     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                            Docket No. 12-5088
 6   ----------------------------------------x

 7   ABDOLLAH NAGHASH SOURATGAR,

 8         Petitioner-Appellee,

 9                               -- v. --

10   LEE JEN FAIR,

11         Respondent-Appellant.

12   -----------------------------------------x

13   B e f o r e :      WALKER, WESLEY and DRONEY, Circuit Judges.
14
15         After Lee Jen Fair removed her child from Singapore to New

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.   The United States District Court for the Southern

21   District of New York (Castel, J.) granted the petition.     AFFIRMED.

22
23                                      ROBERT D. ARENSTEIN, Law Offices of
24                                      Robert D. Arenstein, New York, NY
25                                      for Petitioner-Appellee.
26
27                                      RANDY M. MASTRO and Jane Kim,
28                                      Gibson, Dunn & Crutcher LLP, New
29                                      York, NY and Dorchen A. Leidholdt,
30                                      Center for Battered Women’s Legal
31                                      Services, Sanctuary for Families,
32                                      New York, NY for Respondent-
33                                      Appellant.
34
 1   JENNIFER BAUM, St. Vincent de Paul
 2   Legal Program, Inc., Child Advocacy
 3   Clinic, St. John’s University School
 4   of Law, Jamaica, NY (Jenna M.
 5   DiCostanzo and Jennifer R. Kwapisz,
 6   St. John’s University School of Law
 7   on the brief) for Amicus Curiae
 8   Guardian ad Litem.
 9
10   William C. Silverman, Greenberg
11   Traurig, LLP, New York, NY for Amici
12   Curiae Tahirih Justice Center, Asian
13   Pacific American Legal Center,
14   Ayuda, Battered Women’s Justice
15   Project, The Central American
16   Resource Center, Greater Boston
17   Legal Services, Immigration & Asylum
18   Clinic of Boston College Law School,
19   Immigration Justice Clinic, John Jay
20   Legal Services, Inc., Inmotion,
21   Inc., Kentucky Coalition for
22   Immigrant and Refugee Rights, Legal
23   Services NYC, National Immigrant
24   Women’s Advocacy Project, New York
25   Asian Women’s Center, Inc.,
26   Philadelphia Legal Assistance,
27   Sexuality & Gender Law Clinic, and
28   Columbia Law School.
29
30   Joel Kurtzberg, Mary McCann, and
31   Etienne Barg-Townsend, Cahill Gordon
32   & Reindel LLP, New York, NY and Lynn
33   Hecht Schafran and Elizabeth Grayer,
34   Legal Momentum, New York, NY for
35   Amici Curiae Legal Momentum,
36   Domestic Violence Legal Empowerment
37   Appeals Project, End Violence
38   Against Women International, Iowa
39   Coalition Against Sexual Assault,
40   National Coalition Against Domestic
41   Violence, National Network To End
42   Domestic Violence, New Mexico
43   Coalition of Sexual Assault
44   Programs, Inc., the Pennsylvania
45   Coalition Against Rape, and the
46   Victim Rights Law Center.
47


       2
 1                                   Michael R. Lazerwitz, Lewis J. Liman
 2                                   and Kiesha Minyard, Cleary Gottlieb
 3                                   Steen & Hamilton LLP, New York, NY
 4                                   (William F. Gorin, Abigail Fee and
 5                                   Shira A. Kaufman, Cleary Gottlieb
 6                                   Steen & Hamilton LLP, on the brief)
 7                                   for Amici Curiae Dean Jeffrey L.
 8                                   Edleson, Ph.D., Professor Evan
 9                                   Stark, Ph.D., Professor Michelle
10                                   Madden Dempsey, Ph.D., Dr. Stephanie
11                                   Brandt, The Child Advocacy Clinic at
12                                   Columbia Law School, The University
13                                   of Baltimore Family Law Clinic, and
14                                   the University of Oregon Domestic
15                                   Violence Clinic.
16
17
18
19   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.   In May 2012, Lee removed the boy to

23   Dutchess County, New York, in direct violation of a Singapore court

24   order.   The United States District Court for the Southern District

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.   Souratgar v. Lee

30   Jen Fair, No. 12 CV 7797 (PKC), 2012 WL 6700214 (S.D.N.Y. Dec. 26,

31   2012).

