Stop Using the Grave Risk of Harm Defense to Shelter Kidnappers from Returning Children Under the Hague Abduction Convention

Over the past decade, the use of the “grave risk of harm” defense has become the “go to” defense by respondents in litigation. This is in part due to the attorneys who representing the parent who improperly removed the child from her home state arguing that the domestic abuse by one parent against the other is effectively per se a grave risk of harm to the child. As I will discuss further below, this conclusion undermines the entirety of the purpose of the convention and asks the court here to make what is tantamount to a custody determination, rather than a purely jurisdictional determination.  It is also directly contrary to the jurisprudence in this country. Rather than blindly raise this as a defense, a competent practitioner needs to evaluate the evidence and the facts and circumstances of the case and decline to raise this defense absent compelling evidence.

Background and Jurisprudence 

Article 13(b) of the Hague Convention on the Civil Aspects of International Child Abduction (Abduction Convention) allows a court to deny return of a child to the country of habitual residence 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.” A grave risk of harm for the purposes of the Abduction Convention exists in only two situations: (1) when there is a grave risk of harm when return of the child puts the child in imminent danger prior to the resolution of the custody dispute, e.g., returning the child to a zone of war, famine, or disease; or (2) when there is a grave risk of harm in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection. Silverman, 312 F.3d at 919 (citing Friedrich II, 78 F.3d at 1069 and Blondin v. Dubois, 238 F.3d 153, 166 (2nd Cir. 2001)).

Article 13(b) has been given a “restrictive reading,” by US courts, emphasizing that those seeking to establish the defense must meet a high burden. According to the State Department’s interpretation of Article 13(b), the defense was not intended to be used by respondents as a vehicle to litigate (or relitigate) the child’s best interests. The respondent must show that the risk to the child is grave, not just serious. The most commonly cited example of a grave or intolerable situation is one in which a custodial parent sexually abuses the child. Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed. Reg. 10494, 10510 (Mar. 26, 1986). Other physical or psychological abuse, serious neglect, and domestic violence in the home may also constitute an obvious grave risk to the child’s safety that could not readily be ameliorated.

As practitioner’s we present the facts of a case as our clients present them to us. Trial or district courts regularly return of a child to his home state after finding that the respondent has not proven a defense under the grave risk exception, even involving cases where there is serious and documented interspousal abuse. In the past, they have returned children only after requiring or ensuring ameliorative measures be taken to protect the child in his home country. However, after the decision in Golan v. Saada, 596 U.S.___ (2022), it is unclear how the courts will handle cases now that they cannot make a finding of a grave risk of harm, and order ameliorative measures along with the return of the child.

The mere fact of domestic violence will not generally be sufficient to establish the defense of “grave risk.”⁹ The Second Circuit has held that “[s]pousal abuse is only relevant under Article 13(b) if it seriously endangers the child,” because “the Article 13(b) inquiry is not whether repatriation would place the respondent parent’s safety at grave risk, but whether so doing would subject the child to a grave risk of physical or psychological harm.” See generally, Salame v. Tescari, 29 F.4th 763, 773 (6th Cir. 2022); Sanchez v. R.G.L., 761 F.3d 495, 5111 (5th Cir. 2014). The 9th Circuit has similarly stated, “[t]he case law reflects that ‘domestic violence is a common inciter to “abduction”—the abused spouse flees and takes her children with her.’” Colchester v. Lazaro, 16 F.4th 712, 717 (9th Cir. 2021) (quoting Khan v. Fatima, 680 F.3d 781, 784 (7th Cir. 2012)). Yet, a grave risk to the respondent does not automatically qualify as grave risk to the child.  In Charalambous v. Charalambous, 627 F.3d 462, 468 (1^st Cir. 2010) the court held that the respondent parent “failed to draw a connection establishing, by clear and convincing evidence, that any risk to her constituted a grave risk to the children,” reasoning that although she had endured some verbal and emotional abuse including one incident of physical abuse, the children did not witness it. Courts may find a grave risk of harm if a respondent can demonstrate that the interspousal violence occurred in the presence of the child. Colchester, at 718 . “Th[e] ‘grave risk’ defense thus reflects the proposition that ‘the remedy of return … is inappropriate when the abductor is a primary caretaker who is seeking to protect herself and the children from the other parent’s violence.” Colchester, quoting Khan, 680 F.3d at 784. The court may consider evidence of a parent’s history of abuse, or threats of abuse, to determine the probability and magnitude of risk to the child. See, Gomez v. Fuenmayor, 12 F.3d 1005, 1012–14 (11th Cir. 2016).

