Souratgar v. Lee, No. 12-5088 (2d Cir. 2013)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on June 13, 2013.
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12-5088 Souratgar v. Lee 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term 2012 4 (Argued: March 13, 2013 Decided: June 13, 2013) 5 6 Docket No. 12-5088 ----------------------------------------x 7 ABDOLLAH NAGHASH SOURATGAR, 8 Petitioner-Appellee, -- v. -- 9 10 11 LEE JEN FAIR, Respondent-Appellant. 12 -----------------------------------------x 13 14 15 B e f o r e : 16 York State in violation of a Singapore court order, Abdollah 17 Naghash Souratgar, the child s father and Lee s husband, filed a 18 petition under the Hague Convention on the Civil Aspects of 19 International Child Abduction for repatriation of the child to 20 Singapore. 21 District of New York (Castel, J.) granted the petition. 22 23 24 25 26 27 28 29 30 31 32 33 34 WALKER, WESLEY and DRONEY, Circuit Judges. After Lee Jen Fair removed her child from Singapore to New The United States District Court for the Southern AFFIRMED. ROBERT D. ARENSTEIN, Law Offices of Robert D. Arenstein, New York, NY for Petitioner-Appellee. RANDY M. MASTRO and Jane Kim, Gibson, Dunn & Crutcher LLP, New York, NY and Dorchen A. Leidholdt, Center for Battered Women s Legal Services, Sanctuary for Families, New York, NY for RespondentAppellant. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 JENNIFER BAUM, St. Vincent de Paul Legal Program, Inc., Child Advocacy Clinic, St. John s University School of Law, Jamaica, NY (Jenna M. DiCostanzo and Jennifer R. Kwapisz, St. John s University School of Law on the brief) for Amicus Curiae Guardian ad Litem. William C. Silverman, Greenberg Traurig, LLP, New York, NY for Amici Curiae Tahirih Justice Center, Asian Pacific American Legal Center, Ayuda, Battered Women s Justice Project, The Central American Resource Center, Greater Boston Legal Services, Immigration & Asylum Clinic of Boston College Law School, Immigration Justice Clinic, John Jay Legal Services, Inc., Inmotion, Inc., Kentucky Coalition for Immigrant and Refugee Rights, Legal Services NYC, National Immigrant Women s Advocacy Project, New York Asian Women s Center, Inc., Philadelphia Legal Assistance, Sexuality & Gender Law Clinic, and Columbia Law School. Joel Kurtzberg, Mary McCann, and Etienne Barg-Townsend, Cahill Gordon & Reindel LLP, New York, NY and Lynn Hecht Schafran and Elizabeth Grayer, Legal Momentum, New York, NY for Amici Curiae Legal Momentum, Domestic Violence Legal Empowerment Appeals Project, End Violence Against Women International, Iowa Coalition Against Sexual Assault, National Coalition Against Domestic Violence, National Network To End Domestic Violence, New Mexico Coalition of Sexual Assault Programs, Inc., the Pennsylvania Coalition Against Rape, and the Victim Rights Law Center. 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Michael R. Lazerwitz, Lewis J. Liman and Kiesha Minyard, Cleary Gottlieb Steen & Hamilton LLP, New York, NY (William F. Gorin, Abigail Fee and Shira A. Kaufman, Cleary Gottlieb Steen & Hamilton LLP, on the brief) for Amici Curiae Dean Jeffrey L. Edleson, Ph.D., Professor Evan Stark, Ph.D., Professor Michelle Madden Dempsey, Ph.D., Dr. Stephanie Brandt, The Child Advocacy Clinic at Columbia Law School, The University of Baltimore Family Law Clinic, and the University of Oregon Domestic Violence Clinic. JOHN M. WALKER, JR., Circuit Judge: 20 Lee Jen Fair appeals the grant of a petition brought by her 21 husband Abdollah Naghash Souratgar for repatriation of their son 22 from New York to Singapore. 23 Dutchess County, New York, in direct violation of a Singapore court 24 order. 25 of New York (Castel, Judge) granted Souratgar s petition pursuant 26 to the Hague Convention on the Civil Aspects of International Child 27 Abduction ( Convention ), Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 28 U.N.T.S. 89, and its implementing statute, the International Child 29 Abduction Remedies Act, 42 U.S.C. §§ 11601-10. 30 Jen Fair, No. 12 CV 7797 (PKC), 2012 WL 6700214 (S.D.N.Y. Dec. 26, 31 2012). In May 2012, Lee removed the boy to The United States District Court for the Southern District 32 3 Souratgar v. Lee The principal issue on appeal is whether Lee s affirmative 1 2 defenses to repatriation should have prevailed in the district 3 court. 4 and affirm its order of repatriation. We find the district court correctly applied the Convention 5 I. Background 6 The boy at the center of this case, now four-year-old Shayan, 7 was born in Singapore in January 2009 to Lee and Souratgar, who are 8 both residents of that country. 9 who has owned a business in Singapore since 1989. Souratgar is an Iranian national Lee is a 10 Malaysian national who worked as an airline attendant, saleswoman, 11 and retail manager in Singapore. 