MARK A. GOLDSMITH, United States District Judge.
On May 17, 2016, this Court issued a decision granting in part Petitioner Steven Neumann's petition for return of children pursuant to the Hague Convention and the International Child Abduction Remedies Act ("ICARA"), 22 U.S.C. § 9001,
The four traditional stay factors guide the Court's analysis: "(1) whether the stay applicant has made a strong showing that [s]he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies."
Julie posits that she is likely to succeed on two issues: (i) whether Mexico was the children's country of habitual residence; and (ii) whether there is a grave risk that returning the children to Mexico would expose them to physical or psychological harm. Resp't Mot. at 9. To meet the "strong showing" standard, "[i]t is not enough that the chance of success on the merits be `better than negligible.'"
As part of the prima facie case for wrongful removal, Steven needed to prove by a preponderance of the evidence that Mexico was the children's country of habitual residence.
Julie asserts that the children perceived their time in Mexico as a transient, time-bound
To be sure, the children's residence in Atizapán de Zaragoza, Mexico, a suburb of Mexico City, was prompted by Steven's work assignment with Ford Motor Company, but Julie conflates the notion of non-permanence with that of transience. A "degree of settled purpose" does not require that the residence be "permanent."
That some of the children's connections were not specifically with native-born Mexicans does not persuade the Court otherwise. For instance, the fact that the children's friends were of a variety of nationalities or that they received their instruction in English fails to demonstrate that the children were not comfortably settled in their home in Mexico, such that their situation had failed to stabilize or normalize.
That the children were aware that their time in Mexico might come to an end when the current term of Steven's contract is set to expire in 2017 — a contract that had been previously renewed in 2014 and might be again — does not somehow diminish that the Neumann family, including the children, built and experienced their day-to-day lives there. For almost four years, Mexico was the place where the children went to school, played with friends, and spent time together as a family. The Court would be hard-pressed to conclude that this amount of time was insufficient for the children to become settled in their physical environment. Indeed, as MKN expressed in his interview with the Court, Steven's actions prompting the children's relocation "had changed his life forever," causing
The cases on which Julie relies for support for her argument either apply the "parental intent" standard — rejected by the Sixth Circuit,
Accordingly, the Court concludes that Julie has not established a likelihood of prevailing on appeal as to whether Steven proved Mexico was more likely than not the children's country of habitual residence.
In contrast to the "preponderance of evidence" burden imposed on Steven to demonstrate a wrongful removal, the standard for Julie to establish a "grave risk" defense under the Convention is a heightened one, requiring clear and convincing evidence.
Julie contends for the first time that Steven's alcoholism has "led to a repeated pattern of domestic abuse — both physically and psychologically."
Julie also asserts that Steven "habitually push[ed] and shov[ed her] as a form of
Thus, the concrete instances of domestic violence against Julie during the course of a marriage that lasted almost two decades consist of two discrete events — the December 26, 2014 incident and the 2003 Thanksgiving incident when Steven struck Julie while she was driving — and the belly-bumping conduct of uncertain frequency and severity. While any incident of domestic violence is unacceptable, the record does not bear out Julie's characterization of a "repeated pattern" of domestic violence.
Moreover, the abuse of Julie, while certainly distressing, is relevant under the Hague Convention only insofar as it affects the children. See 5/17/2016 Op. & Order at 24 (citing
Julie also characterizes the children as being "in the immediate zone of danger created by Mr. Neumann's rage" on December 26, 2014, Resp't Mot. at 16, but, as the Court previously noted, the record reveals that, despite the children's intervention, Steven did not turn his aggression upon them, 5/17/2016 Op. & Order at 21. And as the Court explained in its May 17 decision, because Julie and Steven are estranged — and now divorced by a Mexican court — even upon JSN and MKN's return to Mexico, the risk that the children would be exposed to any future abuse is remote.
Similarly, the evidence fails to substantiate Julie's assertions regarding the alleged repeated pattern of direct abuse against the children. For the first time in her motion, Julie asserts that Steven "habitually" slapped JSN in the head for no reason. Resp't Mot. at 15. Although Julie had not raised the issue before, the Court did address the issue of slapping in its decision, noting that JSN mentioned the head-slapping to Dr. Haynes, who then reported that JSN had stated that the slapping was sometimes done when Steven was "horsing around" and sometimes when he was angry.
As for the psychological and mental abuse of the children, Julie relies on statements from the children to Dr. Haynes that, as the Court previously concluded, are indicative of some limited emotional and/or verbal abuse of uncertain intensity, frequency, and purpose. 5/17/2016 Op. & Order at 21-22. The evidence cited by Julie indicates that Steven did yell at or swear at the children, at times while intoxicated, and that in the children's view such yelling was unwarranted.
