MARC T. TREADWELL, District Judge.
This matter is before the Court on Petitioner Pandita Charm-Joy Seaman's Petition (Doc. 1) filed pursuant to the Hague Convention on the Civil Aspects of International Child Abduction ("Hague Convention" or "Convention") and its implementing legislation, the International Child Abduction Remedies Act ("ICARA"), 42 U.S.C. § 11601-11610. The Petitioner seeks the return of her four children to Mexico, alleging that the children were wrongfully removed from Mexico and taken to the United States by the children's father, Respondent John Kennedy Peterson.
The Petitioner filed her Petition on November 30, 2010. Because the Hague Convention required expedited proceedings, the Court convened evidentiary hearings on December 9, 17, and 21, 2010, and January 13, 2011. For the reasons set forth herein, and as announced in open court on January 13, 2011, the Petition is
The Petitioner, Pandita Charm-Joy Seaman, a Jamaican citizen, and the Respondent, John Kennedy Peterson, a United States citizen, were lawfully married on February 2, 2002, in Macon, Bibb County, Georgia. From July 2002 through May 2006, the Petitioner and Respondent had three children together, T.L.P., age eight years; C.D.P., age seven years; and R.T.P., age five years.
In May 2006, after four years together in the United States, the Petitioner, the Respondent, and their children moved to the state of Jalisco, Mexico. They briefly lived in Guadalajara and then moved permanently to nearby Chapala. While the precise motivation behind the family's decision to move to Mexico is disputed, what is clear is that the Petersons settled in Mexico and remained there until the Respondent brought the children back to the United States in October 2010. According to the Petitioner, the Petersons "were moving down [to Mexico]," and, in preparing to do so, sold their home in Houston County along with all their belongings. In her testimony in this Court, Wendy Chadwell, an investigator for the Houston County Department of Family and Children Services ("DFCS"), stated that, based on her investigation, it was clear the Petersons intended to stay in Mexico. While living in Mexico, the Petitioner and Respondent had their fourth child, S.A.P., now four years of age.
While the Respondent adduced no evidence suggesting any improper TFI influence on or contact with the children, he does claim that he downloaded TFI information relating to sexual contact with minors from his father-in-law's computer. Exhibits R-9A to R-9D. His father-in-law, Chrispin Seaman, works as a missionary in Mexico and operates Proyecto Refugio. Proyecto Refugio provides various services to the poor, including medical and dental care. According to Mr. Seaman, the activities of Proyecto Refugio are closely regulated and monitored by Mexican authorities and his mission work has never been the subject of any investigation. The Respondent also claims that he saw in Mr. Seaman's library a book authored by "Davidito," the son of TFI founder David Berg. The Respondent tendered Exhibit 9E, which consists of excerpts from Davidito's book that he downloaded from a website that purports to be an enemy of TFI. Respondent's Exhibits 9A through 9E describe and depict vile and, in many instances, likely illegal conduct. Mr. Seaman strongly denied these materials came from any computer he ever owned, and he denies ever having possession of Davidito's book.
The Respondent also claims that the Petitioner's niece was molested at his father-in-law's house and that his father-in-law allowed the perpetrator, who was allegedly involved in mission work, to stay in his house. Both the child's mother and Mr. Seaman denied that any molestation took place. However, Mr. Seaman testified
The Petitioner and Respondent's relationship has nearly always been marked by conflict. According to the Petitioner, after the death of the Respondent's stepfather, who also lived in Mexico, in November 2009, the Respondent began drinking heavily and smoking marijuana, causing the Respondent's behavior to become even more volatile. To bolster her claim that she, rather than the Respondent, is the more appropriate custodial parent of the children, the Petitioner cites numerous incidents in which the Respondent exhibited threatening, and even violent, behavior. In particular, the Petitioner cites at least three occurrences in which the Respondent berated the Petitioner and intimidated her physically. On multiple occasions, according to the Petitioner, the Respondent was physically abusive towards her, and he did not temper his abusive contact when the children were present.
