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Gomez v. Fuenmayor (Case Analysis)

James D. Garbolino
March 4, 2016

Gomez v. Fuenmayor, 812 F.3d 1005 (11th Cir. 2016)

Grave Risk | Domestic Vio­lence

Even though the child was not directly harmed by violent conduct against a parent and his or her family, the child may be subjected to grave risk of physical and/or psychological harm as a result of that violence.

Facts

Mother petitioned for the return of her four-year-old daughter to Venezuela. Mother, father, and the child are all citizens of Venezuela. The dis­trict court found that Venezuela was the child’s ha­bi­tu­al re­si­dence but that an Article 13(b) de­fense (grave risk of physical or psychological harm) had been es­tab­lished by father, and mo­ther’s petition for return to Ve­ne­zuela was de­nied. The Eleventh Cir­cuit affirmed.

Discussion

The evidence of grave risk in this case consisted of mother’s acts of violence directed toward father, his girlfriend, his mother, and other members of his family. The violence included (1) verbal threats by mother to kill father, (2) a shooting attack on a car driven by father’s girlfriend (after she had dropped off father, his sister, and the child) resulting in father’s girlfriend being wounded in three places, (3) an attack directed at father’s parents’ home (4) two instances of drugs being planted in the car of the child’s paternal grandmother, and (5) five instance of armed men showing up at a school where father’s sister worked, seeking information concerning her and father’s whereabouts. Despite the existence of a non-removal order from a Venezuelan court, father left Venezuela with the child in February 2014. The district court found that the acts of violence by mother and her husband directed toward father and the members of his family placed the child in a situation involving a high risk of danger even though the violence was not directed toward the child.

Relying on its own holding in Baran v. Beaty[1] and on decisions from the First, Second  and Seventh Circuits,[2] the court held that violence directed toward a parent may give rise to a grave risk defense where that violence may “threaten the well-being of a child.”[3] The court further noted that “as we held in Baran, the inquiry under the Con­ven­tion is not whether the child had previously been harmed. Rather, the question is whe­ther returning the child to Venezuela would expose her to a grave risk of harm going for­ward.”[4]

The court distinguished the mother’s reliance on cases wherein courts held that the ex­ist­ence of domestic violence directed only toward a parent was insufficient to support a 13(b) defense.

The court focused not only on the aspects of physical danger to the child that resulted from mother’s violent campaign against father, but also noted the potential psy­cho­lo­gi­cal impact as well:

Even setting aside the risk of physical harm, the Convention’s exception also ap­plies to the grave risk of psychological harm. It seems almost self-evident that a child raised in an environment where one parent is engaged in a sustained cam­paign of violence (including the use of deadly force) against the other parent faces just such a grave risk.[5]

 

[1]. 526 F.3d 1340 (11th Cir. 2008).
[2]. See generally Ermini v. Vittori, 758 F.3d 153, 164 (2d Cir. 2014); Walsh v. Walsh, 221 F.3d 204 (1st Cir. 2000); Van De Sande v. Van De Sande, 431 F.3d 567 (7th Cir. 2005).
[3]. Gomez, 182 F.3d 1005, 1013.
[4]. Id. at 1015.
[5]. Id.

 

This document is part of The 1980 Hague Convention on International Child Abduction: A Resource for Judges, a Special Topic Webpage.