachel Williams, Scott Tyler Christopher, Susan Lee Shin, Weil, Gotshal & Manges LLP, New York, NY, Malcolm S. Taub, Davidoff Hutcher & Citron LLP, Garden City, NY, Julie Hyman, for Defendant Geraldine Helena Tena Baptista.

Malcolm S. Taub, Davidoff Hutcher & Citron LLP, Garden City, NY, Julie Hyman, for Defendant Dr. Yousseff Zaim Wadghiri.


ROBERT W. LEHRBURGER, United States Magistrate Judge.

Petitioner, Guillaume Jacquety ("Guillaume" or "Petitioner"), and Respondent Geraldine Helena Tena Baptista ("Geraldine") were, until recently, husband and wife under French law.1 They have a young daughter, referred to herein as "E.J." In early November 2018, Geraldine traveled with E.J. from the family's home in Morocco to Geraldine's mother's home in Switzerland and then a few days later to Portugal, where they were joined by Respondent Dr. Yousseff Zaim Wadghiri ("Wadghiri"). From there, Geraldine, E.J., and Wadghiri traveled to New York City, where they have since lived in Wadghiri's home.

On October 18, 2019, Guillaume filed a petition seeking return of E.J. to Guillaume's custody in Morocco (the "Petition"), pursuant to the Hague Convention on Civil Aspects of International Child Abduction (the "Convention") and the Convention's implementing statute, the International Child Abduction Remedies Act, 22 U.S.C. § 9001, et seq. ("ICARA"). Respondents oppose the Petition on the grounds that E.J. will face a grave risk of harm if she were to return to Morocco. The Court conducted trial over twelve days, and received post-trial briefing.2 The Court has given the matter careful and thorough consideration, and for the reasons set forth below, DENIES the Petition.

Legal Framework

In order to contextualize the extensive facts of this matter it is helpful to first consider the governing legal principles.

A. The Convention's General Principles And Requirements

Both the United States and Morocco are signatories of the Convention. The Convention was adopted in 1980 "to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access." Convention, Preamble; 51 Fed. Reg. 10494, 10498 (March 26, 1986). "The Convention's drafters were particularly concerned by the practice in which a family member would remove a child to jurisdictions more favorable to his or her custody claims in order to obtain a right of custody from the authorities of the country to which the child had been taken." Mota v. Castillo , 692 F.3d 108, 112 (2d Cir. 2012) (internal quotation marks and brackets omitted); accord Abbott v. Abbott , 560 U.S. 1, 8, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010) (stating that Convention was adopted "in response to the problem of international child abductions during domestic disputes").

Accordingly, "[t]he Convention's remedy of repatriation is designed to preserve the status quo in the child's country of habitual residence and deter parents from crossing international boundaries in search of a more sympathetic court." Souratgar v. Lee , 720 F.3d 96, 102 (2d Cir. 2013) (internal quotation marks omitted). "The Convention does not establish substantive standards for resolving the merits of any underlying custody dispute. Rather, the Convention's focus is simply upon whether a child should be returned to her country of habitual residence for custody proceedings." Mota , 692 F.3d at 112 ; see 22 U.S.C. § 9001(b)(4) (providing that a court may only determine rights under the Convention, not the merits of custody disputes). In other words, "the focus of a court's inquiry in a Hague Convention case is not ‘the best interests of the child,’ as it typically is in a state custody case; rather it is the specific claims and defenses under the Convention." In re Lozano , 809 F. Supp.2d 197, 217 (S.D.N.Y. 2011) (internal quotation marks omitted), aff'd sub nom. Lozano v. Alvarez , 697 F.3d 41 (2d Cir. 2012), aff'd sub nom. Lozano v. Montoya Alvarez , 572 U.S. 1, 134 S.Ct. 1224, 188 L.Ed.2d 200 (2014).

To prevail on a claim under the Convention, a petitioner must show by a preponderance of the evidence that "(1) the child was habitually resident in one State and has been removed to or retained in a different State; (2) the removal or retention was in breach of the petitioner's custody rights under the law of the State of habitual residence; and (3) the petitioner was exercising those rights at the time of the removal or retention." Gitter v. Gitter , 396 F.3d 124, 130-31 (2d Cir. 2005) ; see also 22 U.S.C. § 9003(e)(1) (setting forth petitioner's burden). "[O]nce a [petitioner] establishes that removal was wrongful, the child must be returned unless the respondent can establish one of four defenses." Blondin v. Dubois , 189 F.3d 240, 244-45 (2d Cir. 1999) (" Blondin II ") (emphasis in original).

B. The Grave Risk Exception

One of those defenses, and the only one invoked by Respondents, is the grave-risk exception. "While the Convention is designed, in part, to ensure the prompt return of children wrongfully removed or retained from their country of habitual residence by one parent, it also protects children who, though so removed or retained, face a real and grave risk of harm upon return." Ermini v. Vittori , 758 F.3d 153, 156 (2d Cir. 2014). The grave-risk exception is found in Article 13 of the Hague Convention, which states that:

the judicial ... authority of the requested State is not bound to order the return of the child if the person ... which opposes its return establishes that ... 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.

Convention, art. 13(b).

The Second Circuit has explained the high bar required to meet the exception:

[A] grave risk of harm from repatriation arises ... in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection. The potential harm to the child must be severe, and the ... level of risk and danger required to trigger this exception has consistently been held to be very high. The grave risk involves not only the magnitude of the potential harm but also the probability that the harm will materialize.

Souratgar , 720 F.3d at 103 (internal quotation marks, citations, and emphasis omitted); see also Norden-Powers v. Beveridge , 125 F. Supp.2d 634, 640 (E.D.N.Y. 2000) (collecting cases). The exception is to be interpreted narrowly, "lest it swallow the rule." Souratgar , 720 F.3d at 103 (internal quotation marks omitted); see also 22 U.S.C. § 9001(a)(4) (referring to the Convention's "narrow exceptions").

The grave-risk inquiry is "not whether repatriation would place the respondent parent's safety at grave risk, but whether so doing would subject the child to a grave risk of physical or psychological harm." Souratgar , 720 F.3d at 104. "Sporadic 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." Id. (collecting cases). In contrast, "[t]he exception to repatriation has been found 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." Id. (internal quotation marks omitted). As the Second Circuit has explained:

[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) (" Blondin IV ")

"Evidence of prior spousal abuse, though not directed at the child, can support the grave risk of harm defense, as could a showing of the child's exposure to such abuse," though "[e]vidence of this kind ... is not dispositive in these fact-intensive cases." Souratgar , 720 F.3d at 104 (internal quotation marks, brackets, and citations omitted); see also Davies v. Davies , 717 F. App'x 43, 49 (2d Cir. 2017) (summary order) (finding no error in district court's grave risk finding "premised on overwhelming evidence of Mr. Davies's extreme violence and uncontrollable anger, as well as his psychological abuse of Ms. Davies over many years, much of which was witnessed by [the child]") (internal quotation marks and emphasis omitted); Ermini , 758 F.3d at 164 ("Spousal violence ... can also establish a grave risk of harm to the child, particularly when it occurs in the presence of the child"); Mohácsi v. Rippa , 346 F. Supp.3d 295, 320, 322 (E.D.N.Y. 2018) ("witnessing the abuse of [one's] mother is enough to establish the applicability of the defense"), aff'd sub. nom. In re NIR , 797 F. App'x 23 (2d Cir. 2019) (summary order affirming denial of petition).

Even if the requirements of the grave risk of harm exception are met, principles of comity require the court to "determine whether there exist alternative ameliorative measures that are...

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