Although these claims of abusive and violent behavior, if true, might lend substantial credibility to the Petitioner's claim that the Respondent is not a suitable custodial parent of the children, that issue is not before the Court. To the extent these allegations can be proven, they are more appropriate considerations for the court that ultimately decides the custody dispute between the Petitioner and the Respondent.
In February 2010, after several months of increasing discord, the Respondent moved out of the family home in Chapala and established a separate residence from his family, leaving the children in the Petitioner's custody. The Petitioner filed for divorce in Mexico in May or June 2010, but she has not served the Respondent with process in that action.
In July 2010, the Respondent left Mexico and returned to the United States. Once back in the United States, the Respondent began planning to take the children from the Petitioner and to bring them to the United States. Ironically, and notwithstanding the domestic violence during the Respondent's first marriage, his first wife, Kristi Peterson, assisted in his planning.
While the Respondent was away, the Petitioner assumed sole caretaker duties of the children, enrolling them at Instituto Terranova, a private Jesuit-run school in the Chapala area, and providing for their day-to-day care.
On September 24, 2010, by his own admission, the Respondent returned to Mexico and broke into the Petitioner's home, apparently looking for the children's passports so that he could "legally" take them
On September 27, 2010, the Petitioner and Respondent appeared before Lie. Sergio Gutierrez Tejada, Deputy of the Municipal Judge and Acting Head of Functions of the Municipal Court, in an attempt to reach a resolution concerning custody of the children. Pursuant to a Written Declaration (the "Declaration") issued by the Municipal Court, the Respondent was permitted to spend Saturday, October 2, 2010, with the children, but was under strict orders to return the children to the Petitioner no later than 10:00 p.m. that night. However, the Respondent, again by his own admission, had no intention of returning the children to the Petitioner. Rather, in accordance with his plan, he took the children and fled to the United States. In a Houston County, Georgia, Juvenile Court hearing held November 17, 2010, when asked whether he "had every intention of disobeying that Judge's order?" and whether he "knew when [he] went in that [he] wasn't going to listen to this judge?," the Respondent replied, "Absolutely."
Late on the night of October 2, 2010, the Respondent crossed the border back into the United States. In his testimony before this Court, the Respondent claims he crossed into the United States "legally" by producing certain documents to Mexican authorities.
The Respondent drove the children in a two-door Pontiac Grand Prix from Chapala, Mexico, to Houston County, Georgia, over the course of three grueling days and
As a part of the scheme, the Respondent's former wife, Kristi Peterson, arranged for her doctor, Dr. Thomas Williamson, who is an adult internist, to examine the children late in the evening of October 5, 2010, when they finally arrived in Houston County. The Respondent frankly admitted the reason he took the children to Dr. Williamson: "I knew this would be coming and I knew that I would need that documentation so immediately full check-ups for all the kids." Id. When asked if the children, other than C.D.P., had "any health issues that required you to see them on short notice," Dr. Williamson said no, they "all seemed fairly healthy, other than the weight issue."
To buttress his claim that the children were in very poor health and suffered from "long-term starvation," as the Respondent testified in juvenile court, Id. at 59, the Respondent obtained from Dr. Williamson a letter which, on its face, appears to confirm that the children had been neglected and were malnourished in Mexico. The letter states, "outward signs of neglect were present. All the children were below average in height and weight for their respective age and sex... These measures would be consistent with malnutrition." 11 Exhibit P-13.
For C.D.P. in particular, the letter expresses Dr. Williamson's "major concern." The Respondent told Dr. Williamson that C.D.P. had a seizure disorder and he was taking Dilantin, an anti-seizure medication. However, the Respondent told Dr. Williamson that C.D.P. had never had an EEG to determine the cause and nature of his seizure activity. In the letter, Dr. Williamson states that he "was initially concerned about this particular medication being used for the type of seizure [C.D.P.] was diagnosed with—Petit-Mal. I have become more concerned since I have found him to [have] markedly elevated liver enzymes and, from what I understand, he never had an EEG to document and confirm seizure activity. The medication has been discontinued and he has had no reported seizure activity." Dr. Williamson also expresses concern about C.D.P.'s abnormal gait for which "he has never evaluated or treated. ..." Id.