32



                                       3
 1           The principal issue on appeal is whether Lee’s affirmative

 2   defenses to repatriation should have prevailed in the district

 3   court.       We find the district court correctly applied the Convention

 4   and affirm its order of repatriation.

 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.       Souratgar is an Iranian national

 9   who has owned a business in Singapore since 1989.       Lee is a

10   Malaysian national who worked as an airline attendant, saleswoman,

11   and retail manager in Singapore.      She converted to Islam,

12   Souratgar’s faith, just prior to their marriage in Singapore in

13   2007.    Shayan is a citizen of Malaysia with Malaysian and Iranian

14   passports.

15           The parties’ marital relationship has been stormy.      At the

16   district court hearing, they traded accusations and denials of

17   domestic abuse.      Souratgar accused Lee, among other things, of

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.       The district

23   court carefully checked these assertions against the various police

24   reports, medical records, and legal papers entered into evidence

                                           4
 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   The

 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.

 8        The district court found no credible evidence of any harm

 9   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 counter-
     charges 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.    She

 6   cited concern that Souratgar would take Shayan from the country and

 7   cut her off from the boy.   On May 16, the Subordinate Court of

 8   Singapore issued an ex parte order directing Souratgar to hand over

 9   Shayan’s passports and personal documents to Lee and barring

10   Souratgar from removing the child from Singapore without court

11   approval and Lee’s knowledge or consent.   Souratgar complied with

12   the order, denied Lee’s charges, and cross-applied for sole

13   custody.   While the custody proceedings were pending in Singapore,

14   Lee moved out of the marital home with Shayan and refused to

15   disclose their whereabouts to Souratgar.   He eventually found them

16   in Malaysia, where Lee denied him access to the boy.    Souratgar

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        After Lee and Shayan returned to Singapore, the custody

22   proceedings in Singapore’s Subordinate Court resumed.   Following a

23   mediation session on July 14, 2011, the Subordinate Court barred

24   either parent from removing Shayan from Singapore without the


                                       6
 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.   Following another mediation session on February 16, 2012,

 4   both parties agreed to a consent order by the Subordinate Court to

 5   have custody decided by the Syariah Court of Singapore.3   In the

 6   meantime, Shayan remained in Lee’s care, while Souratgar’s

 7   visitation time was doubled.

 8        On May 20, 2012, Lee removed Shayan from Singapore, in

 9   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.

14        After ex parte hearings, the district court ordered Souratgar

15   to surrender his passport and post bond, and transferred custody of

16   the child to Souratgar.   The district court then appointed a

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.   The district court heard

21   testimony from nine witnesses over a nine-day evidentiary hearing,

22   and on December 26, granted Souratgar’s petition.   This petition

     3
          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.    We stayed

 2   enforcement of the repatriation order, imposed an expedited

 3   briefing schedule, and granted leave for the filing of amicus

 4   briefs.

 5        II.    Discussion

 6               A.   The Framework of the Hague Convention

 7        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,”    Chafin v. Chafin, 133 S. Ct. 1017,

15   1021 (2013) (quotation marks omitted).    The Convention’s remedy of

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.”    Blondin v. Dubois (Blondin II), 189 F.3d 240, 246 (2d Cir.

20   1999) (quotation marks omitted).

21        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.”     Abbott, 130 S.

                                        8
 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   In the United States, the

 6   petitioning party bears the burden of proving that the child was

 7   wrongfully removed.   42 U.S.C. § 11603(e)(1)(A).   Once the

 8   petitioner “establishes that removal was wrongful, the child must

 9   be returned unless the [respondent] can establish one of four

10   defenses.”   Blondin II, 189 F.3d at 245 (quotation marks omitted);

11   see also 42 U.S.C. § 11601(a)(4).   The decision concerning

12   repatriation shall “not be taken to be a determination on the

13   merits of any custody issue.”   Blondin II, 189 F.3d at 245

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.”).