12 Souratgar s faith, just prior to their marriage in Singapore in 13 2007. 14 passports. 15 She converted to Islam, Shayan is a citizen of Malaysia with Malaysian and Iranian The parties marital relationship has been stormy. At the 16 district court hearing, they traded accusations and denials of 17 domestic abuse. 18 biting him, repeatedly threatening him with a knife and chopper, 19 having suicidal tendencies, and inflicting injuries on herself. 20 Lee asserted in her testimony more serious allegations that 21 Souratgar repeatedly slapped, beat, shook, and kicked her, and that 22 he forced her to perform sex acts against her will. 23 court carefully checked these assertions against the various police 24 reports, medical records, and legal papers entered into evidence Souratgar accused Lee, among other things, of 4 The district 1 and, while it could not verify the most severe claims of abuse and 2 found both parties testimony to be incredible in certain 3 instances, it did credit the accounts it could corroborate.1 4 district court found spousal abuse by Souratgar, including 5 shouting and offensive name-calling, and several incidents of 6 physical abuse in which he kicked, slapped, grabbed, and hit Lee.2 7 Souratgar, 2012 WL 6700214, at *11. The district court found no credible evidence of any harm 8 9 The directed against the child. Both parties, despite their 10 acrimonious contest over his custody, acknowledge the other s love 11 for Shayan, and it is not disputed that the boy dearly loves both 12 of his parents. 1 The district court s findings as to the charges and countercharges of domestic abuse by the parties are set forth in the district court s opinion. See Souratgar, 2012 WL 6700214, at *7-10, *11, *12 & *13. 2 The district court declined to credit Lee s charge that Souratgar compelled her to engage in certain sexual acts, noting that text messages she sent him indicated her willing participation. The text messages, however, were sent well before the acts had allegedly occurred, and it is of course possible for express or implied consent to sex to be withdrawn after it is given. Even if the text messages were sent close to (or even after) the alleged acts, that would not in itself indicate that Lee was a willing participant or ipso facto invalidate her testimony that she was forced to engage in sexual activity. The district court was entitled to make its own determination regarding the credibility of Lee s testimony, and nothing in the record indicates that its finding was erroneous. Any suggestion that a woman who indicates enthusiasm for a sexual relationship cannot later be taken advantage of in the context of that relationship, however, is mistaken, and we disclaim any indication that our holding today is based on Lee s text messages. Our concerns on this point do not affect our judgment that, viewed in their entirety, the district court s credibility assessments should not be disturbed. 5 1 The district court also found Souratgar and Lee to be 2 intelligent, sophisticated individuals who were able to make use of 3 legal proceedings in Singapore, Malaysia, and the United States. 4 In April 2011, when Shayan was two, Lee filed an ex parte 5 application in the Singapore High Court for sole custody. 6 cited concern that Souratgar would take Shayan from the country and 7 cut her off from the boy. 8 Singapore issued an ex parte order directing Souratgar to hand over 9 Shayan s passports and personal documents to Lee and barring She On May 16, the Subordinate Court of 10 Souratgar from removing the child from Singapore without court 11 approval and Lee s knowledge or consent. 12 the order, denied Lee s charges, and cross-applied for sole 13 custody. 14 Lee moved out of the marital home with Shayan and refused to 15 disclose their whereabouts to Souratgar. 16 in Malaysia, where Lee denied him access to the boy. 17 then filed a custody application in the Syariah Court of Malaysia, 18 which granted joint custody to the couple in early July. 19 Thereafter, Lee succeeded in obtaining a dismissal of that order 20 from the Malaysian Syariah Court for lack of jurisdiction. 21 Souratgar complied with While the custody proceedings were pending in Singapore, He eventually found them Souratgar After Lee and Shayan returned to Singapore, the custody 22 proceedings in Singapore s Subordinate Court resumed. 23 mediation session on July 14, 2011, the Subordinate Court barred 24 either parent from removing Shayan from Singapore without the 6 Following a 1 other s consent and ordered interim supervised visitation for 2 Souratgar of two hours per week at Singapore s Centre for Family 3 Harmony. 