Saavedra v. Montoya

Decision Date12 April 2023
Docket Number21-CV-5418(EK)(VMS)
CourtU.S. District Court — Eastern District of New York


ERIC KOMITEE United States District Judge

Petitioner Edgar Hernan Parra Saavedra (Petitioner) and Respondent Alison Esteffany Jimenez Montoya (Respondent) are the parents of a minor child M.P.J. They are both Colombian citizens, and M.P.J. was born in Colombia. Respondent brought M.P.J. to the United States in September 2020 and has not returned to Colombia with the child since.

Petitioner brings this petition under the Hague Convention on the Civil Aspects of International Child Abduction, seeking an order directing M.P.J.'s return to Colombia. Respondent concedes that she wrongfully removed the child from Colombia and has retained him in the United States, in violation of Petitioner's parental rights. She opposes M.P.J.'s return, however, on the ground that the child would face a grave risk of harm if he were returned to Colombia.

After careful consideration, and for the reasons set forth in this Memorandum and Order, the Petition is granted, and the child is ordered returned to Colombia.

I. Relevant Procedural History

On September 29, 2021, Petitioner filed the instant action pursuant to the Hague Convention, requesting, among other relief, an order requiring Respondent to return M.P.J. to Colombia. See Verified Pet., ECF No. 1.

On October 4, 2021, the Court issued an order directing Respondent to show cause why the Petition should not be granted. Order to Show Cause 1, ECF No. 8. The Court also prohibited Respondent from removing M.P.J. from the five boroughs of New York City and the counties of Nassau and Suffolk; directed Respondent to bring all travel documents for herself and for M.P.J. to the scheduled show-cause hearing; and authorized the United States Marshal to effectuate service on Respondent. Id. at 2-3.

The proceeding was initially delayed by Petitioner's protracted difficulties in serving Respondent, which included numerous unsuccessful attempts to serve her at physical addresses in New York. See ECF No. 15 (failed attempt by U.S. Marshal at address received from U.S Department of State); ECF No. 16 (same); ECF Nos. 22, 24; Pet'r Hr'g Ex. 11, ECF No. 51-11 (failed attempt at New York address to which Petitioner had mailed a package for M.P.J.). Service was ultimately accomplished in February 2022 after the Court ordered service by alternative methods. See Mem. & Order dated Feb. 8, 2022 at 23, ECF No. 26 (ordering service by, inter alia, the email address and WhatsApp number Petitioner used to communicate with Respondent); Aff. of Service, ECF No. 27.

On February 17, 2022, Respondent finally appeared, and the Court set an expedited schedule for an evidentiary hearing on the Petition. See Docket Order dated Feb. 17, 2022, ECF No. 29.

The hearing took place over five days in May and September of 2022.[1] The Court permitted witnesses who planned to appear to submit direct testimony in writing. Order dated Mar. 29, 2022 at 1, ECF No. 38. Petitioner and Miriam Sofia Atencio Gomez, a Colombian trial attorney retained as an expert witness, submitted testimony on behalf of Petitioner.[2] Respondent and Jimmy Fernando Jimenez Meneses, also a Colombian attorney retained as an expert witness, submitted testimony on behalf of Respondent.[3] During the hearing, the Court allowed additional direct testimony from these witnesses, and each was crossexamined. M.P.J. did not testify. Neither party introduced any evidence from a clinical or forensic psychologist or other similar professional.[4]

Respondent and Petitioner submitted proposed findings of fact and conclusions of law after the hearing. See Resp't Proposed Findings of Fact & Conclusions of Law (“Resp't Br.”), ECF No. 147; Pet'r Proposed Findings of Fact & Conclusions of Law (“Pet'r Br.”), ECF No. 149. The Court heard oral argument on the post-hearing submissions on December 1, 2022, after which the parties made supplemental submissions. See ECF Nos. 157, 160, 161.

II. Findings of Fact

The Court makes the following findings of fact in accordance with Rule 52(a) of the Federal Rules of Civil Procedure.[5] As a general matter, the Court credited witnesses' testimony according to their level of specificity: as noted below, detailed descriptions and particular examples were accorded more weight, while vague statements and generalizations were given less weight.

A. Petitioner and Respondent Meet and Begin a Relationship in 2011

Petitioner and Respondent met in Bogota, Colombia in about 2011, when Petitioner was eighteen years old and Respondent was forty-four. Resp't Aff. 1:13-17, 2:1; Pet'r Aff. ¶ 5. When the parties met, Respondent was working as a dancer and sex worker at a “strip club” in Bogota. Id. at 1:13-17. Petitioner, who was married at the time, was a civil engineer. Tr. 246:7, 282:25-283:1.6 At the start of their relationship, Petitioner offered to support Respondent financially and to pay for her university studies if she agreed to quit her sex work, as well as any drug or alcohol use. Resp't Aff. 1:20-21; Tr. 291:12-13.