Importantly, and as explained in detail in the May 17 decision, neither JSN nor MKN, in their separate interviews with the Court, expressed or communicated a concern about a return to Mexico that raised the specter of physical or psychological harm, let alone of a significant nature. 5/17/2016 Op. & Order at 14. In fact, while both expressed a fierce desire to stay in Michigan and unhappiness with their father, neither boy expressed a specific fear of their father or identified specific concerns about being with him.
Nor did Dr. Haynes assert that a return to Mexico posed a "grave risk" of physical or psychological harm. Rather, he opined that "there are multiple significant risks of different kinds.... affect[ing] each of the parties and the children in different ways." Haynes Report at 50. He noted risks of bad behavior associated with Steven's alcoholism, but those risks exist regardless of the location of the children. The mere fact that the children will be in the same country as their father does not mean that they are more likely to be harmed — especially because Steven's interactions with them will be monitored and managed by the court making custody and visitation decisions. Dr. Haynes also cited stress associated with divorce generally, and especially if there is parental cohabitation.
The one specific risk raised was "feelings of apprehension regarding reunification with their father."
Dr. Haynes recognized the children's turbulent and contradictory emotions: they expressed concerns about reunification with their father, and yet they "want to improve and expand their relationship" with him. Haynes Suppl. Report at 3. This mix of emotions does not, without more, translate into a grave risk of exposure to psychological harm.
Julie marshals other facts to support her theory that Steven generally is a destructive and dangerous individual. For instance, she recalls two drunk-driving charges, an arrest for assault of a police officer, and a single road-rage incident that took place in Mexico. Resp't Mot. at 5, 6, 15. However, the legal charges stem from incidents that took place between 1991 and 1994, well before the Neumanns were even married. Haynes Report at 17. And those incidents are unconnected to the allegations of abuse at issue here. Notably, Julie and Steven were in agreement that Steven did not generally drink and drive,
With regard to the 1993 assault, there is absolutely no information as to the circumstances surrounding that incident (including whether alcohol was involved); therefore, the Court declines to draw any type of conclusion from it, particularly considering it occurred over 20 years ago and was ultimately expunged.
The road-rage incident — where another driver and Steven alternately passed each other while on a highway — reflects irresponsible behavior, but, even by Julie's account, Steven exited the situation when it posed a significant level of risk to the family.
Julie also refers to Dr. Haynes's observation that Steven "endorsed a number of extreme and bizarre thoughts which raises the question of the possibility of delusions or hallucinations." Haynes Report at 20; Resp't Mot. at 15. But she has not pointed to specific instances where this has occurred or how it has affected the children in the past.
Finally, Julie's motion contends that "the Children have been diagnosed by two independent psychiatrists as suffering from post-traumatic stress disorder ["PTSD"]," arising out of the December 26, 2014 events. Resp't Mot. at 7, 9, 17. At the stay hearing, Julie's counsel opined that returning JSN and MKN to Mexico would trigger such PTSD, causing them grave psychological harm. Not only is this a new argument, but on the current record these statements are both false and misleading.
First, while several mental health professionals have been involved in this dispute, none of them is a psychiatrist. Julie's contention about that is simply wrong.
By contrast, Chuck Snyder's views are documented. He wrote a letter to Julie's lawyer stating that the children were "report[ing] symptoms consistent with [PTSD]," Snyder Report, Resp't Ex. J, at 200002, and he set out a similar opinion at his deposition, Snyder Dep., Resp't Ex. O.
The only credible opinion about PTSD was that of Ph.D. psychologist Dr. Haynes, the independent expert appointed by the Court in this case. He evaluated the children in July 2015 — several months after Chuck Snyder had. While Dr. Haynes stated that Chuck Snyder's PTSD diagnosis "at the time may have been accurate,"
Third, no mental health professional has opined to this Court that returning the
Taken together, the evidence offered by Julie paints a portrait of Steven as an individual with significant mental health issues. But most of the complaints Julie makes against Steven speak to his general character and his fitness as a parent — all relevant considerations for the question of custody, which looks to the children's best interests and other factors relevant to determining appropriate arrangements for rebuilding relationships fractured by divorce. That task, however, is not the province of this Court. Rather, this Court's task is limited to determining whether Julie has presented clear and convincing evidence that a return to
This Court's conclusion that she failed to do so does not somehow render that burden insurmountable, as she claims. Julie may take issue with the law as established under the Hague Convention, but it is not the district court's prerogative to bend that law to accommodate the sympathetic facts of her case. Because the Court concludes that the relief Julie seeks cannot be justified on the record she has developed and the law as it has developed, she is not likely to succeed on appeal.
For those reasons, this first factor does not counsel in favor of a stay.
