Case Update (2020): Grano v. Martin; Hague Abduction Convention, Habitual Residence, Grave Risk & Undertakings

The U.S. Court of Appeals for the 2nd Circuit recently affirmed a return order issued pursuant to the Hague Abduction Convention in the Grano v. Martin matter.  The Respondent Mother appealed on three points.  

First, she argued that the trial court misapplied the Monasky v. Taglieri test in deciding that the minor child was habitually resident in Spain.  The 2nd Circuit disagreed.  Monasky requires the trial judge to apply a totality-of-the-circumstances test when determining a child’s habitual residence.  It also determined that the trial judge’s decision would only be overturned upon a showing of clear error.  The 2nd circuit elaborated on several facts that lead the trial judge to find Spain was this child’s habitual residence, including purchases of real estate, registering the child as a Spanish citizen, finding a school for the child, and traveling to Spain in 2017 on a one-way ticket.

Second, the Respondent Mother argued that the trial judge was wrong to find that there was no grave risk in returning the child.  At trial, it was Respondent’s burden to prove, by clear and convincing evidence, that the minor child would be placed in a grave risk if returned to the habitual residence.  The evidence showed that the Petitioner Father was psychologically abusive towards the Respondent Mother on numerous occasions, grabbed her arm on one occasion, and exerted coercive control over her, but did not find a grave risk to the child.  The 2nd Circuit has noted that “[s]pousal violence can also create a grave risk of harm to the child” but only if it “seriously endangers the child.”  The trial judge did not err in declining to invoke the grave risk exception.

Third, and finally, the Respondent Mother argued that the trial judge was wrong to not impose undertakings to ensure the child would be safe when returned to Spain.  The 2nd Circuit found that the trial judge, particularly in that it did not invoke the grave risk exception, did not abuse its discretion to decline to issue undertakings.   The trial judge specifically expressed confidence in the courts of Spain to appreciate the issue of domestic abuse in this case.