Shortly after the start of their relationship, Respondent moved back to her hometown of Medellin, where Petitioner provided her with an apartment and covered other living expenses. Resp't Aff. 2:4-9. She described this as one of his “conditions” for their relationship. Id. Petitioner continued to reside primarily in Bogota. Tr. 30:8-13. He would visit her in Medellin approximately every eight days and stay for two or three days at a time. Id.; Resp't Aff. 2:19-20.

1. Evidence Concerning Petitioner's Physical and Verbal Abuse[6]

During these first few years of their relationship, between 2011 and 2013, Petitioner engaged in what the Court can only characterize as antisocial (and likely illegal) behavior. Respondent asserted, and Petitioner did not deny, that he would frequently bring her to “strip clubs,” “brothels,” and “sex clubs” where he would engage in sexual acts with sex workers in front of Respondent. Resp't Aff. 2:20-3:5. According to Respondent, Petitioner would also bring cameras into these clubs - concealed in items like eyeglasses and keychains - to film such acts surreptitiously. Id. at 3:14-17; Tr. 52:5-53:9. Respondent testified that Petitioner showed her “some of the videos he took,” including what she described as a “final presentation of those videos.” Tr. 53:7-9.

During these visits to sex clubs, Petitioner would often become physically and verbally abusive toward Respondent. In her written testimony, Respondent asserted that Petitioner “would get drunk” and then “start[] to treat me awful[,] saying things like if I remembered where he got me from and that I was a worthless whore and a bitch.” Resp't Aff. 3:6-8. Petitioner would then “grab[] me by the neck and start[] cho[king] me,” and he “often bit me to the point of leaving marks and causing me extreme pain and discomfort. . . . Sometimes he would grab me by the arms so hard he would leave bruises all over.” Id. at 3:811. At the hearing, Respondent similarly testified that when Petitioner became drunk, he would treat me very badly,” and it was “his bad habit to bite me frequently and choke me.” Tr. 31:8-11. Respondent asserted that [m]any times,” other sex workers were “witnesses to these events,” id. at 30:25-31:1, and they would “sometimes . . . leave the booth [at the strip club or brothel] running thinking that they were going to be strangled too.” Resp't Aff. 3:11-13. She recalled at the hearing that one such episode like this occurred at a hotel. Tr. 31:8-14.

Another biting incident occurred when Petitioner and Respondent were eating at a restaurant with Respondent's family. Id. at 35:22-36:6. According to Respondent, “all of a sudden,” Petitioner started to bite her on her upper arm in front of her family. Id. at 35:22-36:6, 37:18-38:5. As discussed below, Petitioner admitted to this episode. See id. at 304:14-305:25.

Respondent also asserted that the two had “fights” and “altercations” at their Medellin apartment, which on “several occasions . . . [got] so heated that the neighbors would call the police.” Resp't Aff. 5:1-2; see Tr. 42:7-9. She testified at the hearing to one of these incidents - a “stronger argument” that occurred just after they had returned from a brothel, during which Petitioner was “pushing,” “grabbing,” “biting,” and “choking” her. Tr. 39:25-40:1, 41:14-42:1. In response, Respondent testified, she began packing her belongings to leave, prompting Petitioner to threaten to jump from the balcony of their seventh-floor apartment. Id. at 40:7-13. The police arrived, and Respondent ended up staying at her mother's house for two days before returning to the apartment. See id. at 40:13-20. No incident report or arrest was made for this or any other such incident. Resp't Aff. 5:5; see Tr. 141:21-25.

Respondent did not provide specific dates for these incidents, but testified that they occurred between 2011 and 2013. Tr. 34:5-11, 35:12-16, 141:18-22. She also testified that fights and arguments happened frequently during this period: roughly every week. See id. at 42:14-16.

In his written testimony, Petitioner denied ever being “abusive or violent, physically or psychologically toward Respondent.” Pet'r Aff. ¶ 47. When asked by his counsel during the hearing about Respondent's allegations of abuse, however, Petitioner admitted to using physical force against Respondent on two specific instances. He acknowledged that, “at the beginning” in 2011, we ha[d] a fight” in which he was drunk and “over used [his] force.” Tr. 302:16-303:1. Petitioner elaborated that during this incident, he ...

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