Lawyers Manual - Unified Court System

136 Betsy Tsai
traumatic stress disorder. The court declined to order the return of the children. 18
As part of its grave risk analysis, the district court also considered that the
children were well settled in their new environment and that Marie-Eline objected
to return. On further appeal, the Second Circuit affirmed. 19
In another important case, Elyashiv v. Elyashiv, 20 Iris Elyashiv fled from
Israel to the United States with her three children to escape, in the words of the
court, “severe domestic violence.” Mr. Elyashiv, a martial arts instructor who
kept three swords and a gun in the house, verbally and physically abused Ms.
Elyashiv throughout the course of their marriage, beating her, attempting to
strangle her, and threatening to kill her if she left him. The court also found that
Mr. Elyashiv physically abused the two older children, hitting them with a belt,
shoes, or his hand approximately once or twice a week. As in Blondin, the court
relied on the uncontroverted expert testimony of a child psychiatrist who said
that returning the children would result in “a full-blown relapse of their [posttraumatic
stress disorder] symptoms.” After also finding that the children were
well settled in the United States and that “there are no alternative arrangements
that could effectively mitigate the grave risk” to the children if they were
returned to Israel, the court concluded that the 13(b) grave risk exception
applied, and the father’s petition for return of the children under the Hague
Convention was denied.
Finally, in Reyes Olguin v. Cruz Santana, Maria del Carmen Cruz Santana
fled from Mexico with her two children to escape her abusive husband, Noel
Stalin Reyes Olguin. Throughout the course of their relationship, Reyes Olguin
would beat Cruz Santana, sometimes in front of the children; he attempted to
throw her down the stairs and insisted on two occasions that she get an abortion,
beating her when she refused to comply. After first arguing unsuccessfully that
the court had no jurisdiction to hear the case because the father did not have
custody of the children, Cruz Santana established that the 13(b) grave risk
exception applied, and the court declined to return the children to their father’s
abusive household in Mexico. 21 As part of its grave risk analysis, the court not
only considered the expert testimony of a child psychiatrist, but also looked at
whether the children were well settled into their new environment and whether
the children objected to returning to their country of habitual residence. Then, in
keeping with Blondin IV, the court here also looked at “whether any
ameliorative measures might mitigate the risk of harm to the child and allow
him to return safely pending a final adjudication of custody.” Finding no
sufficient measures existed in Mexico to mitigate the grave risk of harm to the
children, the court denied the petition and declined to return the children.