From all of these cases and even a cursory review of the federal and state cases over the past 5-10 years, it is clear that the focus should be on the child. If you are going to raise an Article 13(b) defense, then you must be clear that the focus is on the harm to the child and not merely evidence of abuse to the respondent. Therefore, we should turn our focus as to whether a return of the child his home state, not the petitioner per se would create a grave risk of harm. Prior to the Golan case the courts did exactly this, but required ameliorative measures.

Practical Considerations and Recommendations

In the reported cases, most courts have noted the above-cited case law (in whole or part) and held that there was insufficient evidence to deny the return of a child under the 12(b) or grave risk of harm defense. Yet, we see this defense raised frequently and with very little supporting evidence.  What can or should be presented if you are going to raise the grave risk of harm defense:

• You need more than just the mere testimony of the respondent. If the only evidence is what the kidnapping parent says, it is not enough. Testimony of witnesses, including people in the other country, who are unbiased will bolster the testimony of the respondent. If you have just the respondent’s sister and mother testify, the judge may well find that they are biased.
• Police reports, medical documentation, prior orders of protection, evidence of mental health issues of the abusive parent, photos, emails or other written admissions of the petitioner, and other documentation that existed prior to the removal of the child. This is key. If the only documentation that your client presents to you is recently created it is not credible. You want to show the history of the abuse.
• Therapist reports or treatment records of the child, school records showing a change in the child’s behavior over time, drawings or writings of the child, and ultimately the testimony of the child if she is of sufficient age. The evidence should be tied to the documented abuse. The strongest evidence will be a treating therapist of the child who can link the abuse to harm to the child.

Let’s consider a situation based on the following scenario: Mom takes vacation with the child from France to the US to visit her family. Upon arrival, mom notifies dad that she will not be returning to France. Dad files petition to return the child to France. Mom responds to petition by alleging a history of domestic violence and asserts an Article 13(b) defense. 

Consider the above basic facts, coupled with evidence that upon arrival to the US the mother immediately sought therapy for the child. The therapist reports that the child showed symptoms of trauma and PTSD. Mother provides documentary/video evidence of abuse by Dad and that child witnessed abuse. This will allow the court to draw a direct connection between the domestic violence and the harm to the child.  Now consider those facts, except that the mom did not seek therapy for the child until after the dad sought return through the courts and was the sole custodian of the child for 9 months.

Frankly the facts should cause you to consider a litany of questions, such as: Does it matter if the child is 3 years old or 10 years old? Does the return of the child to the other jurisdiction present a grave risk of harm to the child, or does it merely make the respondent uncomfortable? What is the nature and type of evidence that we need to gather or evaluate, depending on the facts presented? Can we even collect that evidence? How do we evaluate whether there is a grave risk to the child, without making a custody determination? Are we concerned by the fact that the respondent has had months to prepare the child and potentially poison the well? Does this make the connection more tenuous, or contrived in anticipation of the litigation? How can we counsel the client with respect to this? Which of these questions are more properly addressed by the courts of the home state considering this in the context of a custody case?

Whether you have good evidence or not, as a responsible attorney for the respondent, you must also consider the overall circumstances of the case. If your client has lost in court and now for the first time raises an allegation of domestic violence, or the issue of domestic violence has been litigation unsuccessfully for your client in the other country, it is highly unlikely that the court’s here will go against those decisions. Ask your client specifically about this.

