Khan v. Fatima

• Decision Date: 04 May 2012
• Docket Number: No. 12–1692.,12–1692.
• Citation: 680 F.3d 781,82 Fed.R.Serv.3d 492
• Parties: Nasiruddin KHAN, Petitioner–Appellee, v. Tarfa FATIMA, Respondent–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

680 F.3d 781

82 Fed.R.Serv.3d 492

Nasiruddin KHAN, Petitioner–Appellee,

v.Tarfa FATIMA, Respondent–Appellant.

No. 12–1692.

United States Court of Appeals, Seventh Circuit.

Argued April 30, 2012.

Decided May 4, 2012.

Sarane C. Siewerth (argued), Attorney, Schiller, DuCanto & Fleck, Chicago, IL, for Petitioner–Appellee.

Bradley C. Giglio (argued), Attorney, Mevorah Law Offices, Bloomingdale, IL, for Respondent–Appellant.

Before BAUER, POSNER, and HAMILTON, Circuit Judges.

POSNER, Circuit Judge.

The International Child Abduction Remedies Act, 42 U.S.C. § 11601 et seq., which implements the Hague Convention on the Civil Aspects of International 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 removed from his custody (sole or joint) to the United States (usually by the other parent) to petition in federal or state court for the return of the child. 42 U.S.C. § 11603(a), (b). The petitioner in this case is the father, and the respondent, his wife, is the mother. She removed the child from their joint custody and is thus the “abductor.” The child is a girl not yet 4 years old, who in consideration of her privacy is referred to in the briefs and record only as ZFK.

The father, an optometrist in Edmonton, Alberta (Canada), wants to take the child back to Edmonton. He has filed for divorce in Canada on the ground of the mother's “physical or mental cruelty” to him, and seeks sole custody of the children (there is a second child). The mother, a U.S. citizen living in Illinois, wants to keep the children with her in the United States. The district court ordered ZFK returned to Canada with her father, and the mother appeals. The child was taken from her mother on March 9 of this year by U.S. Marshals, pursuant to an ex parte order by the district judge upon the claim of the father's lawyer that the wife is a flight risk because India, which the family was visiting when the mother flew to the United States with ZFK, is not a signatory of the Hague Convention, and so she might decide to fly back to India, taking the child with her. (Both parties are of Indian ethnicity.) Until our order of May 1, discussed below, was executed, the child was living with her father in a hotel in Chicago. The order (which was carried out on May 3) directed that she be returned to her mother's custody pending the final disposition of the appeal.

“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.” 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) (citations omitted), quoted in Van De Sande v. Van De Sande, 431 F.3d 567, 568 (7th Cir.2005). See also Karen Brown Williams, “Fleeing Domestic Violence: A Proposal to Change the Inadequacies of the Hague Convention on the Civil Aspects of International Child Abduction in Domestic Violence Cases,” 4 John Marshall L.J. 39, 42–45 (2011); Noah L. Browne, Note, “Relevance and Fairness: Protecting the Rights of Domestic–Violence Victims and Left–Behind Fathers Under the Hague Convention on International Child Abduction,” 60 Duke L.J. 1193, 1202–05 (2011); Roxanne Hoegger, “What If She Leaves? Domestic Violence Cases Under the Hague Convention and the Insufficiency of the Undertakings Remedy,” 18 Berkeley Women's L.J. 181, 187–88 (2003); Merle H. Weiner, “International Child Abduction and the Escape from Domestic Violence,” 69 Fordham L.Rev. 593, 634 (2000). As these articles explain, domestic violence is a common inciter to “abduction”—the abused spouse flees and takes her children with her. Accusations of domestic violence figure in the present case, as we are about to see.