4 both parties agreed to a consent order by the Subordinate Court to 5 have custody decided by the Syariah Court of Singapore.3 6 meantime, Shayan remained in Lee s care, while Souratgar s 7 visitation time was doubled. In the On May 20, 2012, Lee removed Shayan from Singapore, in 8 9 Following another mediation session on February 16, 2012, violation of the Singapore Subordinate Court s order. Souratgar, 10 through a private investigator, eventually located Lee and Shayan 11 in Dutchess County, and on October 18, filed an ex parte 12 application in the district court under the Convention for Shayan s 13 return to Singapore. After ex parte hearings, the district court ordered Souratgar 14 15 to surrender his passport and post bond, and transferred custody of 16 the child to Souratgar. 17 guardian ad litem to represent Shayan s interests and ordered 18 Souratgar to make the child available to Lee for five sessions of 19 visitation per week, with not less than three hours per session, 20 during the pendency of the proceedings. 21 testimony from nine witnesses over a nine-day evidentiary hearing, 22 and on December 26, granted Souratgar s petition. 3 The district court then appointed a The district court heard This petition In late 2011, Lee had filed for divorce in Singapore s Syariah Court and used that proceeding to dismiss the temporary joint custody order of the Malaysian Syariah Court. 7 1 was temporarily stayed pending emergency appeal. 2 enforcement of the repatriation order, imposed an expedited 3 briefing schedule, and granted leave for the filing of amicus 4 briefs. 5 II. 7 Discussion A. 6 We stayed The Framework of the Hague Convention The Hague Convention, a multilateral treaty, is designed to 8 protect children internationally from the harmful effects of their 9 wrongful removal [by] establish[ing] procedures to ensure their 10 prompt return to the State of their habitual residence, Abbott v. 11 Abbott, 130 S. Ct. 1983, 2002 n.6 (2010) (quotation marks and 12 emphasis omitted), so that the rights of custody and of access 13 under the law of one Contracting State are effectively respected in 14 the other Contracting States, 15 1021 (2013) (quotation marks omitted). 16 repatriation is designed to preserve the status quo in the 17 child s country of habitual residence and deter parents from 18 crossing international boundaries in search of a more sympathetic 19 court. 20 1999) (quotation marks omitted). 21 Chafin v. Chafin, 133 S. Ct. 1017, The Convention s remedy of Blondin v. Dubois (Blondin II), 189 F.3d 240, 246 (2d Cir. The removal of a child under the Convention is deemed 22 wrongful when it is in breach of rights of custody attributed to 23 a person . . . under the law of the State in which the child was 24 habitually resident immediately before the removal. 8 Abbott, 130 S. 1 Ct. at 1989 (quotation marks omitted). Under the Convention, when 2 a parent wrongfully removes a child from one contracting state 3 which is the child s country of habitual residence to another 4 contracting state, the other parent may initiate a proceeding to 5 repatriate the child to the first state.4 6 petitioning party bears the burden of proving that the child was 7 wrongfully removed. 8 petitioner establishes that removal was wrongful, the child must 9 be returned unless the [respondent] can establish one of four In the United States, the 42 U.S.C. § 11603(e)(1)(A). Once the 10 defenses. 11 see also 42 U.S.C. § 11601(a)(4). 12 repatriation shall not be taken to be a determination on the 13 merits of any custody issue. 14 (quotation marks omitted); Mota v. Castillo, 692 F.3d 108, 112 (2d 15 Cir. 2012) ( [T]he Convention s focus is simply upon whether a 16 child should be returned to her country of habitual residence for 17 custody proceedings. ). The decision concerning Blondin II, 189 F.3d at 245 The parties do not dispute either that Singapore is the 18 19 Blondin II, 189 F.3d at 245 (quotation marks omitted); country of Shayan s habitual residence or that his removal from 4 The United States signed the Convention in 1981 and ratified the treaty, thereby becoming a contracting state, in 1988. See Ozaltin v. Ozaltin, 708 F.3d 355, 358 n.4 (2d Cir. 2013). Under Article 38, one state s accession will have effect with respect to another contracting state only after such other state has declared its acceptance of the accession. 1343 U.N.T.S. at 104. Singapore signed the Convention in 2010 and ratified it on March 1, 2011. Singapore s accession was accepted by the United States on February 9, 2012 and entered into force on May 1, about three weeks before Lee left Singapore with Shayan. 9 1 Singapore was wrongful under the Convention. 2 is whether the two affirmative defenses that Lee raised under 3 Articles 13(b) and 20 of the Convention preclude repatriation. 