Armed with this letter, the Respondent would paint a dire picture in Juvenile Court. The children had been neglected, they were malnourished, and, in the case of C.D.P., medical treatment had been denied. None of this was true. Indeed, the manipulation of the medical evidence in this matter in the Juvenile Court proceedings greatly concerns the Court.
Other than C.D.P., the medical evidence concerning the children is straightforward and benign. T.L.P., age eight years, weighed 59 pounds on October 5, 2010, and 61 pounds on November 22, 2010. The October 5, 2010, office note for T.L.P. reflects no significant health concerns. As Dr. Williamson, testified in this Court, T.D.P. "was in pretty good shape." He did not "diagnose and determine that she had any particular ailment in need of immediate care, other than just nutrition."
R.T.P., age five years, weighed 40 pounds on October 5, 2010, and 42 pounds on November 22, 2010. When asked whether he had observed anything "about his condition which indicated any immediate need for medical," Dr. Williamson stated, "no, the child had no complaints, active, alert, appropriate for his age. Again, he, along with the other children gained a little weight and went up a couple of pounds between the visits."
S.A.P., the youngest child, weighed 33.5 pounds on October 5, 2010. On November
Thus, with regard to T.L.P., R.T.P., and S.A.P., and notwithstanding the ordeal of their flight from Mexico (which Dr. Williamson admitted had them all "pretty tired out"), Dr. Williamson could testify to no objective or subjective finding indicating any cause for concern other than weight slightly below the 50th percentile for children of their ages. Even for this "finding," however, Dr. Williamson admitted that he had no maternal information and that the stature and weight of a parent can have an impact on a particular child s normal height and weight. When Dr. Williamson first saw the Petitioner during his testimony in this Court, he acknowledged that the Petitioner is very petite. Indeed, the Petitioner is no more than five feet two inches tall and weighs approximately ninety pounds. With regard to the children's weight gain, in a comment that might have been intended to be lighthearted but which nevertheless is instructive, Dr. Williamson acknowledged that the children's weight gain may be due to "our fast food diet, I'm not sure."
There is nothing light-hearted about what happened to C.D.P. when he was seen by Dr. Williamson. First, his statements that C.D.P. had never had an EEG and had never been treated or evaluated for his foot condition were both false, although Dr. Williamson did not know they were false when he provided the letter the Respondent would use in Juvenile Court. The Respondent told Dr. Williamson that C.D.P. had never had an EEG even though the Respondent was present when a July 10, 2010, EEG was performed in Mexico. In this Court, after the truth came to light, the Respondent testified that he had "forgotten that we had got the EEG." The Respondent told Dr. Williamson that C.D.P. was taking Dilantin even though in his Juvenile Court testimony the Respondent said he did not know what medication C.D.P. was taking. Exhibit R-6A, p. 8. It appears, incredibly, that the basis for the Respondent's representation to Dr. Williamson that C.D.P. was taking Dilantin was a conversation the Respondent had with his sister, Kelly Gustafson. Ms. Gustafson, who is a certified nursing assistant, talked with a fellow employee who told her that Dilantin was the proper medication for petit-mal seizures. Based on nothing but this second-hand, non-expert opinion, Dr. Williamson wrote a prescription for Dilantin on the evening of October 5, 2010. In fact, C.D.P.'s Mexican physician had prescribed a different medication, Depekane, which is appropriate for petit-mal or absence seizures.
Whether because of incorrect dosage or incorrect administration, C.D.P. developed Dilantin toxicity. Fortunately, a school nurse became concerned by C.D.P.'s behavior and sounded the alarm. An October 25, 2010, Dilantin screening revealed a value of 37.6 ug/ml. Dr. Williamson acknowledged that the upper limit of normal is 20 ug/ml. One consequence of Dilantin toxicity is liver injury and, as Dr. Williamson noted in the letter used in Juvenile Court, the October 25, 2010, laboratory tests also revealed "markedly elevated liver enzymes." What Dr. Williamson's letter does not make clear is that he was the physician who prescribed the Dilantin that caused the Dilantin toxicity. Recognizing the significance of the elevated liver enzymes, Dr. Williamson discontinued the
With regard to the club foot, Dr. Williamson did not believe that condition posed any immediate problem. Rather, his point was that it should have been evaluated earlier. Again, Dr. Williamson had been provided with false information; C.D.P. had been evaluated for this condition, including an evaluation by a Perry, Georgia, pediatrician several years earlier.
