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Case Commentary: Vieira v. De Souza, 22 F.4th 304 (1st Cir. 2022)

James D. Garbolino
February 9, 2023

Grave Risk Defense | Child’s Objection to Return | Role of Trial Court

In this case, after being left in the father’s care for two years, a child was removed from Brazil by his maternal aunt and taken to Massachusetts to live with his mother.


The First Circuit affirmed the district court’s order for return of the child. There was not clear error in the district court’s finding that a grave-risk defense was not supported by the evidence. The mother also failed to present evidence that the seven-year-old child was sufficiently mature for the court to consider of his preference to remain in the United States.


The father, a Brazilian national, and the mother, an American citizen, were involved in a romantic relationship. Their child, S.V., was born in January 2014. Their eleven-year relationship included frequent breakups and reconciliations. The mother testified about multiple incidents where the father verbally threatened and abused her, and about her psychological treatment to address these issues. She described one incident in 2017 where the father grabbed the child and placed him in the car, then drove recklessly while threatening the mother. This incident precipitated the mother’s receiving a restraining order from a Brazilian court. When the mother and father reconciled, the order was revoked. In December 2018, the mother moved to Massachusetts, leaving the four-year-old child in the father’s custody. There were no formal custody orders. In November 2020, almost two years later, without the father’s consent, the child’s maternal aunt took him to Massachusetts to live with the mother. Upon the child’s arrival, the mother contacted the father and told him that the child would not be returning to Brazil. The father filed a petition for return in April of 2021.

The district court granted the father’s petition for return of the child to Brazil. The mother appeared pro se and testified at trial that if returned to Brazil, the child would be subject to a grave risk as the result of the father’s violent behavior toward her and toward his own mother. The mother did not introduce evidence that the child was threatened or abused by the father. In her closing argument before the trial court, the mother also argued that the child wanted to remain in Massachusetts with her and would so testify were he asked. But the mother did not introduce evidence that the child had attained the sufficient age or maturity required for this defense.


Grave Risk Defense. The First Circuit noted that the Article 13(b) defense of grave risk is narrowly construed, consistent with the Hague Convention’s “strong presumption of in favor of return.”[1] The mother presented evidence that the father had verbally abused and threatened her, broken her phone, and forced her to have an abortion. She also testified that during an incident when the father was threatening her, he drove recklessly while the child was in the car. The district court found that there was no evidence that the father abused the child and no evidence that the child suffered from psychological harm because of the father’s abuse of the child’s mother.[2] The court rejected the mother’s grave-risk defense. Affirming this conclusion, the First Circuit observed that the degree of abuse the mother alleged did not rise to the level implicated in Walsh v. Walsh,[3] and also noted that the mother did not claim that the child was harmed during the two-year period that the child was in the father’s sole custody.

Mature-Child Objection. On appeal, the mother argued that the trial judge erred by not interviewing the child or appointing a psychologist to represent the child’s interest. Because she appeared pro se, the trial court had a duty to be more solicitous of her arguments, even if she presented her arguments in an incomplete or oblique manner. The First Circuit rejected this argument. “[A] district court should not ‘assume the role of advocate for the pro se litigant,’ and may ‘not rewrite a petition to include claims that were never presented.’”[4] The trial court’s role is that of a fact finder.[5] The First Circuit agreed with the trial court’s finding that the mature-child issue had not been raised effectively.[6] The mother had the burden of proof to show that the child was sufficiently mature to voice an objection, and she failed to meet this burden.

The First Circuit concluded that the district court did not commit clear error in its finding that grave risk was not supported by the evidence.

[1]. Vieira v. De Souza, 22 F.4th 304, 309 (1st Cir. 2022).
[2]. The First Circuit referenced this finding, giving as an example the decision in Whallon v. Lynn, 230 F.3d 450, 460 (1st Cir. 2000) (verbal and physical abuse of a mother not directed at the child failed to amount to the type of psychological harm governed by Article 13(b)). Vieira, F.4th at 310.
[3]. 221 F.3d 204 (1st Cir. 2000).
[4]. Vieira, 22 F.4th at 311 (citing Barnett v. Hargett, 174 F.3d 1128, 1132 (10th Cir. 1999), quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), and then quoting Parker v. Champion, 148 F.3d 1219, 1222 (10th Cir. 1998), cert. denied, 525 U.S. 1151 (1999)).
[5]. Id. at 310 (citing Taglieri v. Monasky, 907 F.3d 404, 408 (6th Cir. 2018) (“[W]e must let district courts do what district courts do best—make factual findings . . . .”), aff’d, 140 S. Ct. 719 (2020).
[6]. Id. at 311–12.