4 Under Article 13(b), 5 6 7 8 9 10 The issue on appeal the judicial or administrative authority of the requested State is not bound to order the return of the child if [the party opposing repatriation] establishes that . . . 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. 11 1343 U.N.T.S. at 101. 12 refused if this would not be permitted by the fundamental 13 principles of the requested State relating to the protection of 14 human rights and fundamental freedoms. 15 Under Article 20, repatriation also may be Id. The respondent parent opposing the return of the child has the 16 burden of establishing by clear and convincing evidence that one 17 of the exceptions set forth in article 13b or 20 of the Convention 18 applies. 19 proven by a preponderance of the evidence. 20 F. Supp. 2d 197, 224 (S.D.N.Y. 2011). 21 with considerable discretion under the Convention. 22 where the grounds for one of these narrow exceptions have been 23 established, the district court is not necessarily bound to allow 24 the child to remain with the abducting parent. 25 F.3d at 246 n.4. 42 U.S.C. § 11603(e)(2)(A). 10 Subsidiary facts may be See In re Lozano, 809 The district court is vested Indeed, even Blondin II, 189 B. 1 2 Standard of Review We review the district court s interpretation of the 3 Convention de novo and its factual determinations for clear error. 4 Blondin v. Dubois (Blondin IV), 238 F.3d 153, 158 (2d Cir. 2001). 5 Our review under the clearly erroneous standard is significantly 6 deferential. 7 Laborers Pension Trust for S. Cal., 508 U.S. 602, 623 (1993). 8 must accept the trial court s findings unless we have a definite 9 and firm conviction that a mistake has been committed. 10 We Id. (quotation marks omitted). C. 11 12 Concrete Pipe & Prods. of Cal., Inc. v. Constr. Lee s Article 13(b) defense Lee contends that returning Shayan to Singapore would expose 13 him to a grave risk of physical or psychological harm or 14 otherwise place him in an intolerable situation and that the 15 district court s finding to the contrary was error. 16 could face upon return, she asserts, are (1) exposure to spousal 17 abuse; (2) direct abuse from his father; or (3) the loss of his 18 mother. 19 arguments are permeated with conjecture and speculation and that 20 there was no error in the district court s determination that Lee 21 had failed to meet her burden to establish the Article 13(b) 22 defense. 23 24 The harms he After carefully reviewing the record, we find that Lee s Under Article 13(b), a grave risk of harm from repatriation arises in two situations: (1) where returning the child means 11 1 sending him to a zone of war, famine, or disease; or (2) in cases 2 of serious abuse or neglect, or extraordinary emotional dependence, 3 when the court in the country of habitual residence, for whatever 4 reason, may be incapable or unwilling to give the child adequate 5 protection. 6 The potential harm to the child must be severe, and the [t]he 7 level of risk and danger required to trigger this exception has 8 consistently been held to be very high. 9 Beveridge, 125 F. Supp. 2d 634, 640 (E.D.N.Y. 2000) (citing cases). Blondin IV, 238 F.3d at 162 (quotation marks omitted). Norden-Powers v. 10 The grave risk involves not only the magnitude of the potential 11 harm but also the probability that the harm will materialize. 12 de Sande v. Van de Sande, 431 F.3d 567, 570 (7th Cir. 2005). 13 Van This grave risk exception is to be interpreted narrowly, 14 lest it swallow the rule. 15 (6th Cir. 2007); Blondin II, 189 F.3d at 246 (warning that 16 permissive invocation of the affirmative defenses would lead to 17 the collapse of the whole structure of the Convention by depriving 18 it of the spirit of mutual confidence which is its inspiration 19 (quotation marks and citation omitted)). 20 21 1. Simcox v. Simcox, 511 F.3d 594, 604 Risk from exposure to spousal abuse Many cases for relief under the Convention arise from a 22 backdrop of domestic strife. Spousal abuse, however, is only 23 relevant under Article 13(b) if it seriously endangers the child. 24 The Article 13(b) inquiry is not whether repatriation would place 12 1 the respondent parent s safety at grave risk, but whether so doing 2 would subject the child to a grave risk of physical or 3 psychological harm. 4 468 (1st Cir. 2010) (per curiam). Charalambous v. Charalambous, 627 F.3d 462, 5 The exception to repatriation has been found where the 6 petitioner showed a sustained pattern of physical abuse and/or a 7 propensity for violent abuse that presented an intolerably grave 8 risk to the child. 