Baran v. Beaty, 479 F. Supp. 2d 157 (S.D. Ala. 2007)
- Docket Number
- Civil Action No. 07-0125-WS-M
- Published
- Yes
- Decision Date
- 2007-03-28
- Name of Court
- U.S. District Court, S.D. Alabama, Southern Division
- Opinion by
- Steele
- Counsel for Petitioner
- Benjamin, Max
- Counsel for Respondent
- Enfinger, Jr., Floyd C
- Counsel for Court
- Requesting State
- Australia
- Requested State
- United States of America
- Procedural History
-
Petitioner submitted an Application for the Return of a Child with the Australian Central Authority, pursuant to the Hague Convention. He then filed a petition in this court. Acquiescence affirmative defense requires formal act or statement. Consent defense does not require consent be expressed with the same degree of formality as acquiescence, but is focused on petitioner’s subjective intent. Deception by respondent militates against finding of consent. Court examined Third Circuit holdings for grave risk exception, e.g. includes “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.”
- Summary of Facts
-
Petitioner Baran is Australian national. He suffered auto injuries and was nursed by respondent, Beaty. He cohabited with respondent, a U.S. citizen in Australia 2001-2006. A son was born in 2006. Petitioner drank heavily throughout the relationship and was violent, unstable and mean. He allegedly stated he never wanted the child and wished respondent and child would return to the United States. Respondent did surreptitiously board a plane for the U.S. in 2006.
- Defenses Raised
-
Consent or Acquiesce to removal of child. Consent defense does not require consent be expressed with the same degree of formality as acquiescence, but is focused on petitioner’s subjective intent. Deception by respondent militates against finding of consent. Grave risk to child if returned. Court examined Third Circuit holdings for grave risk exception, e.g. includes “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.”
- Statutes Considered (ICARA)
- 11603(e)(2)(A), 11603(e)(1)(A), 11603(e)(2)(B), 11601(a)
- Articles Considered (Hague Convention)
- 13(b), 13(a)
- Cases Considered
- Danaipour v. McLarey, 286 F.3d 1 (1st Cir.(Mass.) 2002); Baxter v. Baxter, 423 F.3d 363 (3rd Cir.(Del.) 2005); Walsh v. Walsh, 211 F.3d 204 (1st Cir.(Mass.) 2000); Blondin v. Dubois, 189 F.3d 240 (2nd Cir.(N.Y.) 1999); Friedrich v. Friedrich, 983 F.2d 1396 (6th Cir.1993); Van De Sande v. Van De Sande, 431 F.3d 567 (7th Cir.(Ill.) 2005); In re Kim, 404 F.Supp.2d 495 (S.D.N.Y. 2005)
- Judicial Outcome or Order
- Return Order Denied
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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.
