Eleventh Circuit Affirms Grave Risk Exception to the Hague Convention in Denying Child’s Return to Venezuela

In Gomez v. Fuenmayor, No. 15­–­­­12075, 2016 WL 454037 (11th Cir. Feb. 5, 2016), the Eleventh Circuit affirmed the Southern District of Florida’s denial of Hayet Gomez’s (“Gomez”) petition to have her daughter, M.N., returned to her custody in their native Venezuela.  This appeal arose out of an international custody battle fraught with danger and intrigue.  The Eleventh Circuit determined that significant threats and violence directed toward M.N.’s father, Jose Fuenmayor (“Fuenmayor”), constituted a grave risk of harm to M.N. under the Hague Convention on the Civil Aspects of International Child Abduction (“Convention”).  Finding that the grave risk exception applied, the court disallowed M.N.’s repatriation despite the fact that Gomez made out a prima facie case at her bench trial.

Gomez and Fuenmayor’s custody battle over their four-year-old daughter, M.N., largely began in 2012 when Gomez and her husband, Anibangel Molina Anais (“Molina”), started making repeated threats against Fuenmayor and his family. In July 2012, Gomez and Molina left Venezuela with M.N. and took her to Miami.  Fuenmayor successfully sought her return under the Convention in the United States District Court for the Southern District of Florida, where the judge awarded him primary custody rights while granting Gomez supervised visitation rights.  In October of 2013, in a proceeding where Gomez was accompanied by armed guards, a Venezuelan court ordered a continuation of the Florida district court’s custody arrangement, causing Gomez to outburst in court with threats against Fuenmayor’s life.  Three days later, Fuenmayor’s girlfriend’s car was shot at and struck after attending a birthday party with M.N.  Violence and death threats continued, with vandals breaking into Fuenmayor’s parents’ building, trashing his mother’s car, planting drugs on her property, and threatening her life.  Further, Gomez’s brother and armed men went looking for Fuenmayor’s sister at her place of employment, offering money in exchange for information on her whereabouts.

In February of 2014, a Venezuelan court entered an order prohibiting M.N. from leaving the country, pursuant to Fuenmayor’s request.  Nonetheless, Fuenmayor subsequently fled with M.N. to the United States after forging the necessary authorization from Gomez.  In December of 2014, Gomez filed an unsuccessful complaint seeking M.N.’s return to Venezuela under the rules found in the Convention, and timely appealed.

The issues before the Eleventh Circuit were whether threats and violence directed against a parent, but not specifically against the child, could constitute a grave risk to the child within the meaning of the Convention, and whether there was clear and convincing evidence of grave risk to M.N. if she were returned to Venezuela.  Although the central goal of the Convention is the return remedy for wrongfully removed children, and Fuenmayor’s wrongful removal of M.N. from Venezuela was without dispute, the court held that Fuenmayor had established the affirmative defense of “grave risk.”  Gomez argued that the risk Fuenmayor faced was irrelevant to M.N.’s cognizable risk, and that any risk M.N. faced was not sufficiently grave. The court rejected that argument, holding that “where violence is directed at a parent that may threaten the well-being of a child, the exception found in the Convention may apply,” and that the threats to Fuenmayor sufficiently “establish a grave risk to his daughter.” Id. at *6.

Finally, the court concluded that clear and convincing evidence supported the determination that M.N. would face a grave risk of harm if she were to be returned to Venezuela, and affirmed the district court’s denial of Gomez’s petition.

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