9 1986253, at *8 (E.D.N.Y. May 7, 2008). Laguna v. Avila, No. 07-CV-5136 (ENV), 2008 WL Evidence of [p]rior 10 spousal abuse, though not directed at the child, can support the 11 grave risk of harm defense, Rial v. Rijo, No. 1:10-cv-01578-RJH, 12 2010 WL 1643995, at *2 (S.D.N.Y. Apr. 23, 2010), as could a showing 13 of the child s exposure to such abuse, Elyashiv v. Elyashiv, 353 F. 14 Supp. 2d 394, 408 (E.D.N.Y. 2005). 15 is not dispositive in these fact-intensive cases. Evidence of this kind, however, 16 Sporadic or isolated incidents of physical discipline directed 17 at the child, or some limited incidents aimed at persons other than 18 the child, even if witnessed by the child, have not been found to 19 constitute a grave risk. 20 180 (S.D.N.Y. 2011) (granting repatriation petition even though the 21 child had witnessed one incident of spousal abuse as a two-year- 22 old); Rial, 2010 WL 1643995 at *2 3 (ordering return of child 23 despite evidence that petitioner was verbally and sometimes 24 physically abusive to respondent); Lachhman v. Lachhman, No. 08-CV- See In re Filipczak, 838 F. Supp. 2d 174, 13 1 04363 (CPS), 2008 WL 5054198, at *9 (E.D.N.Y. Nov. 21, 2008) 2 (concluding that evidence of petitioner s previous arrest, but not 3 conviction, on domestic abuse charges was insufficient to establish 4 grave risk where there was no evidence that petitioner had ever 5 harmed child). 6 Lee was subjected to domestic abuse on certain occasions albeit 7 less than she claimed, at no time was Shayan harmed or targeted. 8 9 In this case, the district court found that, while We have held that Article 13(b) relief could be granted if repatriation posed a grave risk of causing unavoidable 10 psychological harm to the child. See Blondin IV, 238 F.3d at 160- 11 61 (affirming denial of petition to repatriate after an expert 12 psychologist opined that returning the boy and girl to France, 13 where they had been abused by their father, would likely trigger 14 recurrence of PTSD, and that no arrangement could mitigate this 15 risk). 16 nature of the potential harm at issue recurrence of PTSD that 17 would occur as soon as the children entered France there was 18 nothing the courts could do to prevent it. 19 nothing in the record beyond speculation that Shayan would suffer 20 unavoidable psychological harm if returned to Singapore. 21 party nor the guardian ad litem requested a psychological 22 evaluation of the boy, and the guardian ad litem reported, after 23 observing Shayan s interactions with both parents and interviewing 24 him separately, that the boy appeared to be an active and happy The holding in Blondin IV depended on the fact, due to the 14 In this case, there is Neither 1 child, who seemed distressed about the difficulties between his 2 parents. 3 indicated that he was never physically disciplined and never saw or 4 heard either parent hit the other or try to hurt the other parent. 5 These observations are consistent with the reports to the Singapore 6 Subordinate Court by Singapore s Centre for Family Harmony, which 7 supervised and reported on Souratgar s visits with the boy. 8 contrast, the girl in Blondin IV had herself been abused and 9 expressed fear of her father. 10 Shayan expressed unqualified love for both parents and In The circuit court cases affirming denial of repatriation cited 11 by Lee are distinguishable in that the petitioning parent had 12 actually abused, threatened to abuse, or inspired fear in the 13 children in question. 14 Cir. 2012) (daughter told social worker she was scared of her 15 father); Simcox, 511 F.3d at 608 (father subjected children to 16 repeated beatings, hair pulling, ear pulling, and belt-whipping 17 and psychological abuse); Van de Sande, 431 F.3d at 570 (father 18 spanked daughter and threatened to kill wife and children); Walsh 19 v. Walsh, 221 F.3d 204, 221-22 (1st Cir. 2000) (one child diagnosed 20 with PTSD as a result of physical abuse and father repeatedly 21 violated court orders); Blondin II, 189 F.3d at 243 (father tied 22 cord around daughter s neck and threatened to kill mother and 23 daughter); see also Baran v. Beaty, 526 F.3d 1340, 1346 (11th Cir. 24 2008) (despite the absence of any evidence of past abuse of the See Khan v. Fatima, 680 F.3d 781, 787 (7th 15 1 child by the father, the father was found to be frequently drunk, 2 emotionally unstable, and to have threatened the child and verbally 3 and physically abused the mother in the child s presence); 4 Danaipour v. McLarey, 286 F.3d 1, 5-8 (1st Cir. 2002) (father may 5 have sexually abused the daughter). 6 foregoing cases, we do not mean to suggest that only evidence of 7 past parental abuse of the child, past parental threats to the 8 child or the child s fear of a parent can establish a successful 9 Article 13(b) defense. In distinguishing the We only hold that in this case, the 10 evidence, which does not match the showing in those cases, does not 11 establish that the child faces a grave risk of physical or 12 psychological harm upon repatriation. 