Nunez-Escudero v. Tice-Menley

• Decision Date: 26 June 1995
• Docket Number: NUNEZ-ESCUDER,No. 94-1524,D,TICE-MENLE,P,94-1524
• Citation: 58 F.3d 374
• Parties: Enriquelaintiff-Appellant, v. Stephanie Roseefendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 374

58 F.3d 374

Enrique NUNEZ-ESCUDERO, Plaintiff-Appellant, v. Stephanie Rose TICE-MENLEY, Defendant-Appellee.

No. 94-1524.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 14, 1994.

Decided June 26, 1995.

Justin Harley Per, Minneapolis, MN, argued (Mary R. Vasaly, on the brief), for appellant.

Willem Frederik van Vliet, Minneapolis, MN, argued (William Dennis Hull, on the brief), for appellee.

Before MAGILL, Circuit Judge, JOHN R. GIBSON, Senior Circuit Judge, and LOKEN, Circuit Judge.

JOHN R. GIBSON, Senior Circuit Judge.

Enrique Nunez-Escudero appeals from the district court's order denying his petition for the return of his infant son to Mexico pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, Dec. 23, 1981, 51 Fed.Reg. 10493, 10498-502, as implemented by the United States in the International Child Abduction Remedies Act, 42 U.S.C. Secs. 11601-11610. We reverse the district court's order and remand to the district court for further proceedings.

Enrique Nunez-Escudero, a citizen of Mexico, married Stephanie Rose Tice-Menley, a citizen of the United States, in Mexico on August 10, 1992. The couple has one child, Enrique Nunez-Tice, born July 28, 1993, in Mexico. On September 21, 1993, Tice-Menley left Mexico with her infant son and returned to her parents' home in Cologne, Minnesota. Nunez-Escudero filed this action, alleging that Tice-Menley had wrongfully removed their son from Mexico in violation of the Hague Convention on the Civil Aspects of International Child Abduction. After receiving affidavits and holding a hearing, the district court denied Nunez-Escudero's claim. This appeal followed. ¹

The Convention was adopted by the signatory nations "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." Hague Convention, Preamble. Both the United States and Mexico are signatories to the Convention.

Under the Convention, as implemented by the Act, Nunez-Escudero must initially prove by a preponderance of the evidence that Tice-Menley removed their son from his "habitual residence." 42 U.S.C. Sec. 11603(e)(1). If Nunez-Escudero meets this burden, Tice-Menley must show by clear and convincing evidence the applicability of one of the exceptions set forth in Articles 13b or 20 of the Convention. 42 U.S.C. Sec. 11603(e)(2).

Two days before the hearing Tice-Menley submitted her affidavit, as well as affidavits from her parents and a psychologist. Without fully detailing all of Tice-Menley's allegations, she stated that Nunez-Escudero physically, sexually and verbally abused her, and that she was "treated as a prisoner" by her husband and father-in-law.

On January 21, 1994, the district court heard counsels' argument. The district court did not decide whether Tice-Menley removed the baby from his habitual residence. Instead, it refused to order the baby's return because Tice-Menley established one of the Article 13b exceptions. Specifically, the court determined that there was a grave risk that the return of the child would expose him to physical and psychological harm and place him in an intolerable situation. See Art. 13b, Convention; 42 U.S.C. Sec. 11603(e)(2)(A). The court reasoned: "to a six-month-old child the suggested action would, in fact, be both a physical and a psychological harm to the child." The court explained: "if there's any truth to the potentiality that a six-month-old child would be institutionalized by virtue of this action, that almost goes completely beyond the subject of being an intolerable situation." The next day, the court entered a written order ruling that Tice-Menley established that there is a "grave risk that the return of the child ... would expose him to physical and psychological harm and otherwise place [him] in an intolerable situation." Nunez-Escudero v. Tice-Menley, Civil File No. 3-93-835, Order at 1 (D.Minn. Jan. 23, 1994) (citing Art. 13, Convention).

I.

Nunez-Escudero argues that the district court considered evidence relevant only in a custody determination, not in applying the Convention. He contends that the Article 13b inquiry is limited to determining whether the courts of the child's habitual residence can provide protection to the child. Nunez-Escudero contends that a child can only be exposed to a grave risk of harm under Article 13b if the habitual residence cannot protect the child. Nunez-Escudero attacks the district court's consideration of the psychiatric evidence as inappropriate for the purpose of deciding the applicability of Article 13b.