In short, Dr. Williamson admitted that none of the children, including C.D.P., had any type of "grave health risks" when he examined them. Dr. Williamson expressed no opinion in this Court that the children were, within any degree of probability, malnourished or neglected while in Mexico. Even if he had, it is unlikely that such testimony, even from a qualified expert, would be sufficiently reliable to be admissible, given the false information provided to the doctor, the lack of information regarding family history and conditions in Mexico, and the fact that the children, when he saw them late on October 5, 2010, had been through a grueling three-day odyssey. On the contrary, his testimony in this Court, if anything, suggests that the children were remarkably fit when he first saw them.
The conclusion that the Respondent manipulated the medical evidence in Juvenile Court is buttressed by the testimony of the Respondent's own physician, Dr. Gilbert Silverman.
On October 13, 2010, the Respondent initiated a deprivation action in the Juvenile Court of Houston County, alleging (a) that the Petitioner's affiliation with TFI is harmful to the children, and (b) that, while in the Petitioner's care, the children had fallen into a state of malnutrition and had not received proper medical care. The Juvenile Court verbally pronounced that the Children were to remain in the care of the Respondent until the matter could be fully resolved. In the meantime, on November 30, 2010, the Petitioner, in accordance
By all independent accounts, and with the exception of C.D.P.'s experience, the children appear to be well-cared for in the custody of either parent and are in good health and spirits. Shortly after returning to Houston County, the Respondent contacted Houston County DFCS and requested an investigation, something that DFCS investigator Wendy Chadwell found "unusual." Exhibit R-6A, p. 64. Nevertheless, she conducted an investigation and found no evidence of neglect or malnourishment. The children told Ms. Chadwell "they liked [Mexico], that they had been in school there and that they liked it." Id. at 69. They said they loved their father, but they loved their mother as well, and they missed her.
The Court appointed Roxanne Hinson, an experienced domestic relations attorney, to be the Court's representative tasked with interviewing the children. See Doc. 15. Ms. Hinson met with all four children on December 15, 2010. Ms. Hinson testified that the children all appeared very comfortable meeting with her, and, over the course of the nearly two hour long meeting, the children discussed many aspects of their lives both here in the United States and in Mexico. The children appear to enjoy their schools in both locations equally, and each child named to Ms. Hinson at least one best friend that he or she has at school in each country. The children expressed their love for each parent and their grandparents in Mexico. The children were all very affectionate and loving during their visit with Ms. Hinson. In short, Ms. Hinson noted no signs of neglect, malnutrition, or physical abuse relating to their home life in Mexico or in the United States since their return.
There is no basis for concluding that the children were subjected to any inappropriate conduct or influence in Mexico. On the contrary, the children clearly enjoyed a happy, safe home life in Mexico, except, of course, when their parents fought. Indeed, C.D.P. was the only child ever placed at risk, and the Respondent and Dr. Williamson are primarily responsible for that incident.
