United States Court of Appeals
For the First Circuit
No. 10-2227
SAVVAS CHARALAMBOUS,
Petitioner, Appellee,
v.
ELIZABETH ROHNERT CHARALAMBOUS,
Respondent, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Lynch, Chief Judge,
Lipez and Howard, Circuit Judges.
Judy Potter for appellant.
David S. Abramson, with whom Adrianne E. Fouts was on brief,
for appellee.
December 8, 2010
Per Curiam. Savvas Charalambous filed a petition for the
return of his two children, A.C. and N.C., to Cyprus pursuant to
the Hague Convention on the Civil Aspects of International Child
Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, which was implemented
by the International Child Abduction Remedies Act (ICARA), 42
U.S.C. § 11601 et seq. The children were removed in June 2010 from
Cyprus, their country of habitual residence, to the United States
by their mother, Elizabeth R. Charalambous. She did not return the
children to Cyprus before September 2010 as she had represented she
would. She defended against the petition primarily on the ground
that returning the children would expose them to a grave risk of
harm, an exception to return under Article 13(b) of the Convention.
Following a two-day evidentiary hearing, the district
court held that there was not clear and convincing evidence of a
grave risk of harm to the children, and that the Convention
required their return. The court ordered the children placed in
their father's custody no later than October 20, 2010--a date later
postponed to November 2, 2010--and ordered certain interim
conditions. In an October 28, 2010 Order, this court stayed the
removal of the children pending the outcome of respondent's appeal,
but expedited the appeal. The court heard oral argument on
December 7, 2010.
We now lift the stay, and affirm, finding no error of law
by the district court and holding that its findings and conclusions
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are well supported. We order that the children be placed in the
custody of the father no later than December 9, 2010 at 12:00 p.m.
for their return to Cyprus, and we return jurisdiction to the
district court should any further orders be necessary to secure
enforcement.
I.
We briefly summarize the facts that led to the present
appeal, taking them from the record of proceedings before the
district court. We refer to the parents by their first names and
to the children by their initials.
Savvas, a citizen of Cyprus, married Elizabeth, a citizen
of the United States, in a civil ceremony in Virginia in 1996, and
again in a religious ceremony in Cyprus in 1998. The couple has
resided in Limassol, Cyprus since December 1997, save for a few
months in 2004 during which Elizabeth and Savvas briefly separated
and Elizabeth returned on her own to her parents' home in Maine.
They have two children: N.C., born in 2002, and A.C., born in 2008.
On June 18, 2010, Elizabeth, N.C. and A.C. departed
Cyprus for a summer visit to Elizabeth's family in Maine.
Elizabeth had purchased return tickets to Cyprus, and Savvas
expected Elizabeth and the children to return in August 2010.
By July 2010, Savvas came to believe Elizabeth would not
return to Cyprus with the children as planned, based on her failure
to provide the children opportunities to speak to their father, the
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infrequent nature of her communications with him, and what she said
when she did communicate. These beliefs were confirmed when
Elizabeth informed Savvas on July 23, 2010 that she and the
children would not be returning as planned. Consequently, on July
26, 2010, Savvas filed an application for return of his children
under the Hague Convention with the Central Authority in Cyprus.
Savvas then filed a petition in the District of Maine on September
3, 2010, alleging that Elizabeth had wrongfully retained N.C. and
A.C. in the United States, and seeking the return of the children
to Cyprus pursuant to the Hague Convention and ICARA.
The district court promptly held an evidentiary hearing
on October 6 and 7, 2010. Both Savvas and Elizabeth testified in
person; the court heard evidence by video from other witnesses in
Cyprus. On October 12, 2010, in a careful and sensitive opinion,
the court entered its Findings of Fact and Conclusions of Law,
granting Savvas's petition, and ordering the children returned to
the custody of their father by October 20, 2010. See Charalambous
v. Charalambous, No. 10-CV-375, 2010 WL 4115495, at *12 (D. Me.
