MEMORANDUM AND ORDER CONCERNING A HAGUE CONVENTION PETITION

STEARNS, UNITED STATES DISTRICT JUDGE.

This case is before the court on a petition brought by Victor German (Victor) pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention) and the International Child Abduction Remedies Act (ICARA), 22 U.S.C. § 9003. Victor1 seeks the return to the Dominican Republic of his two minor daughters, D, age 4, and K, age 3, who were taken to the United States, allegedly without his permission, by their mother, Victor's then wife, respondent Yalersi Gomez Lopez (Yalersi).2

Procedural Background

The procedural background is brief. On November 11, 2014, Victor submitted a Request for Return of his children to the Central Authority of the Dominican Republic, the National Council for the Childhood and Adolescence (CONANI).3 On December 2, 2014, CONANI forwarded the request to the U.S. Department of State. On March 23, 2015, an official at the Department of State wrote to Yalersi notifying her of the request and of the duty of the United States under Article 7(f) of the Hague Convention to facilitate, if necessary, the initiation of judicial proceedings. On September 22, 2015, Victor filed a Petition for Return in the District of Massachusetts, the jurisdiction where Yalersi and the two girls now reside. On October 5, 2015, the Department of State made a formal request that the court act expeditiously on the petition.

On October 20, 2015, the court appointed Janice Bassil, Esq., to represent the interests of the children and scheduled an initial appearance for November 3, 2015. On October 23, 2015, the court issued an order requiring Yalersi to appear at the November 3, 2015 hearing, and enjoining her from removing the children from the jurisdiction of the court. The order was served on Yalersi by a U.S. Marshal that same day.

At the hearing, Elizabeth Abimola Thomas, Esq., entered a pro bono appearance for Yalersi. With the parties' agreement, the court scheduled an evidentiary hearing for November 10, 2015. At the hearing, the court heard the testimony of Yalersi, and through the video conferencing auspices of the U.S. Embassy in Santo Domingo, that of Victor.4 Family members also testified.

Legal Background

The Hague Convention requires the prompt return of children who have been wrongfully taken from the State in which they habitually reside. Chafin v. Chafin, ___ U.S. ___, 133 S.Ct. 1017, 1021, 185 L.Ed.2d 1 (2013). The resolution of a Hague Convention petition "begin[s] and end[s] with the question of [a child's] habitual residence at the time of removal." Mendez v. May, 778 F.3d 337, 344 (1st Cir.2015). If the State from which a child is taken is not his or her habitual residence, there is no remedy under the Hague Convention. The determination of a child's place of "habitual residence" also decides the State whose courts have jurisdiction to make custody decisions regarding the child.5

In the First Circuit, a district court presented with a Hague Convention petition is to look first "to the shared intent or settled purpose of the persons entitled to determine the child's permanent home; as a secondary factor, [the court] may consider the child's acclimatization to his or her current place of residence."6 Mendez, 778 F.3d at 344. In parsing the parents' settled purpose, a court is to "`look specifically to the last moment of the parents' shared intent.'" Id., quoting Mauvais, 772 F.3d at 12. A petitioner seeking the return of a child under the Hague Convention must establish by a preponderance of the evidence "that he or she (1) seeks to return the child to the child's country of habitual residence, (2) had custody rights immediately prior to the child's removal, and (3) was exercising those rights." Mendez, 778 F.3d at 343. Custody decisions are often difficult. Judges must strive always to avoid a common tendency to prefer their own society and culture, a tendency that ought not interfere with objective consideration of all the factors that should be weighed in determining the best interests of the child. This judicial neutrality is presumed from the mandate of the Convention, which affirms that the contracting states are "[f]irmly convinced that the interests of children are of paramount importance in matters relating to their custody." Convention Preamble, Treaty Doc., at 7. International law serves a high purpose when it underwrites the determination by nations to rely upon their domestic courts to enforce just laws by legitimate and fair proceedings. To interpret the Convention to permit an abducting parent to avoid a return remedy ... would run counter to the Convention's purpose of deterring child abductions by parents who attempt to find a friendlier forum for deciding custodial disputes.

Abbott v. Abbott, 560 U.S. 1, 20, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010).

