Lawyers Manual - Unified Court System

108 Liberty Aldrich and Lauren Shapiro
Courts in New York and other states have applied the “grave risk” exception
based on evidence of domestic violence. In In Re Rodriguez, 41 there was
evidence of physical and psychological abuse of one of the two children and of
the mother by the father; a psychologist testified that both children and the
mother suffered from Post Traumatic Stress Disorder as a result of the father’s
actions. In Blondin v Dubois42 the father frequently hit and threatened to kill the
mother and one of the two children. In this case, too, there was expert testimony
that both children suffered from psychological trauma and would be further
traumatized if returned to France, the country from which the mother had fled.
In Walsh v Walsh43 the First Circuit Court of Appeals went even further and
held that evidence of spousal abuse was enough to trigger Article 13(b)’s grave
risk exception, even without taking into consideration evidence that violence
had been directed at the children, because the father had “demonstrated an
uncontrollably violent temper.” According to the court, the social science
literature indicated that “serial spouse abusers are also likely to be child
abusers,” and the court added that “both state and federal law have recognized
that children are at increased risk of physical and psychological injury
themselves when they are in contact with a spousal abuser.” 44 The court stated
that it was fundamental error for the district court to discount “the grave risk of
physical and psychological harm to children in cases of spousal abuse.” 45
International Parental Kidnaping Act
The rights of a client with children fleeing an abuser or a client fearing
abduction of her children may also be affected by the federal international
Parental Kidnapping Act. This law makes it a crime to remove a child from the
US or retain a child outside the US with the intent to obstruct the lawful exercise
of parental rights. Violators are subject to a fine and imprisonment up to three
years. A parent fleeing an incident or pattern of domestic violence, however,
may use the abuse as an affirmative defense to prosecution under this statute.
Escaping Violence: What to Consider
When Advising Your Client
In New York State, courts assume, absent evidence to the contrary, that it is
in the child’s best interest to have a close relationship with both parents;
therefore, relocating any distance from the other parent is generally discouraged.
Although courts are obligated to consider proven domestic violence, you will
find that this de facto presumption against relocation pervades New York