Article 13(b) of the Convention provides a defense to the return of the “abducted” child if “there is a grave risk that [the child's] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” The respondent (the abductor) must prove this defense by clear and convincing evidence, 42 U.S.C. § 11603(e)(2)(A), and Hague Convention proceedings must be conducted with dispatch. Art. 11; March v. Levine, 249 F.3d 462, 474 (6th Cir.2001). (The articles that we cited explain that the framers of the Convention believed that abductors would mainly be abusive fathers rather than abused mothers. This may explain the heightened burden of proof that Congress imposed in the statute implementing the Convention.) The dispatch in this case may have been excessive—the procedural adequacy of the proceedings in the district court is the principal issue presented by the appeal. The only other issue is whether the father abandoned his custodial rights during the family's trip to India; we think it clear he did not.

The parties became husband and wife in an arranged marriage two years before the birth of ZFK, their first child. During the family's visit to India that we mentioned the wife complained to the Indian police of domestic abuse. The police investigated, charged the husband, and took away his passport; and it was in April of last year, while he was thus marooned in India, that the wife (pregnant at the time with their second child) flew to the United States with ZFK. Eventually the husband's passport was returned and he flew back to Canada and some months later, in February of this year, filed the petition for the return of the child. That child was born in the United States after the mother had brought ZFK here and is therefore a U.S. citizen. The father does not argue that the mother abducted that child, who continues to live with her mother.

On March 7 the father obtained an ex parte order from the district court requiringthe mother to yield custody of ZFK to him pending resolution of his petition, and on the thirteenth the judge scheduled an evidentiary hearing for March 22. It was held that day, with the judge as trier of fact since it was an equitable proceeding. He issued a final order of return the next day and also ordered the wife to hand over ZFK's passport to her husband so that he could take the child back to Canada. But the judge conditioned the orders on the husband's agreeing to pay a retainer (though not necessarily any additional fees) for an attorney who would be hired by the wife to handle the divorce and custody proceeding that her husband has begun in Canada.

On the wife's motion we stayed both the order of return, and the order that she turn over the child's passport to her husband, pending the decision of her appeal. And on May 1, after hearing oral argument in the appeal the day before, we ordered the child returned to the mother pending our decision, but that both the mother's passport and the child's passport be held by the U.S. Marshals Service until further notice.

The wife's testimony, if believed, reveals that her husband has a violent, ungovernable temper, had physically abused her on many occasions, some in the presence of ZFK (and in front of the child he had told his wife he would take out her eyeballs—though the child, not quite 3 years old at the time, may not have known what “eyeballs” are), had been rough on occasion with the child—indeed terrified the child—and that the child's mood had brightened greatly when she was living apart from her father. But if the husband's testimony is believed, he was, if not a model husband, not an abuser of his wife or the child. His lawyer conducted a vigorous cross-examination of the wife, based in part on discrepancies between her testimony at the evidentiary hearing and a deposition she had given a few days earlier. She stood her ground, making few concessions to the cross-examining attorney.

Rule 52(a)(1) of the civil rules requires the judge to “find the facts specially and state [his] conclusions of law separately” when he is the trier of fact. He is not excused from this duty in a proceeding under the Hague Convention. And the duty is not waived—indeed it is at its most exacting—when as in this case plaintiff and defendant testify inconsistently and it is impossible to demonstrate by objective evidence which one is telling the truth, or more of the truth. The trier of fact must decide whom to believe (and how much to believe) on the basis of the coherence and plausibility of the contestants' testimony, corroboration or contradiction by other witnesses, and other clues to falsity and veracity.

The process of factfinding in such a situation is inexact and the findings that result are doubtless often mistaken. But the judge can't just throw up his hands, as happened in this case, because he can't figure out what is true and what is false in the testimony. There is no uncertainty exception to the duty imposed by Rule 52. As we said in another case, “One cannot but sympathize with the inability of the district judge in this case to say more than he did in justification of the damages that he assessed for loss of consortium. But the figures were plucked out of the air, and that procedure cannot be squared with the duty of reasoned, articulate adjudication imposed by Rule 52(a).” Arpin v. United States, 521 F.3d 769, 776 (7th Cir.2008).

And if there were such an exception, it would not be available when the evidentiary hearing had lasted only a day, as in this case. The judge could have adjourned the hearing for a few days to enable...