13 Lee contends that the district court erred in discounting the 14 likelihood that Shayan would be exposed to renewed domestic strife 15 and suffer grievous psychological harm upon his return to Singapore. 16 She also faults the district court for refusing to credit expert 17 testimony characterizing Souratgar as having a coercive and 18 controlling personality type with a tendency to hurt women and 19 children. 20 psychological expert testimony of Dr. B.J. Cling, who described 21 abusive spouses of the coercive control type and of the 22 situational type and placed Souratgar in the former category. 23 The coercive control type is said to demand domination and control 24 and grows more dangerous upon separation from the victim. At the hearing, the district court heard the 16 On this 1 basis, Dr. Cling concluded that Souratgar still poses an extreme 2 danger to Lee even though they had been estranged for more than a 3 year. 4 Lee s answers to a survey, which the district court found to 5 contain inaccuracies. 6 Cling s conclusions. 7 disagreement with the district court s finding.5 8 evidence of spousal conflict alone, without a clear and convincing 9 showing of grave risk of harm to the child, to be sufficient to Dr. Cling s assessment of Souratgar was based entirely on The district court therefore discredited Dr. Our review of the record yields no basis for For us to hold 10 decline repatriation, would unduly broaden the Article 13(b) 11 defense and undermine the central premise of the Convention: that 12 wrongfully removed children be repatriated so that questions over 13 their custody can be decided by courts in the country where they 14 habitually reside. 15 is not that abuse of the kind described by Lee can never entitle a 16 respondent to an Article 13(b) defense; rather it depends on the 5 Simcox, 511 F.3d 594 at 604. Our holding today In rejecting Dr. Cling s coercive control analysis, the district court stated that the evidence did not support any conclusion that petitioner is an obsessed or jilted lover who seeks to be reunited with respondent or prevent others from being with her. Souratgar, 2012 WL 6700214, at *10. Although we find no error in the district court s substantive treatment of Dr. Cling s testimony, she did not testify that Souratgar was controlling because he had been jilted. The arguments of Lee and amici regarding the risk of violence from a formerly abusive spouse do not depend on any such characterization, and we disclaim any suggestion that only a person dealing with an obsessed or jilted lover might face such a risk. As we have explained, however, we find no clear error in the district court s finding that the facts here do not indicate a grave risk of harm to the child in this particular instance. 17 1 district court s finding that Shayan would not be in danger of 2 being exposed to a grave risk of physical or psychological harm and 3 that the Singapore court system has demonstrated its ability to 4 adjudicate the dispute over his custody. 2. 5 Risk of abuse by the father 6 Lee also contends that Shayan faces a direct risk of harm from 7 his father, who, having been abusive to Lee, is also likely to turn 8 on Shayan. 9 description of the coercive control type in the social science In support of this assertion, amici cite the 10 literature that draws certain correlations between perpetrators of 11 spousal abuse and child abuse. 12 Cling s methodology in type-casting Souratgar, the lack of any 13 indicia of ill-will on the part of Souratgar toward Shayan, and 14 contrary credited evidence of a loving father-son relationship, 15 there is no clear and convincing showing in the record that the boy 16 faces a grave risk of harm from his father. 17 18 3. However, given the problems with Dr. Grave risk arising from loss of the mother Lee also posits various scenarios in which the boy would be 19 deprived of his mother post-repatriation. 20 (a) resort to Syariah court proceedings in Singapore or Malaysia to 21 win custody outright; (b) abscond with Shayan to Iran; or 22 (c) expose her to the charge of apostasy (leaving the Muslim faith), 23 a religious crime punishable by death in her home country of 18 She claims Souratgar may 1 Malaysia. 2 factual support. 3 The district court dismissed these claims as lacking As an initial matter, we cannot conclude that the prospect 4 that one parent may lose custody of the child, post-repatriation, 5 necessarily constitutes a grave risk to the child under the 6 Convention. 7 custody to courts in the country where the child habitually resides, 8 it is quite conceivable that in some cases one or the other parent 9 may lose legal custody after repatriation and be deprived of access Since the Convention defers the determination of 10 to the child. 