There are exceptions. One is Article 13(b) of the Convention: "[A] court is not bound to order the return of the child if 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." The respondent must show a grave risk of potential harm by clear and convincing evidence.7 22 U.S.C. § 9003(e)(2)(A). In weighing the risk of harm, district courts "are not to engage in a custody determination, so `[it] is not relevant ... who is the better parent in the long run, or whether [the absconding parent] had good reason to leave her home ... and terminate her marriage.'" Walsh v. Walsh, 221 F.3d 204, 218 (1st Cir.2000), quoting Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 377 (8th Cir.1995).

Stipulated Facts

The following facts are stipulated by the parties.

1. The Petitioner lives in Santiago, Dominican Republic, and is a citizen of the Dominican Republic.

2. The Respondent lives in Methuen, Massachusetts.

3. The Petitioner and the Respondent were married on May 9, 2009, in the Dominican Republic.

4. The Petitioner and the Respondent are the parents of two children: D born in 2011, age 4, and K born in 2012, age 3.

5. The Respondent gave birth to Petitioner and Respondent's first child D in Lawrence, Massachusetts, in 2011.

6. The Respondent gave birth to Petitioner and Respondent's second child K in Lawrence, Massachusetts, in 2012.

7. Both children are under the age of sixteen.

8. On October 15, 2014, the Respondent traveled with both children from the Dominican Republic to Massachusetts.

9. Petitioner and Respondent were divorced in the Dominican Republic on April 22, 2015.

10. The children currently reside with the Respondent in Methuen, Massachusetts.

11. The children have not returned to the Dominican Republic from the United States since their arrival on October 15, 2014.

Additional Factual Findings

Based on the credible testimony and exhibits offered at the November 10, 2015 hearing, I make the following additional findings of fact.

Victor and Yalersi were married in their home village, Villa Tapia, in the Dominican Republic on May 9, 2009. This was a second marriage for Yalersi and a first for Victor, although he has nineteen-year-old twins, Ashley and Victor, Jr., from a prior relationship. Ashley lived with Victor and Yalersi and her half-sister D until 2013. She lives today with her father Victor. Victor, Jr. lives in Villa Tapia. Yalersi has a daughter by her first marriage, Sherley Bencosme, who is now a student at Middlesex Community College in Bedford, Massachusetts. Sherley lives with her mother and grandmother in Methuen.

Victor and Yalersi spent their married life at Residencial Blanca, Apartment E-4, in Cerros de Gurabo, Santiago. D was born to the couple on February 9, 2011; K was born on October 18, 2012. Just prior to giving birth to both children, Yalersi traveled to Lawrence, Massachusetts, where her mother then resided. After each child was born, she returned with them to the Dominican Republic.8 D and K lived at Residencial Blanca from the time they were born until Yalersi took them to the United States on October 15, 2014.9 Yalersi is a dual citizen of the Dominican Republic and the United States. She and her children possess valid U.S. passports.

Victor works as manager in a financial company in Santiago. He also owns an interest in a Gold's Gym in the nearby suburb of La Vega. He previously owned a construction company in Santiago. Yalersi provided coverage at Victor's office `when he traveled for business. Yalersi also owned a clothing boutique (Yalersi's Mansion of Couture) in the same building.

Prior to their divorce, the couple led a comfortable, upper middle class lifestyle supported by Victor's earnings from his various businesses. According to Yalersi, for the first few years of the marriage she "had everything."10 The couple took extended vacation trips together, including one for two weeks to Dubai (during which Yalersi's mother cared for D), as well as another to Madrid. Towards the end of the marriage, Victor's construction business went bankrupt, and he was able to provide less for the upkeep of the household.

D and K were both baptized in the Dominican Republic and three of their four godparents live there. Records provided by the Baby Montessori School in Santiago confirm that D, the older of the girls, was enrolled for two years in the infant's program. She had begun her first year of regular Montessori School when her mother relocated her to Methuen.11 Pet'r Ex. 21. K, the younger daughter, had developmental challenges and had yet to begin school. Both girls had playmates and extended family, including grandparents, aunts, uncles, and cousins, in the Dominican Republic. The children were under the care of a local pediatrician and dentist. Yalersi would tend to the children's medical appointments. Victor would take the children out for meals, on swimming excursions, and to family gatherings each Sunday at his grandmother's home in Villa Tapia.