There are two final twists in this unfortunate affair. First, as noted, the Petitioner tendered evidence of the Respondent's violent acts during his prior marriage to Kristi Peterson. Ms. Peterson, identifying herself as the Respondent's former wife, contacted one of the Court's law clerks prior to the first evidentiary hearing in this matter to offer information about the
The second development concerns both Ms. Peterson and Dr. Williamson. On December 30, 2010, Dr. Williamson called the Clerk's Office and informed a deputy clerk that he believed the Respondent had poisoned C.D.P. and, according to the deputy clerk's understanding, had possibly poisoned one of his daughters. Because of the nature of this allegation, the Court called Dr. Williamson late in the evening of December 30 and, after talking with Dr. Williamson, convened a telephone conference on December 31 to disclose to the parties Dr. Williamson's allegations. At the Court's request, William Sammons, Houston County DFCS's attorney, and Ms. Chadwell participated in this conference. Dr. Williamson claimed that he had been reviewing C.D.P.'s laboratory test results and, because the Dilantin level became elevated so quickly, he concluded there was a strong possibility that this had been an intentional overdose. Dr. Williamson also revealed that he suspected the Respondent had attempted to poison Kristi Peterson. (Apparently, the deputy clerk mistakenly understood Dr. Williamson to be referring to one of the Respondent's daughters.) Dr. Williamson claimed that the Respondent had "lied" to him. Dr. Williamson said that he repeatedly asked the Respondent whether C.D.P. had an EEG or whether he had any "work up" for seizures and, according to Dr. Williamson, the Respondent repeatedly said C.D.P. had not had an EEG or any work up. Dr. Williamson said that he felt he had been "suckered" into helping the Respondent. In sum, Dr. Williamson claimed to have significant concerns about the children's safety while in Respondent's custody. Based on this information, Ms. Chadwell felt it necessary to initiate an investigation. Also, the Court ordered that the children, until further notice, would remain in the Petitioner's custody.
As mentioned, an action under the Convention is not an action to determine custody. Whallon v. Lynn, 230 F.3d 450, 455 (1st Cir.2000). The sole issue is whether a child has been wrongfully removed from his or her habitual residence. Id. The goal of the Convention is to ensure that the custody of a child should be determined in accordance with the laws in, and should be decided by the appropriate authority in, the nation in which the child habitually resides. The Convention's purpose, therefore, is "to prevent parents from abducting children in order to avoid the jurisdiction of courts with whose rulings they do not (or believe they will not) agree." Shealy v. Shealy, 295 F.3d 1117, 1121 (10th Cir.2002). "The treaty and legislation seek to `preserve the status quo and to deter parents from crossing international boundaries in search of a more sympathetic court.'" Id. (quoting Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir.1993)).
Whallon, 230 F.3d at 455-56 (quoting Explanatory Report, ¶ 71, at 447-48).
According to the Convention, the removal of a child from one country to another is "wrongful" if:
Hague Convention, art. 3. If the Court determines that the removal was wrongful, and that no exception applies,
To make out a prima facie case of wrongful removal, the Petitioner must show, by a preponderance of the evidence, that "(1) the child was habitually resident in a given state at the time of the removal or retention; (2) the removal or retention was in breach of petitioner's custody rights under the laws of that state; (3) petitioner was exercising those rights at the time of removal or retention." Shealy, 295 F.3d at 1122. If the Petitioner can make this showing, then the children "are to be promptly returned unless one of the narrow exceptions set forth in the convention applies." 42 U.S.C. § 11601(a)(4).
The Petitioner first must show that the children were habitually resident in Mexico
First, the Court must determine "[w]hether there [was] a settled intention to abandon a prior habitual residence...." Ruiz v. Tenorio, 392 F.3d 1247, 1252-53 (11th Cir.2004). "It is not necessary to have this settled intention at the time of departure, as it could develop during the course of a stay originally intended to be temporary." Id. at 1252. Additionally, in a case such as this one, where both parents are "entitled to fix the place of the child[ren]'s residence," the Court must consider the intention of both of the parents. Id. at 1253.
The Court is satisfied that the parties intended to abandon their Houston County residence. They either traveled to Mexico intending to stay for a brief period and, within a few months at the most, decided to abandon their Houston County residence, or they traveled to Mexico already intending to abandon their Houston County residence. The fact that the parties sold their house in Houston County and took up residence in Mexico in their own dwelling (rather than living with the Petitioner's parents or in a hotel) suggests that, even initially, they intended to abandon their Houston County residence. Whether or not this is the case, it is clear to the Court that at the very least they abandoned their Houston County residence once in Mexico. They seldom, if ever, returned to the United States. They enrolled their children in school when they reached the appropriate age. They established legal, temporary residency in Mexico and intended to become Mexican citizens. Their fourth child was born and raised in Mexico and had never been to the United States prior to her recent removal from Mexico. Moreover, Wendy Chadwell, the investigator for the Houston County Department of Family and Children Services, stated that, based on her investigation, it was clear that the Petersons intended to stay in Mexico.
