In re Application of Ariel Adan v. Elena Ester Avans, 2008 WL 436881 for facts, see 2007 WL 2212711(D.N.J.)
- Docket Number
- 04-5155 (WHW)
- Published
- Yes
- Decision Date
- 2008-09-22
- Name of Court
- Third Circuit Court of Appeals
- Opinion by
- Barry, Maryanne Trump
- Counsel for Petitioner
- Lesnevich, Walter A; Mildner, Michael R
- Counsel for Respondent
- Mulvihill, Daniel F; Rockwell, Jason W
- Counsel for Court
- Requesting State
- Argentina
- Requested State
- United States of America
- Procedural History
-
Petitioner Adan filed petition seeking return of child under the Hague Convention provisions in October 2004 in the District Court of New Jersey. The court heard testimony on the matter on June 6-7, 2005. On June 7, the court issued an order granting the petition and ordering return on the child to Argentina. Respondent Avans appealed to Third Circuit, which vacated June 7 order and remanded for further proceedings. On April 11, 12, 16, and 17, 2007, the court held evidentiary hearing. On June 25, the court granted petition and ordered the parties to appear to discuss plans to transport child to Argentina. On July 24, respondent filed a motion for reconsideration and for stay of the June 25 order. On July 30, the court denied respondent’s motions for reconsideration and for stay. Respondent appealed. On September 22, 2008, from the bench, the Third Circuit reversed the district court’s orders for removal and remanded to district court with orders to dismiss the petition under the Hague Convention.
- Summary of Facts
-
Respondent/mother, a naturalized citizen of the United States, moved to her home country Argentina in 1997 and met Petitioner/father. About four months into their relationship, Petitioner began abusing Respondent, and that abuse continued throughout their relationship. They cohabitated, but in March 2000, while pregnant, Respondent returned to the United States where she gave birth to a girl in June 2000. Petitioner also moved to the United States in April 2000, and the couple resumed cohabitating. Petitioner and Respondent returned to Argentina in September 2000 with their child. In June 2002, the parties separated, were briefly reconciled, but separated for the last time in June 2003. Petitioner, the non-custodial parent, had regular visitation with the child under a custody agreement. In December, Respondent went to family court in San Martin and complained that Petitioner was harassing her and sexually abusing the child. At that time, the court issued a restraining order and set the matter on for a hearing in March 2004. But in January 2004, Respondent took the child to the United States.
In October 2004, Petitioner petitioned under the Hague Convention for return of the child. The federal district court heard testimony in June 2005 and ordered removal of the child because Respondent had not demonstrated by clear and convincing evidence that the child would be subject to physical or psychological harm if returned to Argentina. Respondent appealed, and in September 2008, the Third Circuit reversed the district court’s order of removal from the bench. Because the parties were never married, and because Petitioner signed a custody agreement giving Respondent physical custody, at trial, Respondent argued at trial that Petitioner did not have sufficient custody rights under Argentine law to contest removal of the child from the country under the Hague Convention.
At trial, Respondent offered evidence that the Petitioner sexually abused the child and he also verbally, physically and sexually abused Respondent, including when Respondent was pregnant with the child and after the child was born. Respondent testified that after the child was born, Petitioner became angry with Respondent because she did not want to return to Argentina. Respondent testified that he knelt by the child’s bassinet and screamed in her ear until Respondent agreed to return.
The parties returned to Argentina. The parties lived apart, but Petitioner continued to harass Respondent by showing up at her residence including one incident in which he raped her in front of the child. Respondent said that Petitioner pointed a gun and her and her child and threatened to kill them. In June 2003, Respondent returned from work and discovered a pubic hair on the child’s vagina. She confronted Petitioner, but he blamed it on a dirty bed. Respondent also testified about several other comments that the child made about events with Petitioner than led her to believe the Petitioner was sexually abusing the child. Respondent provided expert testimony by a physician who conducted an initial evaluation of the child for sexual abuse, but the physician was unable to offer a professional opinion about whether the child was sexually abused.
- Defenses Raised
-
Hague Article 3a: Removal breached the custody rights of the petitioner. Hague Article 13b: Grave risk of harm to the child if returned to the petitioning country.
- Statutes Considered (ICARA)
- 11601(b), 11603(e)
- Articles Considered (Hague Convention)
- 3(a), 3(b), 5(a), 6, 7, 13(a), 13(b), 14
- Cases Considered
- In re Application of Ariel Adan, 437 F.3d 381 (3rd Cir. 2006); Gioampaolo v. Erneta, 390 F.Supp.2d 1269,1279 (N.D.Ga. 2004); Whallon v. Lynn, 230 F.3d 450,455 (1st Cir. 2000); In re Cabrera, 323 F.Supp.2d 1301,1311 (S.D.Fla. 2004); Blondin v. Dubois, 189 F.3d 240 (2nd Cir.(N.Y.) 1999); Friedrich v. Friedrich, 983 F.2d 1396 (6th Cir.1993)
- Judicial Outcome or Order
- Dismissed
Why this Project?
We are a team of individuals from various professional backgrounds who are dedicated to creating a comprehensive resource that will enable mothers, domestic violence advocates, attorneys and judges to better prepare themselves for Hague Convention cases in the United States' legal system.