Oct. 12, 2010). The court concluded that Elizabeth had wrongfully
retained the children in Maine and that Elizabeth had failed to
prove either that Savvas had consented or acquiesced to the
retention or that the children faced a grave risk of physical or
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psychological harm if they were returned to Cyprus.1 Id. at *9-11.
We discuss the relevant findings in more detail in the next
section.
The court also ordered that, until the return, Elizabeth
not remove the children from the District of Maine without approval
of the court, and that the parties "shall seek a determination as
soon as possible from a court of competent jurisdiction in Cyprus
regarding the custody, support, and visitation with respect to the
children." Id. at *12. The court ordered the return of N.C.'s and
A.C.'s passports upon receipt of an affidavit from either Savvas or
Elizabeth that they would be used solely for the purpose of travel
to Cyprus. Id. The court clarified that its order in no way
precluded an independent custodial determination by an appropriate
authority in Cyprus. Id.
On October 15, 2010, Elizabeth filed both a Motion to
Stay the Judgment and a Motion to Extend Time Within Which to Turn
Over Children so that she might pursue an appeal. On October 18,
2010, the district court denied Elizabeth's Motion to Stay, and
granted the Motion to Extend Time. The court reset the deadline
for Elizabeth to return N.C. and A.C. to Savvas to November 2,
2010.
1
The court determined that Cyprus was the children's
country of habitual residence.
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This appeal followed, accompanied by an Emergency Motion
to Stay Judgment of the District Court. We granted the Motion to
Stay on October 28, 2010. That stay was modified and other
conditions were imposed on the mother as a result of actions she
unilaterally took during the pendency of the appeal.2
II.
We review the district court's interpretation of the
Hague Convention de novo. Danaipour v. McLarey, 286 F.3d 1, 13
2
On November 9, 2010, Savvas filed an Emergency Motion to
Modify Stay in response to several incidents involving Elizabeth's
treatment of A.C. and N.C., including her unilateral decision to
have N.C. hospitalized for behavioral issues. The Motion sought
reconsideration of our Order granting the stay, or, in the
alternative, a modification of the stay to award Savvas complete
temporary custody of the children until the stay is lifted. The
Motion also requested (1) an order that each parent must confer
with the other regarding decisions relating to medical treatment of
the children, and (2) an order that neither party may initiate
proceedings that would involve any custodial determination by any
court.
Except for the request to modify the stay, we transferred
all aspects of the Emergency Motion to the district court. The
district court held a conference with counsel on November 15, 2010,
and issued an order the same day, which concluded that Elizabeth's
actions referenced in Savvas's Emergency Motion "appear to reflect
a panicked parent seeking to avoid the then-pending November 2,
2010 turnover date." The district court granted the Emergency
Motion in part, ordering that: (1) neither parent obtain medical or
mental health treatment without notice to the other parent; (2) in
the event that one of the children requires emergency medical care,
the parent deciding to seek such care must notify the other parent
within thirty minutes of the decision; (3) Savvas and Elizabeth
have equal parental rights pending the outcome of the appeal; and
(4) neither party may initiate proceedings that would involve any
determination of custody while this matter remains pending.
Finally, the court allowed Elizabeth to retain short-term custody
of the children, but provided Savvas with specific visitation
times. These conditions have remained in place pending the outcome
of this appeal and have not been challenged.
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(1st Cir. 2002). We review the district court's findings of fact
for clear error, and its application of the Convention to the facts
de novo. Id.
The Hague Convention was enacted to "secure the prompt
return of children wrongfully removed to or retained in any
Contracting State" and to "ensure that rights of custody and of
access under the law of one Contracting State are effectively
respected in the other Contracting States." Hague Convention, art.
1; see also Abbott v. Abbott, 130 S. Ct. 1983, 1989 (2010). The
Convention establishes a strong presumption favoring return of a
wrongfully removed child, Danaipour, 286 F.3d at 13, and is "based
on the principle that the best interests of the child are well
served when decisions regarding custody rights are made in the
country of habitual residence," Abbott, 130 S. Ct. at 1995. The
Hague Convention is generally intended to restore the status quo
before the removal and to prevent a parent from engaging in
international forum shopping. Kufner v. Kufner, 519 F.3d 33, 38
(1st Cir. 2008). We interpret the Convention's text mindful of
these purposes. Abbott, 130 S. Ct. at 1990.