As the petitioner, you can likely take a back seat to this. The Abduction Convention does not require you to prove a negative. However, if the respondent has been forum shopping and making allegations of abuse that have been considered by the foreign court, you can respond with this evidence. In fact, if you know that this is something that the respondent has argued before (unsuccessfully) you can address this in the Petition to take the wind out of the sails of the respondent. Address the issue head on and make the strongest case first. As the attorney for the petitioner, make sure that you ask this question (sometimes you need to ask the question a dozen times), because there is nothing worse that reading about it in the respondent’s reply to the petition.

The judges in federal court seem to be getting it. In the recent cases, more often than not, a finding of grave risk of harm is not made when the defense is raised. In the cases, where there is a finding, the evidence is substantial (if not overwhelming).

Remember, the grave risk of harm must be proven by clear and convincing evidence. That means more likely than not, or as my criminal law professor once said, ‘Like 50% plus something.’ The consideration is not whether or not it is more likely that the domestic violence occurred, but that it is more likely than not that the child will be so significantly harmed by being returned to the other country as a result of the alleged (or actual) prior domestic violence between the parents, such that the foreign court should not determine custody. If there is a finding of grave risk and the child remains here, the effective result of this finding is that jurisdiction for the child custody case will lie in the appropriate US State where the child is now domiciled. Remember, the merits of the custody case are not being decided in the child abduction case, you are only getting a jurisdictional determination.

Once the court makes a finding that there is a grave risk of harm, it may simply deny the petition for a return. The court cannot require ameliorative measures after Golan, and therefore, the successful Article 12(b) defense effectively constitutes a bar to the return of the child. The question now seems to be whether the court can make a finding that there is a grave risk of harm and still order the return of the child. 

Final Thoughts

Most of us have unfortunately handled divorce or custody cases where we represent an abused parent; or, we represent the abusive parent. Domestic violence occurs far too often and is frequently the basis for the end of a relationship. However, most of us have unfortunately also handled divorce or custody cases where a parent outright lies about domestic violence.  In consulting on and litigating these cases over the past 20 years, the parent who abducted the child has raised the allegation of domestic violence in every single case that I have personally been involved with. I have actually started consults recently by asking about this. The Article 13(b) defense was pled in every litigated case that I have been involved in. 

It seems to me to be a statistical anomaly that in almost every single child abduction case there is domestic violence. That statistical anomaly has made me highly suspicious of the use of the grave risk defense based solely on domestic violence. While there is no doubt that parents fight and yell or scream at each other, even hate each other, there is a difference between domestic violence and mere domestic contretemps.

My impression is that in many cases kidnappers are simply making up allegations of abuse or inflating contretemps into something more significant, because they think that they will get the sympathy of the court and not be forced to return to the other country. Or, they know that they will be forced to stay in the other country to facilitate co-parenting, so they kidnap the child and then lie about domestic violence. We need to critically evaluate these cases and we need to decline to raise the grave risk of harm defense on the basis of domestic violence absent compelling evidence of immediate and real harm to the child. Even if we have compelling evidence of abuse to the kidnapper, we need to link the harm to the child and reserve the defense for cases that we think we can actually prove. I’m sure I’ll catch some slack for this position, but in my opinion, to do otherwise harms the position of victims of domestic violence and their children who really had no option but to flee for their safety and diminishes the intent and purpose of the convention. 

Amy Cores is an attorney licensed in NJ, NY, and TN. She is a Fellow of the AAML, former Fellow of the IAFL, Certified by the NJ Supreme Court as a Matrimonial Law Attorney, and Certified by the NBTA. She consults on and serves as an expert in international and interstate child custody and kidnapping cases. If you are an attorney handling one of these cases or a parent involved in one of these matters, you can schedule a consultation HERE with Ms. Cores to evaluate your case, provide litigation support, or coordinate litigation.