18        The parties do not dispute either that Singapore is the

19   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.       The issue on appeal

 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        the judicial or administrative authority of the requested
 6        State is not bound to order the return of the child if
 7        [the party opposing repatriation] establishes that . . .
 8        there is a grave risk that his or her return would expose
 9        the child to physical or psychological harm or otherwise
10        place the child in an intolerable situation.

11   1343 U.N.T.S. at 101.   Under Article 20, repatriation also “may be

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.”     Id.

15        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.”   42 U.S.C. § 11603(e)(2)(A).    Subsidiary facts may be

19   proven by a preponderance of the evidence.        See In re Lozano, 809

20   F. Supp. 2d 197, 224 (S.D.N.Y. 2011).     The district court is vested

21   with considerable discretion under the Convention.       Indeed, “even

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.”       Blondin II, 189

25   F.3d at 246 n.4.




                                      10
 1               B.   Standard of Review

 2        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.”    Concrete Pipe & Prods. of Cal., Inc. v. Constr.

 7   Laborers Pension Trust for S. Cal., 508 U.S. 602, 623 (1993).      We

 8   must accept the trial court’s findings unless we have a “definite

 9   and firm conviction that a mistake has been committed.”    Id.

10   (quotation marks omitted).

11               C.   Lee’s Article 13(b) defense

12        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.    The harms he

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.    After carefully reviewing the record, we find that Lee’s

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        Under Article 13(b), a grave risk of harm from repatriation

24   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.”   Blondin IV, 238 F.3d at 162 (quotation marks omitted).

 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.”   Norden-Powers v.

 9   Beveridge, 125 F. Supp. 2d 634, 640 (E.D.N.Y. 2000) (citing cases).

10   The grave risk involves not only the magnitude of the potential

11   harm but also the probability that the harm will materialize.      Van

12   de Sande v. Van de Sande, 431 F.3d 567, 570 (7th Cir. 2005).

13        This “‘grave risk’ exception is to be interpreted narrowly,

14   lest it swallow the rule.”   Simcox v. Simcox, 511 F.3d 594, 604

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                    1.   Risk from exposure to spousal abuse

21        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.    Charalambous v. Charalambous, 627 F.3d 462,

 4   468 (1st Cir. 2010) (per curiam).

 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.    Laguna v. Avila, No. 07-CV-5136 (ENV), 2008 WL

 9   1986253, at *8 (E.D.N.Y. May 7, 2008).    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).     Evidence of this kind, however,

15   is not dispositive in these fact-intensive cases.

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.   See In re Filipczak, 838 F. Supp. 2d 174,

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-


                                       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).   In this case, the district court found that, while

 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        We have held that Article 13(b) relief could be granted if

 9   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).   The holding in Blondin IV depended on the fact, due to the

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.    In this case, there is

19   nothing in the record beyond speculation that Shayan would suffer

20   unavoidable psychological harm if returned to Singapore.    Neither

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


                                        14
 1   child, who seemed distressed about the difficulties between his

 2   parents.   Shayan expressed unqualified love for both parents and

 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.     In

 8   contrast, the girl in Blondin IV had herself been abused and

 9   expressed fear of her father.

10        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.   See Khan v. Fatima, 680 F.3d 781, 787 (7th

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


                                      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).     In distinguishing the

 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.   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.   At the hearing, the district court heard the

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.       On this


                                      16
 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.   Dr. Cling’s assessment of Souratgar was based entirely on

 4   Lee’s answers to a survey, which the district court found to

 5   contain inaccuracies.    The district court therefore discredited Dr.

 6   Cling’s conclusions.    Our review of the record yields no basis for

 7   disagreement with the district court’s finding.5    For us to hold

 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

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.   Simcox, 511 F.3d 594 at 604.   Our holding today

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
          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.