Children who have been wrongfully retained outside of
their country of habitual residence must be expeditiously returned,
unless the respondent can prove one of the defenses provided for by
the Convention. Hague Convention, arts. 12-13. In the district
court, Elizabeth invoked the Article 13(b) defense that returning
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N.C. and A.C. to Cyprus would create a "grave risk" of "physical or
psychological harm" or "otherwise place the child[ren] in an
intolerable situation." Id. at art. 13. Specifically, she alleged
a grave risk of such harm existed based on the children having been
physically, sexually or psychologically abused by Savvas and his
mother. She also argued that returning to Cyprus would place her
own safety at risk, thus causing her children psychological harm.3
See Walsh v. Walsh, 221 F.3d 204, 220 (1st Cir. 2000). The
district court rejected Elizabeth's argument based on its findings
of fact.
On appeal, Elizabeth waives most of her claims and only
pursues discrete portions of her grave risk defense. Specifically,
Elizabeth has abandoned a primary claim she made to the district
court: that N.C. or A.C. would be subject to physical harm in the
form of sexual or other abuse upon their return to Cyprus. On
appeal, Elizabeth has not contested the district court's findings
on this point.4
3
Before the district court, Elizabeth also invoked the
defense, which the court rejected, that Savvas "had consented to or
subsequently acquiesced in the removal or retention" of the
children in the United States. Hague Convention, art. 13(a).
4
In any event, the record firmly supports the district
court's conclusions. Elizabeth had N.C. evaluated for sexual abuse
in connection with these proceedings, but there was insufficient
evidence to support any finding that N.C. was the victim of sexual
abuse. Furthermore, Elizabeth admitted she had never complained
about such abuse to anyone while in Cyprus. Neither N.C.'s
teachers nor N.C.'s pediatrician saw any signs of abuse, nor did
any of the family members. The district court's conclusions that
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The only questions on appeal are (1) whether the district
court erred in its interpretation of the Hague Convention
concerning any psychological harm to the children that returning
them to Cyprus could cause, and (2) whether it was clearly
erroneous for the district court to conclude that Elizabeth had not
demonstrated that any spousal abuse would create a grave risk to
the children.
Under Article 13(b), "grave" means a more than serious
risk, but it need not be an immediate risk. See Danaipour, 286
F.3d at 14 (citing Hague International Child Abduction Convention:
Text and Legal Analysis, 51 Fed. Reg. 10,494, 10,510 (Mar. 26,
1986)); Walsh, 221 F.3d at 218. Elizabeth bears the burden of
establishing the existence of such a grave risk by clear and
convincing evidence. 42 U.S.C. § 11603(e)(2)(A). The district
court's conclusion that she failed to meet her burden is not in
error and is strongly supported by the record.
Elizabeth "has simply not established by any evidence that her
Children were sexually abused by their Father or anyone else living
in Cyprus" and that "both parents love their children and neither
would or did sexually abuse them" are amply supported.
With respect to other abuse, the record reflects genuine
and reasonable disagreements between Elizabeth and Savvas regarding
proper methods of discipline; it does not reflect physical abuse
rising to a level "a great deal more than minimal" as required to
make a showing of grave risk. Walsh v. Walsh, 221 F.3d 204, 218
(1st Cir. 2000).
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A. Psychological Harm
Elizabeth argues that the district court made an error of
law and asserts that the court only considered physical harm,
sexual abuse, and spousal abuse, and overlooked the question of
"psychological harm," a term used in Article 13(b).
The argument flatly ignores the fact that the district
court made an express finding that Elizabeth had failed to meet her
burden of showing psychological harm: "Respondent has not shown by
clear and convincing evidence that returning the Children to Cyprus
will expose them to physical or psychological harm or otherwise
place them in an intolerable situation." Charalambous, 2010 WL
4115495, at *8 (emphasis added); cf. Whallon v. Lynn, 230 F.3d 450,
460 (1st Cir. 2000) (rejecting argument that the court overlooked
psychological harm).
