International Family Law--The Balancing Act of the Grave Risk of Harm Exception Under the Hague Convention of Civil Aspects of International Child Abuse--Ermini v. Vittori, 758 F.3d 153 (2d Cir. 2014).

• Author: Sutherland, Christine

International parental child abduction consists of the removal of a minor child from their home without the consent of one or both of the child's parents or legal guardians. (1) The United Nations created the Hague Convention on Civil Aspects of International Child Abduction (Hague Convention) in response to growing concerns over child abductions, the difficulty in locating the abducted child, and the constant struggle of conflicting judicial implementation and foreign enforcement. (2) In Ermini v. Vittori, (3) the United States Court of Appeals for the Second Circuit addressed, as a matter of first impression, whether severe forms of physical and psychological harm arising from separating a child from autism treatment are sufficiently serious to trigger the Hague Convention's grave risk of harm exception. (4) The Second Circuit held that the result of an autistic child being separated from autism treatment was grave enough to deny return back to a home state. (5)

Emiliano Ermini and Viviana Vittori, both Italian citizens, were married in 2011.6 The couple has two sons together: Emanuele Ermini, ten years old, and Daniele Ermini, nine years old. (7) The family moved to the United States in August of (2011) to seek more appropriate treatment for Daniele, who has autism. (8) The family intended to remain in the United States for a period of two to three years, but with the potential of permanent relocation, depending on the status and improvement of Daniele's treatment. (9) Upon arriving to the United States, Daniele began therapy through a Comprehensive Application of Behavioral Analysis to Schooling (CABAS) program in New York. (10)

Emiliano not only abused his wife, but was also "in the habit of striking the children." (11) This violence climaxed on December 28, 2011, when Emiliano hit Viviana's head against a kitchen cabinet and continued to suffocate and strangle her. (12) This incident occurred in front of the children. (13) After deciding she was finished with the tumultuous relationship, Viviana obtained a temporary order of protection for herself, Emanuele, and Daniele. (14) While Viviana remained in the United States with the two children, Emiliano began divorce proceedings in Italy in April of 2012. (15) During the unfolding of the custody dispute, Emiliano filed a petition pursuant to the Hague Convention, asking for the return of his two sons to Italy. (16)

The district court made several determinations about both children and their progress in the United States. (17) The district court found that Emanuele did not want to return to Italy because he feared his father and he favored his schooling in the United States. (18) Additionally, the court found that Daniele was receiving therapy in New York from the best program available at that time. (19) Daniele benefited from the expansive resources that the CABAS program offered and made significant progress while enrolled in the program. (20) The district court held that Viviana proved, by clear and convincing evidence, that returning her two sons to Italy would put the children at a grave risk of being exposed to physical or psychological harm. (21) Consequentially, the Second Circuit held that Emiliano's petition was denied, as a result of the potential grave risk of harm suffered by the children if they returned to Italy. (22)

The Hague Convention, formed by the United Nations in 1980, aimed to discourage parents who lost, or would eventually lose, custody battles from abducting their children to another state. (23) The two-pronged objective of the Hague Convention is to ensure the speedy return of a child wrongfully removed from his or her habitual residence, and to ensure the child will not be returning to a situation in which there is a grave risk that return would expose the child to physical or psychological harm, or otherwise place them in an intolerable situation. (24) The United Nations formed the Convention in hopes to mediate the contrary ways that countries handled custody issues and to create a uniform standard for foreign countries to abide by. (25) Drafters initially classified parental child abductors as significantly non-custodial fathers; however, over time the face of abductors has radically changed to include mothers, many of who are trying to escape domestic violence situations. (26) Presently over sixty-eight countries have ratified the multilateral treaty, including the United States, in which the International Child Abduction Remedies Act (ICARA) implements the Hague Convention. (27) Additionally, the Hague Convention is meant not only to protect children abducted to the United States, but also to protect children abducted from the United States and transported to other nations, who according to this Convention, are expected to offer reciprocal protection. (28)

Once a plaintiff establishes that the removal of the child was wrongful, the child must be returned unless the defendant can establish one of four defenses, including if "there is a grave risk that the return of the child would expose him to physical or psychological harm." (29) Several appellate courts have recently decided cases concerning the grave risk defense under the Hague Convention. (30) In the past, the grave risk exception was meant to be narrow. (31) The courts considered not only the magnitude of the potential harm, but also the likelihood that the harm would occur. (32) In Thompson v. Thompson, (33) the court held that the exception applied only to harm "that also amounts to an intolerable situation." (34) Moreover, evidence of spousal abuse, child abuse, or psychological harm to the child may ignite the proper use of the grave harm exception. (35) Conversely, courts have held that infrequent or isolated incidents of physical discipline have not been found to constitute a grave risk. (36)

Furthermore, the State Department has weighed in concerning the grave harm exception of the Hague Convention. (37) The State Department notes defendants may not use the grave harm exception to "litigate or relitigate the child's best interests." (38) Additionally, the court may only look at the evidence that is material to establishing that the child will be exposed to physical or psychological harm; the court may not consider extrinsic circumstances such as the return to a home where money is tight, or where educational or developmental opportunities are minimal. (39)

In Ermini v. Vittori, the Second Circuit Court of Appeals considered whether separating a child from autism therapy would cause physical and psychological harm grave enough to trigger an affirmative defense under Hague Convention Article 13(b). (40) The Court considered many relevant factors when trying to establish whether Viviana met the burden attached to the grave risk of harm defense. (41) The Court followed several precedential decisions, which specified that a grave risk of harm exists when there is "... a risk of being hurt, physically or psychologically," that the potential harm "must be severe," and that there must be a "probability that the harm will materialize." (42) The Second Circuit looked at both the history of domestic abuse towards Viviana and the two children, as well as the magnitude of harm if Daniele were to be removed from his autism treatment in the United States. (43)

In assessing whether Emiliano's history of violence triggered the grave risk of harm defense, the Court assessed the district court's findings and concluded that Emiliano engaged in a "sustained pattern of physical abuse" directed at Viviana and the two children, consequentially causing the children to fear their father. (44) Therefore, the Court followed precedent concerning physical and domestic abuse and held, contrary to the district court's holding, that the facts surrounding the abuse were alone sufficiently grave to meet the Hague Convention's exception. (45) Furthermore, the Court considered whether Daniele faced a grave risk of harm if removed from his autism therapy in the United States. (46) The Second Circuit further relied on Dr. Fiorile's unrebutted testimony stating that if Daniele left the CABAS program, he would face severe regression and stagnancy in his language, social, emotional, and independent living skills. (47) Additionally, the Court concluded that the probability that the harm would materialize would be extremely great because there is no equivalent CABAS program in Italy. (48) Moreover, the Court decided that because of the children's close relationship, returning only one child to Italy, resulting in their separation, would be harmful. (49) Taking all these factors into account, the Second Circuit held that both children would...