 5                    2.   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.   In support of this assertion, amici cite the

 9   description of the “coercive control” type in the social science

10   literature that draws certain correlations between perpetrators of

11   spousal abuse and child abuse.   However, given the problems with Dr.

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                    3.   “Grave risk” arising from loss of the mother

18        Lee also posits various scenarios in which the boy would be

19   deprived of his mother post-repatriation.     She claims Souratgar may

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
 1   Malaysia.   The district court dismissed these claims as lacking

 2   factual support.

 3        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.     Since the Convention defers the determination of

 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

10   to the child.    Thus, the possible loss of access by a parent to the

11   child does not constitute a grave risk of harm per se for Article

12   13(b) purposes.    See Charalambous, 627 F.3d at 469 (“[T]he impact

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)).     But even assuming that the prospect of

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                          a. Loss of custody through Syariah Court
21                             proceedings
22        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.   Lee has not shown, however, that the question of

 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.    If anything, the record is to the contrary.      Lee

 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.    Furthermore, her aspersions on Syariah

 9   proceedings in Singapore are inconsistent with her consent in

10   February 2012 to have custody decided by that court.

11        Moreover, the Singapore Syariah Court has pendant, not

12   exclusive jurisdiction, to hear child custody matters among Muslim

13   couples.   By statute, divorce actions between individuals of the

14   Muslim faith, a religious minority in Singapore, must be brought in

15   the country’s Syariah Court.   Administration of Muslim Law Act

16   (“AMLA”) § 35(2)(b)(2013)(Sing.).      But any party to a divorce

17   proceeding before the Syariah Court may apply for leave to have

18   custody decided by a secular court.      Id. § 35A(1)&(2).   And when

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).    Souratgar has committed to pursue any custody

22   proceedings, upon repatriation, in Singapore’s civil courts.        Even

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


                                       20
 1   transfer the custody determination from the Singapore Syariah Court

 2   under AMLA § 35A(1).    In light of these options, we cannot fault

 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

 6                          b.   Risk of father’s flight to Iran

 7        Lee also claims that Souratgar will abscond with Shayan to

 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.   The district court, however, found no credible

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.   See Charalambous, 627 F.3d at 469 (denying relief

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).    We cannot fail to observe, moreover, that

     6
          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.

 3                         c.    Apostasy

 4        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.    This claim is based on the testimony of Yasmeen Hassan,

 8   Lee’s expert witness on Islamic law, who testified that apostasy is

 9   punishable by death in Malaysia.    The claim distorts both the facts

10   and law.    Souratgar did not accuse Lee of leaving the faith.   In

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.    Additionally,

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).    Hence, there is

22   no indication that Lee could even be charged with apostasy in

23   Malaysia, much less face the death penalty.



                                        22
 1                D.   Lee’s Article 20 defense

 2        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.”    U.S. State Dep’t, Hague International Child

 6   Abduction Convention: Text and Legal Analysis, Pub. Notice 957, 51

 7   Fed. Reg. 10,494, 10,510 (Mar. 26, 1986).      The article is to be

 8   “restrictively interpreted and applied.”      Id.   Article 20 is a

 9   “unique formulation” that embodies a political compromise among the

10   states that negotiated the Convention, which “might never have been

11   adopted” otherwise.     Id.   The defense is to be invoked only on “the

12   rare occasion that return of a child would utterly shock the

13   conscience of the court or offend all notions of due process.”        Id.

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.”      Id.   We note that this

17   defense has yet to be used by a federal court to deny a petition

18   for repatriation.     Fed. Jud. Ctr., The 1980 Hague Convention on the

19   Civil Aspects of International Child Abduction: A Guide for Judges

20   85 (2012).

21        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.   Given

 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   51 Fed. Reg. 10,510

 9   (Mar. 26, 1986).

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.”   Blondin II, 189 F.3d at 242.    In the

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.”    Id. at 248-49; cf.

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
          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        For all of the above reasons, we conclude that the district

 5   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.   For the foregoing reasons, the district

 9   court’s grant of Souratgar’s petition for his son’s repatriation is

10   AFFIRMED.




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