There was no error of law in the district court's
organization of the subsidiary discussions of Elizabeth's Article
13(b) claims under the subject-headings "Sexual Abuse," "Physical
Abuse," and "Spousal Abuse"; these were the central arguments she
advanced. This organization does not betray a failure to consider
the risk that returning the children to Cyprus would cause them
psychological harm.
The district court was highly attuned to the
psychological well-being of N.C. and A.C., and to the risks
presented to the children's emotional well-being. The district
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court also explicitly considered the forms of psychological harm
that Elizabeth identifies: the risks that returning N.C. and A.C.
to Cyprus might force them to witness future spousal abuse (they
had not witnessed any before), or force their separation from their
mother should Elizabeth choose not to return to Cyprus. The
finding that she had failed to meet her burden of showing grave
risk of psychological harm to the children is amply supported.
On appeal, Elizabeth also argues the district court
failed to adequately consider the risk that, if returned to Cyprus,
N.C. will be less likely to get the psychological treatment she
believes he needs. She says that treatment is unavailable, citing
that there are only three therapists specializing in the treatment
of children in Limassol,5 and that Savvas's extended family will
prevent N.C. from obtaining the psychological services he
requires.6 The district court explicitly considered "the . . .
evidence relating to the influence of the Charalambous family in
Cyprus," and concluded that "the total weight of the evidence does
not present a clear and convincing case of grave risk."
Charalambous, 2010 WL 4115495, at *11. "The Article 13(b) defense
5
The record contains no evidence as to other services that
might be available in Cyprus outside of Limassol, including in the
capital city of Nicosia. There are only Elizabeth's statements
that she had "never come across a child psychologist" during her
time in Cyprus and that there were no mental health programs in the
private schools in which she worked as a teacher.
6
It is not at all clear why the family would be motivated
to deny psychological services if N.C. were in need of them.
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may not be used 'as a vehicle to litigate (or relitigate) the
child's best interests.'" Danaipour, 286 F.3d at 14 (quoting Hague
International Child Abduction Convention: Text and Legal Analysis,
51 Fed. Reg. at 10,510).
The Second Circuit's decision in Blondin v. Dubois, 238
F.3d 153 (2d Cir. 2001), does not help Elizabeth. That decision
was based on a diagnosis that the children's post-traumatic stress
disorder would recur if they were returned to their home country,
id. at 160-61, not the relative availability of resources in each
country. The court expressly rejected the argument, made here by
Elizabeth, that the grave risk exception prevents "return to a home
where money is in short supply, or where educational or other
opportunities are more limited than in the requested State."7 Id.
at 162 (quoting 51 Fed. Reg. at 10,510).
7
The court further explained:
In other words, at one end of the spectrum are
those situations where repatriation might
cause inconvenience or hardship, eliminate
certain educational or economic opportunities,
or not comport with the child's preferences;
at the other end of the spectrum are those
situations in which the child faces a real
risk of being hurt, physically or
psychologically, as a result of repatriation.
The former do not constitute a grave risk of
harm under Article 13(b); the latter do.
Blondin v. Dubois, 238 F.3d 153, 162 (2d Cir. 2001).
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B. Spousal Abuse
The relevant inquiry is not whether there would be a
grave risk of harm to Elizabeth if she returned to Cyprus; rather,
the grave risk inquiry goes to the children. See Abbott, 130 S.
Ct. at 1997 (noting that if respondent could demonstrate returning
child to home country "would put her own safety at grave risk, the
court could consider whether this is sufficient to show that the
child too would suffer 'psychological harm'"); Walsh, 221 F.3d at
220. Elizabeth failed to draw a connection establishing, by clear
and convincing evidence, that any risk to her constituted a grave
risk to the children.