This court recently confirmed that exceptions to the Convention are to be narrowly construed. Rydder v. Rydder, 49 F.3d 369, 372 (8th Cir.1995). We acknowledged that the Convention prohibits a court from adjudicating the merits of an underlying custody dispute, and that the Convention's primary purpose is to restore the status quo and deter parents from crossing international borders in search of a more sympathetic court. Id. (citing Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir.1993)) (Convention and Act grant courts jurisdiction to determine the merits of the abduction claim, but not the merits of the underlying custody issue). In Rydder, the mother attempted to establish the applicability of Article 13b by relying on written authorities recognizing the harm of separating a child from his primary caretaker. Id. at 373. We concluded this general evidence could not satisfy Article 13b, emphasizing there must be "specific evidence of potential harm." Id.

Tice-Menley offered some general evidence that the baby could be subject to a grave risk of physical or psychological harm or be placed in an intolerable situation in Mexico. She submitted an affidavit that she was physically, sexually, and verbally abused by her husband. She was not allowed to leave the family home without her husband or father-in-law. She also stated that she feared for her baby's safety. She stated that her husband and his family objected to her nursing the baby and that her husband refused to acquire a baby safety seat for the car. Tice-Menley also detailed accounts of her father-in-law's verbal abuse, and stated that she had seen her father-in-law hit his youngest son with a wooden plunger.

Although this evidence is more specific than that offered in Rydder, the evidence suffers from the same shortcoming. The evidence is general and concerns the problems between Tice-Menley, her husband and father-in-law. The district court based its order on the baby's age, the impact of separating the baby from his mother, and the possibility that the baby could be institutionalized during the pendency of the Mexican custody proceedings. Although Tice-Menley's counsel referred to the possibility of institutionalization in argument, Tice-Menley did not offer any such evidence. ²

The district court incorrectly factored the possible separation of the child from his mother in assessing whether the return of the child to Mexico constitutes a grave risk that his return would expose him to physical or psychological harm or otherwise place him in an intolerable situation. Art. 13b, Convention; 42 U.S.C. Sec. 11603(e)(2)(A). After examining the text of the Convention and cases from a range of other countries, the Supreme Court of Canada concluded that only severe potential harm to the child will trigger this Article 13b exception:

In brief, although the word "grave" modifies "risk" and not "harm," this must be read in conjunction with the clause "or otherwise place the child in an intolerable situation." The use of the word "otherwise" points inescapably to the conclusion that the physical or psychological harm contemplated by the first clause of art. 13(b) is harm to a degree that also amounts to an intolerable situation.

Thomson v. Thomson, 119 D.L.R.4th 253, 286 (Can.1994). See also In re A. (A Minor), [1988] 1 F.L.R. 365, 372 (Eng.C.A.) (abducting parent must prove grave risk of harm that is "something greater than would normally be expected on taking a child away from one parent and passing him to another"). We should give considerable weight to these well-reasoned opinions of other Convention signatories. See Air France v. Saks, 470 U.S. 392, 403, 105 S.Ct. 1338, 1344, 84 L.Ed.2d 289 (1985); 42 U.S.C. Sec. 11601(b)(3)(B) (recognizing "the need for uniform international interpretation of the Convention").

Moreover, most of the evidence Tice-Menley presented at the first hearing was irrelevant to the Article 13b inquiry. The Article 13b inquiry does not include an adjudication of the underlying custody dispute, Rydder, 49 F.3d at 372, and only requires an assessment of whether the child will face immediate and substantial risk of an intolerable situation if he is returned to Mexico pending final determination of his parents' custody dispute. It is not relevant to this Convention exception who is the better parent in the long run, or whether Tice-Menley had good reason to leave her home in Mexico and terminate her marriage to Nunez-Escudero, or whether Tice-Menley will suffer if the child she abducted is returned to Mexico.

We reject Nunez-Escudero's argument, however, that the Article 13b "intolerable situation" exception applies only if the government agencies and courts of Mexico are unable to protect the child if he is returned to that country. "[I]t is clear that Article 13b requires more than a cursory evaluation of the home jurisdiction's civil stability and the availability there of a tribunal to hear the custody complaint. If that were all that were required, the drafters of the Convention could have found a clear, more direct way of saying so." Tahan v. Duquette, 259 N.J.Super. 328, 613 A.2d 486, 489 (Ct.App.Div.1992).

Because Article 13 provides that the court "shall take...