Julie argues that returning the children to Mexico will necessarily require her to return as well, causing her irreparable harm in three ways: (i) Julie's presence in Mexico will place her at "inordinate risk" of abuse from Steven; (ii) Julie faces the threat of criminal prosecution upon her return to Mexico; and (iii) Julie will suffer a derivative irreparable injury resulting from the children being removed from the place they have been living for approximately a year and a half. Resp't Mot. at 18-19. While not unsympathetic to the hardships a return to Mexico will cause Julie, the Court disagrees that these claimed injuries are irreparable.
First, the Court has not been presented with any evidence that the threat posed to Julie by Steven is any greater in Mexico than in Michigan. The Court has received testimony that Mexican authorities take seriously domestic violence. Redacted Tr. Vol. 1 116:17-120:7. In fact, Julie testified that when seeking treatment for her injuries in Mexico, she did not tell the Mexican doctors the actual source of the injuries because she "knew" that "they would go and arrest [her] husband and he would be thrown into a Mexican prison and [she] didn't think that was a good idea." Redacted
Second, the record is far from clear that Steven has threatened to press criminal charges against Julie. Steven's comment that he should have filed charges against Julie for the December 26 incident was a stray remark to Dr. Haynes during Steven's evaluation, triggered by the discussion of the personal protection order that Julie had obtained against him; there did not appear to be any concrete plan by Steven to file a criminal complaint for assault.
In any event, being called to answer criminal charges in another country is not an irreparable injury in and of itself. There has been no indication that the courts of Mexico are incapable of fairly adjudicating any charges filed. The Hague Convention itself is premised on the trust courts place in their foreign counterparts to apply the law fairly relative to children who are the subject of a Hague case. It would be inconsistent to presume otherwise when courts apply their criminal law to parents accused of criminal wrongdoing.
Third, courts have made clear that parents who abscond with their children cannot then reap the benefit of pointing to inconvenience or disappointment that may result from repatriating children from the country to which they had grown accustomed following the wrongful removal.
At oral argument, Julie's attorney made a number of additional arguments, not presented in Julie's motion, which the Court pauses briefly to address. Among those arguments was a concern that Steven would not return the children to Michigan should Julie prevail on appeal, on the theory that Mexico has been found by the State Department to be a country that does not return children. Significantly, there has been no evidence presented to the Court substantiating this. Regardless, the Court does not believe this is a legitimate issue. Steven, like Julie, is a U.S. citizen subject to the jurisdiction of this Court and other U.S. authorities, and he works for a U.S. employer. Should Steven be disinclined to comply with any order to return the children to Michigan, the Court has resources at its disposal to enforce any such order, including contempt fines or other sanctions that could be collected through Ford Motor Company, Steven's employer.
Counsel also posited that return to Mexico, the site of the December 26, 2014
Accordingly, this factor weighs against a stay.
Julie asserts that given the expedited nature of the appeal process for Hague cases, a stay will not appreciably add to the amount of time the children have already been away from Mexico, and Steven's desire to have them return sooner rather than later is minimal in comparison to the harm she faces upon return. Resp't Mot. at 20. The Court agrees that a minimal delay will not substantially prejudice Steven. However, the Court has already allowed for this minimal delay, by adjourning the return date from June 30 to July 27, thereby allowing the instant motion to be fully adjudicated and to permit the Sixth Circuit an opportunity to meaningfully consider an emergency motion for a stay should Julie's counsel file one. There is no justification for an extended stay pending exhaustion of the appellate process.
Finally, Julie posits two public interest concerns that she claims favor a stay: (i) ensuring that a full and proper adjudication of the issues on appeal is not undermined or compromised by a "hasty return"; and (ii) the issue of domestic violence and how it should be treated under the Convention. Resp't Mot. at 20.
First, Julie's motion does not explain how the children's return could somehow undermine or compromise appellate review of this matter. The Court perceives no reason why the Sixth Circuit cannot fully adjudicate the relevant issues, even if the children are in Mexico.
Second, it is undoubtedly true that there is a public interest in preventing domestic violence and protecting its victims — direct and indirect. However, this interest is taken
The public interest does not weigh in favor of a stay pending appeal.
For the reasons stated above, Respondent Julie Neumann's motion to stay (Dkt. 67) is denied.
SO ORDERED.
The remainder of the delay in this case is also not attributable to Steven and cannot be used against him. Several months were consumed while the parties explored settlement, at the Court's urging. An additional block of time was consumed by Dr. Haynes's evaluation of the five members of the Neumann family, an undertaking that both parties urged the Court to adopt. Preparation for, and conduct of, the nearly week-long evidentiary hearing also consumed considerable time. Then post-hearing briefing was delayed because of the medical condition of one of the attorneys. None of these circumstances can fairly be used to argue that further delay will not prejudice Steven.