The only evidence the Respondent cites to dispute that the habitual residence of the children was in Mexico is the fact that the Petitioner maintains a mailing address in Georgia. The Petitioner testified, though, that prior to this action she has only been back to the United States once since leaving in 2006, and that she maintained that mailing address for correspondence because she lacked complete confidence in the Mexican postal service. It is common, according to the Plaintiff, for "expats" to maintain a United States address. There is no evidence that the Petitioner ever resided at the United States address for any appreciable period of time, or that the Petitioner maintained that mailing address because she intended to retain her prior habitual residence. The evidence is clear, therefore, that the Petersons intended to abandon their previous habitual residence in the United States.
Having determined that the Petersons intended to abandon their previous habitual residence in the United States, the Court next must determine if there was "an actual change in geography and the passage of a sufficient length of time for the child[ren] to have become acclimatized." Id. at 1253. This question is easily answered. The Peterson family had lived in Mexico for four years and seldom traveled back to the United States. As noted, the youngest child was born in Mexico
Because both the Petitioner and the Respondent intended to abandon their previous habitual residence in the United States, and because there was an actual geographical change and the passage of sufficient time for the children to have become acclimatized, the habitual residence of the Peterson children is in the state of Jalisco, Mexico.
The Petitioner next must prove that the Respondent's removal of the children to the United States was in breach of her custody rights under the laws of Mexico. The Convention distinguishes rights of custody from rights of access. A return order can only issue if the removal violated the Petitioner's rights of custody.
According to the Convention, rights of custody "shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence." Hague Convention, art. 5(a). Rights of access, on the other hand, include "the right to take a child for a limited period of time to a place other than the child's habitual residence." Id., art. 5(b). Because rights of custody are rather loosely defined, courts generally look at the background report of the Convention for guidance. Whallon, 230 F.3d at 455.
Whallon, 230 F.3d at 455 (internal citations omitted).
The applicable law here is the Civil Code for the State of Jalisco, Mexico (the "Civil Code").
Article 580.
The issue, therefore, is whether the rights conferred on the Petitioner by the doctrine of patria potestas are rights of custody or rights of access. The Eleventh Circuit has yet to address this specific issue, but the First Circuit has in Whallon v. Lynn, 230 F.3d 450 (1st Cir.2000). In discussing the doctrine of patria potestas in general, and as applied by the Baja California Sur Civil Code in particular, the First Circuit concluded that rights conferred on a parent by patria potestas are rights of custody rather than mere rights of access. Whallon, 230 F.3d at 458. As in Whallon, here, patria potestas rights are rights of custody. The purpose of the doctrine "is the custody of the minors themselves as well as their assets and it is intended to protect them." Article 578. Moreover, the Petitioner's patria potestas rights have not ceased, nor have they been terminated or suspended. Thus, when the Respondent removed the children without the Petitioner's consent, he violated the Petitioner's rights of custody.
The Petitioner next must show an actual exercise of her rights of custody. However, this element has been considerably weakened by the courts that have considered it. Motivated by myriad concerns, the courts "liberally find exercise whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child." Bader v. Kramer, 484 F.3d 666, 671 (4th Cir.2007) (internal quotations omitted).
There is no evidence that the Petitioner abandoned her children. On the contrary, the children lived with the Petitioner prior to and after the parties separated. The children remained with the Petitioner when the Respondent returned to the United States. The Petitioner provided nourishment and medical attention for her children. All of the evidence establishes beyond dispute that the Petitioner clearly exercised her rights of custody; and certainly there is no evidence that she unequivocally abandoned her children.
Having determined that the Petitioner has made out a prima facie case of wrongful removal, the Court must next determine whether any of the exceptions apply. Of the exceptions provided by the Convention, only the exception in Article 13(b) could possibly apply under these facts. Article 13(b) states that the Court "is not bound to order the return of the child[ren] if... there is a grave risk that [their] return would expose the child[ren] to physical or psychological harm or otherwise place the child[ren] in an intolerable situation."
