Lawyers Manual - Unified Court System

Civil Aspects of International Child Abduction and Abused Mothers 135
intolerable situation.” The party opposing the return has the burden of proof and
must demonstrate the applicability of the 13(b) exception by clear and
convincing evidence. Because the Hague Convention does not provide a
definition for what constitutes “grave risk,” it is important to examine judicial
interpretation of the 13(b) exception.
Traditionally, US courts have interpreted the 13(b) exception very narrowly.
The Second Circuit has stated:
A “grave risk” exists in only two situations: (1) where returning
the child means sending him to “a zone of war, famine, or
disease”; or (2) “in cases of serious abuse or neglect, or
extraordinary emotional dependence, when the court in the
country of habitual residence, for whatever reason, may be
incapable or unwilling to give the child adequate protection.” 14
Recently, however, despite the traditionally narrow interpretation of the
13(b) exception, the Second Circuit, has found grave risk in a number of cases
in which mothers have fled abusive partners.
In Blondin v. Dubois, a leading case that resulted in four published
decisions, 15 Marthe Dubois fled from France to the United States with her two
children, Marie-Eline (age eight) and Francois (age four), to escape her abusive
husband, Felix Blondin. The district court found that Blondin had repeatedly
abused Dubois throughout the course of their relationship and had also beat
Marie-Eline, twisted an electrical cord around her neck, and threatened to kill her.
On two other occasions, Dubois had attempted to leave Blondin, fleeing to a
battered women’s shelter for a total of approximately nine months. The district
court held that the 13(b) grave risk exception applied and denied return of the
children because return “would present a ‘grave risk’ that they would be exposed
to ‘physical or psychological harm’ or that they would otherwise be placed in an
‘intolerable situation.’ ” 16 On appeal, the Second Circuit, although in agreement
with the district court’s finding of grave risk, remanded for consideration of
“whether other options are indeed available under French law — options that may
allow the courts of the United States to comply both with the Convention’s
mandate to deliver abducted children to the jurisdiction of the courts of their home
countries and with the Convention’s command that children be protected from the
‘grave risk’ of harm.” 17 On remand, the district court not only considered and
rejected other options by which the children could be safely returned to France,
but also relied on uncontroverted expert testimony from a child psychologist that
returning the children to France would likely trigger severe symptoms of post-