As the marriage deteriorated, the couple began to fight, at times in the presence of the children.12 Yalersi suspected Victor of having an affair with another woman. She was also angry at his absences on business trips.13 Notwithstanding, the couple continued to live together with the children in Cerros de Gurabo. After a heated quarrel at a family gathering at Victor's grandmother's home in early October of 2014, Yalersi obtained a restraining order against Victor and he moved out of the home.14 When Victor learned that Yalersi was at Residencial Blanca packing up the family furniture, he obtained a court order directing her to stop.15 On October 15, 2014, Yalersi boarded a flight to Boston with the two children. She emailed a photo of the children to Victor prior to the plane taking off accompanied by a vulgarly worded text message telling Victor that he would never see his daughters again. On March 5, 2015, Yalersi filed for divorce in the Civil and Commercial Chamber of the Court of First Instances in Santiago.16 In her divorce petition, Yalersi listed Santiago, Dominican Republic, as her domicile.17

Yalersi's attorney included in her post-hearing filings a publication by the Department of State's Bureau of Diplomatic Security: Dominican Republic 2014 Crime and Safety Report (October 7, 2014), stating that kidnappings in the Dominican Republic are "prevalent" and have increased 32 percent (presumably over the prior year). Dkt 40-1 at 9. However, the Report's reference is to kidnappings for ransom, and not parental abductions. The Report also notes a general decrease in violent crime in the Dominican Republic and "a consolidation of political freedoms within [a] representational democracy with a series of generally free and fair elections." Id. at 6. The Department of State's Country Report on Human Rights Practices for 2014, while citing problems with corruption, notes improvements in the independence and functioning of the Dominican judiciary as well as respect by the government for civil rights and liberties. See http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?year=2014&dlid=236684 (accessed Nov. 18, 2015).

Ultimate Conclusions of Facts and Law

Victor has established by a preponderance of the evidence that he had shared custodial rights over the children and was exercising them at the time they were removed from the Dominican Republic. Victor also acted within his custodial rights by seeking a prompt return of the children under the Hague Convention.18

Yalersi has not shown by clear and convincing evidence that the children face the potential of a grave risk of harm should they be returned to the Dominican Republic. Whatever physical and verbal abuse Victor has inflicted on Yalersi (or vice-versa), there is no convincing evidence that he has ever harmed the children or has been anything other than an affectionate father to them (and D in particular).19 While I agree that there is a genuine risk of psychological trauma for children who are exposed to their parents' verbal and physical abuse of one another, this risk is obviated by the fact that Victor and Yalersi are permanently divorced with no prospect of living together again. Thus, the alarm that Yalersi's attorney raises, that sending D and K to the Dominican Republic will "once again [expose them] to physical and psychological harm because of [Victor's] violence towards their mother,"20 is highly improbable.21

Any concerns about a risk to the children are further alleviated by the duty assumed by the Dominican Central Authority under the Hague Convention of seeing that the children receive appropriate care until a permanent custody decision in made by the Dominican courts.22

In fixing the "last moment of the parents' shared intent," I look to the period immediately preceding Yalersi's unilateral decision to relocate the children to Methuen. It is abundantly clear that at the time, the parents considered themselves and the children as domiciled in the Dominican Republic.23

In making this determination, I have not given weight to the secondary factor of the children's acclimatization to their current place of residence in Methuen, given their ages, and the absence of any evidence that "unequivocally points to the conclusion that the [children have] acclimatized to the new location [in the United States] and thus [have] acquired a new habitual residence, notwithstanding any conflict with the parents' latest shared intent." Gitter v. Gitter, 396 F.3d 124, 134 (2d Cir.2005).24

ORDER

For the foregoing reasons, D and K will be returned expeditiously to the Dominican Republic. The parents are ORDERED to confer immediately with their attorneys and the attorney appointed by the court to represent the children, and with one another, to agree on the means of safely transporting the children to the Dominican Republic and for their temporary custody pending the entry of a permanent order by the Dominican courts. Until such time as the court approves the agreement (or issues an order of its own if the parties are unable to reach an agreement), the Order of October 23, 2015, forbidding any change in the current residence of the children in Methuen, without prior permission of the court. The court asks the U.S. Department of State to notify the Dominican Central Authority (CONANI) of this decision and to request its assistance in coordinating the return of the children and the appropriate Dominican judicial authorities. No costs or attorney's fees are awarded.

SO ORDERED.