This "narrow" exception is a difficult one to prove. Whallon v. Lynn, 230 F.3d 450, 459 (1st Cir.2000). As an initial matter, the Respondent must prove the exception by clear and convincing evidence, rather than the preponderance of the evidence burden placed on the Petitioner. 42 U.S.C. § 11603(e)(2)(A). This reflects the Convention's strong preference that custody issues be resolved in the country of habitual residence. Moreover:
Whallon, 230 F.3d at 459 (internal citations omitted). Most importantly, perhaps, "[c]ourts are not to engage in a custody determination or to address such questions as who would be the better parent in the long run." Id.
The Respondent's arguments with regard to this exception are: (1) that the children were malnourished while in the Petitioner's care, and that the Petitioner did not provide adequate medical care for the children; and (2) that the sexual practices of TFI, and the Petitioner's and her family's involvement in TFI, put the children at risk of improper contact or influence. The Court will address each argument in turn.
First, however, it is appropriate to note the observations of the DFCS investigator and the Court's appointed representative, Roxanne Hinson. Both are independent and both have considerable relevant experience, Ms. Chadwell in matters of alleged child abuse, and Ms. Hinson in both allegations of child abuse and child custody disputes. Based on their observations and discussions with the children, there is no basis to conclude that the children were neglected or mistreated in Mexico. Neither is there any independent evidence that the children are afraid to return to Mexico. On the contrary, they appear to look forward to seeing their family in Mexico, and, for example, jumping into their grandfather's pool. Of course, there is
Nevertheless, the Respondent contends, or at least contended before Dr. Williamson's change of heart, that medical evidence establishes that all of the children were in a state of malnutrition and that one of the children, C.D.P., was not receiving proper treatment for his various medical conditions. Given the detailed discussion of the medical evidence above, extended comment here is not necessary. Despite the Respondent's efforts to marshal the medical evidence to his liking, there is no credible evidence that the children were at grave risk in Mexico and no evidence, credible or otherwise, that medically they would be at grave risk if they returned.
Next, the Respondent claims that, if the Court were to order the children's return to Mexico, they would be put at grave risk of physical or psychological harm as a result of the Petitioner's and her family's close affiliation with TFI. As noted above, rumors and allegations of several radical beliefs and practices have plagued TFI since its inception. However, for the purposes of this action, there is simply no credible evidence that the Peterson children were or would ever be subjected to any threats of improper contact or influence as a result of living with or in close proximity to those members of the Petitioner's family that are active members of TFI. That is not to say that the general and somewhat dated information about TFI adduced in this Court merits no attention. However, those concerns should be raised in the court that decides the custody dispute between the Petitioner and Respondent.
In short, the Respondent has failed to show by any standard, let alone a clear and convincing standard, that there is a grave risk that the children's return to Mexico would expose them to physical or psychological harm or otherwise place the children in an intolerable situation. Accordingly, the Respondent's affirmative defense must fail.
For the foregoing reasons, the Court rules that the Respondent's removal of the children from the care of their mother in Mexico was wrongful under the Convention, Article 3. Therefore, the Convention requires that this Court order the return of the children forthwith, (Article 12), and ICARA requires this Court "[to] order the respondent to pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, foster home or other care during the course of the proceedings in the action, and transportation costs related to the return of the child, unless the respondent establishes that such order would be clearly inappropriate." 42 U.S.C. § 11607.
Accordingly, it is hereby
This Order is stayed until Monday, January 24, 2011, for two reasons. First, if the Respondent elects to appeal this Order, he should be allowed time to obtain a stay from the Eleventh Circuit Court of Appeals. Second, and although the Respondent has failed to demonstrate that the children will be subject to grave risk if they return to Mexico, the Court has established, through the respective Central Authorities of Mexico and the United States, contact with the Hague Convention "network judge" in Mexico, Judge Dionisio Nunez Verdin, who happens to be a family law judge in Guadalajara. This Order may be supplemented to ensure that the appropriate Mexican authority becomes involved in this matter. The Respondent's alleged concerns regarding TFI will be addressed in the appropriate forum and by the proper authorities.