11 child does not constitute a grave risk of harm per se for Article 12 13(b) purposes. 13 of any loss of contact with the Mother is something that must be 14 resolved by the courts of the Children s habitual residence. 15 (quotation marks omitted)). 16 the child losing his mother poses a grave risk to the child s well- 17 being, there is no basis to disturb the district court s finding 18 that Lee has not made a clear and convincing showing that any of 19 the scenarios that she raised is likely to occur. 20 21 22 Thus, the possible loss of access by a parent to the See Charalambous, 627 F.3d at 469 ( [T]he impact But even assuming that the prospect of a. Loss of custody through Syariah Court proceedings Lee argues that Souratgar s attainment of custody in a Syariah 23 Court is preordained. The district court heard expert testimony 24 that under Islamic law, a woman s testimony may be entitled to less 25 weight than a man s and there are presumptions in custody 19 1 determinations that favor fathers over mothers and Muslims over 2 non-Muslims. 3 custody is likely to be decided by a Syariah Court upon 4 repatriation, much less that such courts are predisposed to reach a 5 certain outcome. 6 successfully obtained a dismissal of the order of the Malaysia 7 Syariah Court, which had awarded the couple joint custody, for lack 8 of jurisdiction. 9 proceedings in Singapore are inconsistent with her consent in 10 11 Lee has not shown, however, that the question of If anything, the record is to the contrary. Lee Furthermore, her aspersions on Syariah February 2012 to have custody decided by that court. Moreover, the Singapore Syariah Court has pendant, not 12 exclusive jurisdiction, to hear child custody matters among Muslim 13 couples. 14 Muslim faith, a religious minority in Singapore, must be brought in 15 the country s Syariah Court. 16 ( AMLA ) § 35(2)(b)(2013)(Sing.). 17 proceeding before the Syariah Court may apply for leave to have 18 custody decided by a secular court. 19 both parties consent, they do not need to apply for leave in the 20 Syariah Court to have custody matters decided in a secular court. 21 Id. § 35A(5)-(7). 22 proceedings, upon repatriation, in Singapore s civil courts. 23 if this undertaking is unenforceable, as Lee insists, she may still 24 invoke it, as well as this Court s decision, in any application to By statute, divorce actions between individuals of the Administration of Muslim Law Act But any party to a divorce Id. § 35A(1)&(2). And when Souratgar has committed to pursue any custody 20 Even 1 transfer the custody determination from the Singapore Syariah Court 2 under AMLA § 35A(1). 3 the district court s conclusion that Lee failed to make a 4 sufficient showing that the question of custody will be decided by 5 a Syariah Court.6 In light of these options, we cannot fault b. 6 Risk of father s flight to Iran Lee also claims that Souratgar will abscond with Shayan to 7 8 Iran to subvert the custody proceedings in Singapore. She 9 testified that Souratgar has expressed a preference for Iranian 10 military schooling for the boy, that he would like to take Shayan 11 to see the boy s paternal grandparents in Iran, and that he has 12 considered the possibility of relocating his business activity to 13 that country. 14 showing that Souratgar would abduct the boy to Iran or any other 15 country in violation of a court order, and we discern no error in 16 this finding. 17 under Article 13(b) where mother s subjective perception of a 18 threat . . . was not corroborated by other evidence in the record 19 (quotation marks omitted)); Walsh, 221 F.3d at 221 (granting relief 20 after concluding that relying on courts to provide protection had 21 little chance of working given the respondent s history of 22 violating court orders). 6 The district court, however, found no credible See Charalambous, 627 F.3d at 469 (denying relief We cannot fail to observe, moreover, that Lee also claims that Souratgar schemed to deprive her of her Malaysian citizenship and jeopardize her ability to contest Shayan s custody in Singapore. We have considered this argument and find it to be without merit. 21 1 unlike Lee, Souratgar has to date honored the legal requirements of 2 the courts in Singapore. c. 3 4 Apostasy Finally, Lee claims that Souratgar exposed her to being 5 charged with apostasy, which she says, is a capital offense in 6 Malaysia and thus created a grave risk that Shayan would lose his 7 mother. 8 Lee s expert witness on Islamic law, who testified that apostasy is 9 punishable by death in Malaysia. This claim is based on the testimony of Yasmeen Hassan, The claim distorts both the facts 10 and law. Souratgar did not accuse Lee of leaving the faith. 