Case Update (2020): Re: JCC v. LC; Hague Abduction return, high burden for proving a grave risk, no testimony by mature child

The U.S. District Court for the District of New Jersey ordered 2 children returned to El Salvador on October 30, 2020 in the case of Re: JCC v. LC (Civil Action No. 19-21889).  There are a few interesting statements by the court worth mentioning in a blog post. 

First, the Court, at no point, cites to Monasky when elaborating on its conclusion that El Salvador was the children's habitual residence.  The Court specifically said it applied the Third Circuit's definition of habitual residence, without elaborating on the standard.  It did provide reference to some facts, including the children's typical residence, the existing El Salvador custody order, the return airline ticket, and the parents' intentions, so in many regards, this has the indicia of a totality-of-the-circumstances analysis, nonetheless.

Second, the court rejected the Respondent Mother's contention that the Father was abusive and it would be a grave risk to return the children.  In weighing the evidence, the Court said the following: "Respondent has testified that the Children wish to stay in the United States, but she has not entered into evidence any police reports, contemporaneous medical reports, or eyewitness testimony to corroborate the alleged physical abuse that occurred in Florida and El Salvador.  Respondent cannot meet her evidentiary burden with testimony and undated photographs alone when the record shows that she allowed the Children to stay with Petitioner multiple times in the year following her alleged discovery of the Children's abuse, for unsupervised stretches of time ranging from overnight hotel stays in the U.S. to a month-long stay in El Salvador.  Such actions are not consistent with her testimony that repatriation is a grave risk to her Children's safety."  This clearly demonstrates the high evidentiary burden to prove this exception.

Finally, the eldest child is age 15, and apparently stated a "preference" for the United States.  The court seemed to take notice of this preference, but used its discretion to nonetheless return the children.  What is most interesting is that apparently there was a request for the court to interview the 15-year-old, and the court declined, saying, "[t]his Court declined to hear testimony from the Children at the October 20, 2020 evidentiary hearing as it would have been redundant, needlessly harmful to the Children, and potentially influenced by Respondent."