The district court found that "Elizabeth was subjected to
some verbal and emotional abuse and that there was one incident of
physical abuse" which "did not require any medical treatment."8
The court further determined that "the record does not reflect that
N.C. and A.C. have witnessed their father being abusive toward
their mother." In light of these findings,9 the court reasoned it
8
The district court made these findings having credited
all of Elizabeth's testimony. But the court noted that both
Elizabeth and Savvas lacked credibility in certain respects. The
record also reflects that Elizabeth did not consider herself a
victim of domestic abuse while in Cyprus and that she did not seek
protection under Cyprus's domestic abuse laws. We do not enter the
parties' dispute over the effectiveness of such laws.
9
There were inconsistencies between Elizabeth's testimony
about her treatment by Savvas and her characterizations of him in
an email dated March 8, 2010, an email Elizabeth testified was a
mere exercise suggested by a marriage counselor they saw in Cyprus.
Among other things in the e-mail, she said to him, "You treat me
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could not conclude "the Children would suffer from psychological
harm or be placed in an intolerable situation based on spousal
abuse if they are returned."
Elizabeth argues the district court's findings are
clearly erroneous. We disagree. The record supports the district
court's conclusion that there was only one act of physical abuse,
an incident in April 2010 in which Savvas braced Elizabeth against
a wall during an argument and held his hand next to her face.
Elizabeth does not specify any other incidents that the district
court overlooked. The record also supports the district court's
conclusion that neither N.C. nor A.C. witnessed any act of physical
abuse, which further suggests the lack of grave risk to the
children. Further, Elizabeth has avowed not to return to Cyprus
due to her subjective personal fears; if she does not return that
removes any risk of the children witnessing any future abusive acts
in Cyprus.
In view of the district court's well supported findings,
there is no grave risk to the children under Article 13(b)
associated with any potential future abuse of their mother. Cf.
Walsh, 221 F.3d at 209-12; see also Whallon, 230 F.3d at 460
very well," and "I can feel safe with you," and "I know you will
never hurt me." She also said, "Whenever I ask for help, you are
always there for me." As to the children and their father she
said, "You are wonderfully connected to your children and you are
very involved in their lives and upbringing," and "You are such a
gentle and kind and loving father."
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("[A]llegations of verbal abuse and an incident of physical shoving
are distinct from the 'clear and long history of spousal abuse'
presented in Walsh.").
Finally, Elizabeth argues that the district court failed
to consider the impact that returning the children to Cyprus
without their mother would have on them, given her stated choice to
remain in the United States regardless. She focuses on evidence of
the "extraordinary attachment" between the children and their
mother.
The district court supportably found that Elizabeth's
stated refusal to return to Cyprus was based upon "her subjective
perception of a threat" that was "not corroborated by other
evidence in the record." Charalambous, 2010 WL 4115495, at *11.
Regardless, the court weighed the consequences of Elizabeth
choosing not to return to Cyprus, and concluded that "the
alternative of allowing these children to remain wrongfully
retained in this country is equally likely to traumatize the
children."10 Id. at *12. Elizabeth offers no argument on appeal
as to why that is not so. The district court correctly concluded
that "the impact of any loss of contact with the Mother is
something that must be resolved by the courts of the Children's
habitual residence." Id.; see also Abbott, 130 S. Ct. at 1995. We
10
Elizabeth admitted that in fact her relationship with
N.C. in Cyprus was not as close as Savvas's relationship with N.C.
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point out that Elizabeth is free, in the courts of Cyprus, to seek
custody of the children and such other orders as may become
necessary as to the children.
III.
We affirm the judgment entered by the district court on
October 12, 2010. We find no error in the district court's
Findings of Fact and Conclusions of Law, and we approve all aspects
of the district court's orders pertaining to removal.
The respondent is ordered to return N.C. and A.C. to the
petitioner no later than 12:00 p.m. on Thursday, December 9, 2010.
The interim conditions imposed by the district court's November 15,
2010 Order remain in place until the children are removed from the
United States. We return jurisdiction to the district court for
any necessary enforcement orders.
Mandate to issue forthwith.
So ordered.
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