11 his attempt to obtain access to Shayan in Malaysia, Souratgar filed 12 an affidavit with Malaysia s Syariah Court reporting that Lee had 13 committed certain acts in violation of Islamic law, such as selling 14 cakes containing alcohol online and attending church. 15 although punishment for those who abandon the Muslim faith has been 16 debated in Malaysia, the national government has consistently 17 blocked any formal implementation of rules concerning apostasy. 18 See Kikue Hamayotsu, Once a Muslim, Always a Muslim: The Politics 19 of State Enforcement of Syariah in Contemporary Malaysia, 20 S. E. 20 Asia Research 399, 400 (2012); Abdullah Saeed & Hassan Saeed, 21 Freedom of Religion, Apostasy and Islam 19 (2004). 22 no indication that Lee could even be charged with apostasy in 23 Malaysia, much less face the death penalty. 22 In Additionally, Hence, there is D. 1 2 Lee s Article 20 defense The Article 20 defense allows repatriation to be denied when 3 it would not be permitted by the fundamental principles of the 4 requested State relating to the protection of human rights and 5 fundamental freedoms. 6 Abduction Convention: Text and Legal Analysis, Pub. Notice 957, 51 7 Fed. Reg. 10,494, 10,510 (Mar. 26, 1986). 8 restrictively interpreted and applied. 9 unique formulation that embodies a political compromise among the 10 states that negotiated the Convention, which might never have been 11 adopted otherwise. 12 rare occasion that return of a child would utterly shock the 13 conscience of the court or offend all notions of due process. 14 It is not to be used . . . as a vehicle for litigating custody on 15 the merits or for passing judgment on the political system of the 16 country from which the child was removed. 17 defense has yet to be used by a federal court to deny a petition 18 for repatriation. 19 Civil Aspects of International Child Abduction: A Guide for Judges 20 85 (2012). 21 U.S. State Dep t, Hague International Child Id. The article is to be Id. Article 20 is a The defense is to be invoked only on the Id. Id. We note that this Fed. Jud. Ctr., The 1980 Hague Convention on the In urging the Article 20 exception in this case, Lee insists 22 broadly that Syariah Courts are incompatible with the principles 23 relating to the protection of human rights and fundamental 24 freedoms of this country. While this general assertion might find 23 1 sympathy among some in this country as a political statement, we 2 decline to make this categorical ruling as a legal matter. 3 Moreover, Lee has failed to show that the issue of custody is 4 likely to be litigated before Singapore s Syariah Court. 5 that failure, we are not inclined to conclude simply that the 6 presence of a Syariah Court in a foreign state whose accession to 7 the Convention has been recognized by the United States is per se 8 violative of all notions of due process. 7 9 (Mar. 26, 1986). Given 51 Fed. Reg. 10,510 10 We are also mindful of the need for comity, as [t]he careful 11 and thorough fulfillment of our treaty obligations stands not only 12 to protect children abducted to the United States, but also to 13 protect American children abducted to other nations-whose courts, 14 under the legal regime created by this treaty, are expected to 15 offer reciprocal protection. 16 exercise of comity, we are required to place our trust in the 17 court of the home country to issue whatever orders may be necessary 18 to safeguard children who come before it. 19 Carrascosa v. McGuire, 520 F.3d 249, 261-63 (3d Cir. 2008) 20 (criticizing a Spanish court for construing an agreement not to 21 take child out of the United States without the consent of both 7 Blondin II, 189 F.3d at 242. In the Id. at 248-49; cf. Indeed, such a holding would contradict the State Department s view expressed upon Singapore s accession as a bilateral partner under the Convention last year, that Singapore is a role model among states in the region. United States and Singapore become Hague Abduction Convention Partners, U.S. Dep t of State, May 3, 2012, http://www.state.gov/r/pa/prs/ps/2012/05/189236.htm. 24 1 parents as violating fundamental rights under the Spanish 2 Constitution for citizens to travel and choose their place of 3 residence and using Article 20 to justify denial of repatriation). 4 5 For all of the above reasons, we conclude that the district court did not err in rejecting Lee s Article 20 defense. 6 III. Conclusion 7 We have considered all of Lee s remaining arguments and find 8 them to be without merit. 9 court s grant of Souratgar s petition for his son s repatriation is 10 For the foregoing reasons, the district AFFIRMED. 25
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