December 7, 2016
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. l:15-cv-11460 -
Sharon Johnson Coleman, Judge.
Bauer and Flaum, Circuit Judges, and Shadid, Chief District
Court Judge [*]
Shadid, Chief District Court Judge.
tiff-Appellant John Erickson Coahuila Hernandez
("Hernandez") and Defendant-Appellee Irma Benitez
Cardoso ("Cardoso") are both citizens of Mexico.
They met sometime in 2001 and began cohabitating sometime
later that year. They resided in Mexico until December 15,
2014. They are the biological parents of two children: A.E.,
born in 2008, and M.S., born in 2002.
claims to have left Mexico with A.E. and M.S. in December of
2014 to escape abuse from Hernandez and protect the children.
Subsequently, Hernandez learned of Cardoso's location in
Chicago, Illinois, and on July 17, 2015, filed an application
with the Mexican Central Authority for the return of A.E.
pursuant to the Hague Convention on the Civil Aspects of
International Child Abduction (hereinafter, "the
Convention"). The Mexican Central Authority transmitted
Hernandez's Application to the United States.
August of 2015, Cardoso agreed to return M.S. to Hernandez.
Hernandez also requested the return of A.E. but Cardoso
December 18, 2015, Hernandez filed a Verified Petition for
Return of Minor Child to Mexico and Issuance of a Show Cause
Order. On February 29, 2016, the District Court held an
evidentiary hearing, at which Hernandez, Cardoso and Alma
Cardoso, Cardoso's sister, testified. Following the
testimony of all witnesses, the Court sua sponte,
and without objection from either party, took testimony from
the child, in chambers, and outside the presence of counsel
or the parties. After questioning of the child, the District
Court allowed both parties until March 14, 2016, to file
objections to any questions posed to the child. Neither party
filed any such objections.
the evidentiary hearing, the District Court allowed briefing
and then entered its Order on July 13, 2016. In its Order,
the District Court found that Cardoso testified credibly that
Hernandez would hit her in the presence of A.E. with the
intention of having A.E. witness the abuse of his mother. The
District Court also specifically noted it observed a
significant change in the demeanor of A.E. when the child
discussed Hernandez, the domestic violence and the possible
return to Hernandez's custody. The District Court found
that Cardoso and AE's testimony about the domestic
violence, taken as true, provides clear and convincing
evidence that there is a grave risk of physical or
psychological harm to A.E. if he is returned to
Hernandez's custody. This appeal followed.
Hague Convention "was adopted in 1980 in response to the
problem of international child abduction during domestic
disputes." Abbott v. Abbott, 560 U.S. 1, 8
(2010). "The United States is a contracting state to the
Convention, and Congress has implemented its provisions
through the International Child Abduction Remedies Act
(ICARA) ... 42 U.S.C. § 11601 et seq." 560
U.S. at 5. As the Court noted in Abbott, "[t]he
Convention provides that a child abducted in violation of
'rights of custody' must be returned to the
child's country of habitual residence, unless certain
exceptions apply. Art. 1 S. Treaty Doc. No. 99-11, at
7." 560 U.S. at 5. The intention of the Hague Convention
is "to secure the prompt return of children wrongfully
removed to or retained in any Contracting State ... to ensure
that rights of custody and of access under the law of one
Contracting State are effectively respected in the other
Contracting States. Art. 1, Treaty Doc. at 7."
Abbott, 560 U.S. at 7.
instructs a person who seeks a child's return to file a
petition in state or federal court and further instructs the
court hearing the case to decide it in accordance with the
Hague Convention. See 42 U.S.C. §§
11603(a), (b), (d). The elements to the prima facie
cause of action for return are: the child was wrongfully
removed or retained; the child was removed from his or her
habitual residence; there was a breach of the rights of
custody under the law of the child's habitual residence;
the left-behind parent was exercising those custody rights;
and the child is under the age of sixteen. If the child in
question has been wrongfully removed or retained within the
meaning of the Convention, the child shall be promptly
returned unless an exception is applicable. See 42
U.S.C. § 11601(a)(4).
Hague Convention sets forth several affirmative defenses. The
affirmative defense relevant to this proceeding is a grave
risk of exposure to serious physical or psychological harm.
Article 13(b) provides that "when there is a grave risk
that the child's return would expose the child to
physical or psychological harm or otherwise place the child
in an intolerable situation, the automatic return required by
the Convention should not go forward." Norinder v.
Fuentes, 657 F.3d 526, 533 (7th Cir. 2011). Here,
Cardoso admits that Hernandez did not agree that she could
permanently relocate the United States with the children.
Cardoso did not dispute that Hernandez established a
prima facie case for wrongful removal, the District
Court correctly limited its findings to the "grave risk
of harm" exception raised by Cardoso.
Court reviews the District Court's findings of fact for
clear error. Norinder, 657 F.3d at 533. Rule
52(a)(1) of the Federal Rules of Civil Procedure requires the
judge to "find the facts specially and state ...